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As filed with the Securities and Exchange Commission on March 23, 2021
Registration Statement Nos. 333-           , 333-           -01 and 333-           -02​
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NextEra Energy, Inc.
NextEra Energy Capital Holdings, Inc.
Florida Power & Light Company
(Exact name of each registrant as
specified in its charter)
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Florida
Florida
Florida
(State or other jurisdiction of
incorporation or organization)
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59-2449419
59-2576416
59-0247775
(I.R.S. Employer
Identification No.)
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700 Universe Boulevard
Juno Beach, Florida 33408-0420
(561) 694-4000
(Address, including zip code, and telephone number, including area code, of registrants’ principal executive office)
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Charles E. Sieving, Esq.
Executive Vice President &
General Counsel
NextEra Energy, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
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James E. Morgan, III, Esq.
Squire Patton Boggs (US) LLP
200 South Biscayne, Suite 4700
Miami, Florida 33131
(305) 577-7000
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Thomas P. Giblin, Jr., Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
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(Names and addresses, including zip codes, and telephone numbers, including area codes, of agents for service)
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It is respectfully requested that the Commission also send copies of all notices, orders and communications to:
Steven C. Friend, Esq.
Hunton Andrews Kurth LLP
200 Park Avenue
New York, New York 10166
(212) 309-1000
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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.
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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. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act of 1933 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 of 1933, check the following box and list the Securities Act of 1933 registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act of 1933, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act of 1933, check the following box. ☐
Indicate by check mark whether each registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934.
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Large
Accelerated Filer
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Accelerated
Filer
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Non-Accelerated
Filer
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Smaller Reporting
Company
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Emerging
Growth Company
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NextEra Energy, Inc. ​ ​ ​ ​ ☒ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​
NextEra Energy Capital Holdings, Inc. ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☒ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​
Florida Power & Light Company ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☒ ​ ​ ​ ​ ​ ☐ ​ ​ ​ ​ ​ ☐ ​ ​
If an emerging growth company, indicate by check mark if each registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act of 1933.
​ NextEra Energy, Inc. ​ ​ ​ ​ ☐ ​ ​
​ NextEra Energy Capital Holdings, Inc. ​ ​ ​ ​ ☐ ​ ​
​ Florida Power & Light Company ​ ​ ​ ​ ☐ ​ ​
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered
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Proposed Maximum Aggregate
Offering Price(1)
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Amount of Registration
Fee
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NextEra Energy, Inc. ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Common Stock, $.01 par value ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Preferred Stock ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Depositary Shares ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Stock Purchase Contracts ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Stock Purchase Units ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Warrants ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Senior Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Subordinated Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Junior Subordinated Debentures ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Guarantee of NextEra Energy Capital Holdings, Inc. Preferred Stock ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Guarantee of NextEra Energy Capital Holdings, Inc. Depositary Shares ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Guarantee of NextEra Energy Capital Holdings, Inc. Senior Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy, Inc. Subordinated Guarantee of NextEra Energy ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Capital Holdings, Inc. Subordinated Debt Securities
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NextEra Energy, Inc. Junior Subordinated Guarantee of NextEra ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Energy Capital Holdings, Inc. Junior Subordinated Debentures
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NextEra Energy Capital Holdings, Inc. ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy Capital Holdings, Inc. Preferred Stock ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy Capital Holdings, Inc. Depositary Shares ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy Capital Holdings, Inc. Senior Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy Capital Holdings, Inc. Subordinated Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
NextEra Energy Capital Holdings, Inc. Junior Subordinated Debentures ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Florida Power & Light Company ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Florida Power & Light Company Preferred Stock ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Florida Power & Light Company Warrants ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Florida Power & Light Company First Mortgage Bonds ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Florida Power & Light Company Senior Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Florida Power & Light Company Subordinated Debt Securities ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​
Total
​ ​ ​ ​ ​ ​ ​ ​ $ 0(2) ​ ​
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(1)
An unspecified aggregate offering of the securities of each identified class is being registered as may from time to time be offered by NextEra Energy, Inc., NextEra Energy Capital Holdings, Inc. and Florida Power & Light Company or sold by a selling securityholder, if and as allowed, at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder.
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(2)
In connection with the securities offered hereby, the registrants will pay “pay-as-you-go registration fees” in accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933.
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EXPLANATORY NOTE
This registration statement contains two forms of prospectuses, the first of which is to be used in connection with offerings of the securities referenced in clause (1) below, and the second of which is to be used in connection with offerings of the securities referenced in clause (2) below:
(1)
the securities of NextEra Energy, Inc. and NextEra Energy Capital Holdings, Inc. registered pursuant to this registration statement, and
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(2)
the securities of Florida Power & Light Company registered pursuant to this registration statement.
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Each offering of securities made under this registration statement will be made pursuant to one of these prospectuses, with the specific terms of the securities offered thereby set forth in an accompanying prospectus supplement.
 
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PROSPECTUS
NextEra Energy, Inc.
Common Stock, Preferred Stock, Depositary Shares,
Stock Purchase Contracts, Stock Purchase Units, Warrants,
Senior Debt Securities, Subordinated Debt Securities
and Junior Subordinated Debentures
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NextEra Energy Capital Holdings, Inc.
Preferred Stock, Depositary Shares, Senior Debt Securities,
Subordinated Debt Securities and Junior Subordinated Debentures
Guaranteed as described in this prospectus by
NextEra Energy, Inc.
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NextEra Energy, Inc. (“NEE”) and/or NextEra Energy Capital Holdings, Inc. (“NEE Capital”) may offer any combination of the securities described in this prospectus in one or more offerings from time to time in amounts authorized from time to time. This prospectus may also be used by a selling securityholder of the securities described herein.
NEE and/or NEE 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.
NEE’s common stock is listed on the New York Stock Exchange and trades under the symbol “NEE.”
NEE and/or NEE 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 beginning on page 40 of this prospectus also provides more information on this topic.
See “Risk Factors” beginning on page  1 of this prospectus to read about certain factors you should consider before purchasing any of the securities being offered.
NEE’s and NEE Capital’s principal executive offices are located at 700 Universe Boulevard, Juno Beach, Florida 33408-0420, telephone number (561) 694-4000, and their mailing address is P.O. Box 14000, Juno Beach, Florida 33408-0420.
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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.
March 23, 2021
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that NEE, NEE Capital, and Florida Power & Light Company (“FPL”) have filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration process.
Under this shelf registration process, NEE and/or NEE Capital may issue and sell any combination of the securities described in this prospectus in one or more offerings from time to time in amounts authorized by the board of directors of NEE or NEE Capital, as the case may be. NEE may offer any of the following securities: common stock, preferred stock, depositary shares, stock purchase contracts, stock purchase units, warrants to purchase common stock, preferred stock or depositary shares, senior debt securities, subordinated debt securities and junior subordinated debentures and guarantees related to the preferred stock, depositary shares, senior debt securities, subordinated debt securities and junior subordinated debentures that NEE Capital may offer. NEE Capital may offer any of the following securities: preferred stock, depositary shares, senior debt securities, subordinated debt securities and junior subordinated debentures.
This prospectus provides you with a general description of the securities that NEE and/or NEE Capital may offer. Each time NEE and/or NEE Capital sells securities, NEE and/or NEE Capital will provide a prospectus supplement that will contain specific information about the terms of that offering. Material United States federal income tax considerations applicable to the offered securities will be discussed in the applicable prospectus supplement if necessary. The applicable prospectus supplement may also add, update or change information contained in this prospectus. You should carefully read both this prospectus and any applicable prospectus supplement together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation by Reference.”
For more detailed information about the securities, please read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or incorporated by reference from earlier SEC filings listed in the registration statement.
RISK FACTORS
Before purchasing the securities, investors should carefully consider the risk factors described in NEE’s annual, quarterly and current reports filed with the SEC under the Securities Exchange Act of 1934, which are incorporated by reference into this prospectus, together with the other information incorporated by reference or provided in this prospectus or in a related prospectus supplement in order to evaluate an investment in the securities.
NEE
NEE is a holding company incorporated in 1984 as a Florida corporation and conducts its operations principally through its wholly-owned subsidiaries, FPL and, indirectly through NEE Capital, NextEra Energy Resources, LLC and NextEra Energy Transmission, LLC (collectively “NEER”). FPL is a rate-regulated electric utility engaged primarily in the generation, transmission, distribution and sale of electric energy in Florida. NEER currently owns, develops, constructs, manages and operates electric generation facilities in wholesale energy markets in the U.S. and Canada. NEER produces the majority of its electricity from clean and renewable sources, including wind and solar. In addition, NEER develops and constructs battery storage projects and also owns and operates rate-regulated transmission facilities, primarily in Texas and California, and transmission lines that connect its electric generation facilities to the electric grid. NEER also engages in energy-related commodity marketing and trading activities and participates in natural gas, natural gas liquids and oil production and in pipeline infrastructure construction, management and operations.
NEE’s principal executive offices are located at 700 Universe Boulevard, Juno Beach, Florida 33408, telephone number (561) 694-4000, and its mailing address is P.O. Box 14000, Juno Beach, Florida 33408-0420.
 
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NEE CAPITAL
NEE Capital owns and provides funding for all of NEE’s operating subsidiaries other than FPL and its subsidiaries. NEE Capital was incorporated in 1985 as a Florida corporation and is a wholly-owned subsidiary of NEE.
NEE Capital’s principal executive offices are located at 700 Universe Boulevard, Juno Beach, Florida 33408, telephone number (561) 694-4000, and its mailing address is P.O. Box 14000, Juno Beach, Florida 33408-0420.
USE OF PROCEEDS
Unless otherwise stated in a prospectus supplement, NEE and NEE Capital will each add the net proceeds from the sale of its securities to its respective general funds. NEE uses its general funds for corporate purposes, including to provide funds for its subsidiaries, to repurchase common stock and to repay, redeem or repurchase outstanding debt or equity issued by its subsidiaries. NEE Capital uses its general funds for corporate purposes, including to repay short-term borrowings and to repay, redeem or repurchase outstanding debt. NEE and NEE Capital may each temporarily invest any proceeds that it does not need to use immediately in short-term instruments.
WHERE YOU CAN FIND MORE INFORMATION
NEE files annual, quarterly and other reports and other information with the SEC. You can read and copy any information filed by NEE with the SEC. The SEC maintains an internet website (www.sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including NEE. NEE also maintains an internet website (www.nexteraenergy.com). Information on NEE’s internet website or any of its subsidiaries’ internet websites is not a part of this prospectus.
NEE Capital does not file and does not intend to file reports or other information with the SEC under Sections 13 or 15(d) of the Securities Exchange Act of 1934. NEE includes summarized financial information relating to NEE Capital in some of its reports filed with the SEC.
INCORPORATION BY REFERENCE
The SEC allows NEE and NEE Capital to “incorporate by reference” information that NEE files with the SEC, which means that NEE and NEE Capital 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. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement in any subsequently filed document which also is or is deemed to be incorporated in this prospectus modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. NEE and NEE Capital are incorporating by reference the documents listed below and any future filings NEE makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus (other than any documents, or portions of documents, not deemed to be filed) until NEE and/or NEE Capital sell all of the securities covered by the registration statement:
(1)
NEE’s Annual Report on Form 10-K for the year ended December 31, 2020,
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(2)
NEE’s Current Reports on Form 8-K filed with the SEC on January 11, 2021 (excluding those portions furnished and not filed), February 12, 2021, February 22, 2021, March 1, 2021, March 12, 2021 and March 17, 2021, and
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(3)
the description of the NEE common stock contained in NEE’s Current Report on Form 8-K/A filed with the SEC on October 30, 2020, and any amendments or reports filed for the purpose of updating such description.
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You may request a copy of these documents, at no cost to you, by writing or calling Thomas P. Giblin, Jr., Esq., Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, (212) 309-6000. NEE will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus.
FORWARD-LOOKING STATEMENTS
In connection with the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, NEE and NEE Capital are herein filing cautionary statements identifying important factors that could cause NEE’s and NEE Capital’s actual results to differ materially from those projected in forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, made by or on behalf of NEE and NEE Capital in this prospectus or any prospectus supplement, in presentations, in response to questions or otherwise. Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions, strategies, future events or performance (often, but not always, through the use of words or phrases such as “may result,” “are expected to,” “will continue,” “is anticipated,” “believe,” “will,” “could,” “should,” “would,” “estimated,” “may,” “plan,” “potential,” “future,” “projection,” “goals,” “target,” “outlook,” “predict,” and “intend” or words of similar meaning) are not statements of historical facts and may be forward-looking. Forward-looking statements involve estimates, assumptions and uncertainties. Accordingly, any such statements are qualified in their entirety by reference to, and are accompanied by, important factors discussed in NEE’s reports that are incorporated herein by reference (in addition to any assumptions and other factors referred to specifically in connection with such forward-looking statements) that could have a significant impact on NEE’s and NEE Capital’s operations and financial results, and could cause NEE’s and/or NEE Capital’s actual results to differ materially from those contained or implied in forward-looking statements made by or on behalf of NEE or NEE Capital.
Any forward-looking statement speaks only as of the date on which such statement is made, and NEE and NEE Capital undertake no obligation to update any forward-looking statement to reflect events or circumstances, including, but not limited to, unanticipated events, after the date on which such statement is made, unless otherwise required by law. New factors emerge from time to time and it is not possible for management to predict all of such factors, nor can it assess the impact of each such factor on the business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained or implied in any forward-looking statement.
The issues and associated risks and uncertainties discussed in the reports that are incorporated herein by reference are not the only ones NEE or NEE Capital may face. Additional issues may arise or become material as the energy industry evolves. The risks and uncertainties associated with those additional issues could impair NEE’s and NEE Capital’s businesses in the future.
DESCRIPTION OF NEE COMMON STOCK
The following summary description of the terms of the common stock of NEE is not intended to be complete. The description is qualified in its entirety by reference to the provisions of NEE’s Restated Articles of Incorporation, as currently in effect (“NEE’s Charter”), and Amended and Restated Bylaws, as currently in effect (“NEE’s Bylaws”), and the other documents described below. Each of NEE’s Charter and NEE’s Bylaws and the other documents described below has previously been filed with the SEC and they are exhibits to the registration statement filed with the SEC of which this prospectus is a part. Reference is also made to the Florida Business Corporation Act, or “Florida Act,” and other applicable laws.
Authorized and Outstanding Capital Stock
NEE’s Charter authorizes it to issue 3,300,000,000 shares of capital stock, each with a par value of $.01, consisting of:
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3,200,000,000 shares of common stock, and
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100,000,000 shares of preferred stock.
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As of January 31, 2021, there were 1,959,874,682 shares of common stock and no shares of preferred stock outstanding.
Common Stock Terms
Voting Rights.   In general, each holder of common stock is entitled to one vote for each share held by such holder on all matters submitted to a vote of holders of common stock, including the election of directors. Each holder of common stock is entitled to attend all special and annual meetings of NEE’s shareholders. The holders of common stock do not have cumulative voting rights.
In general, if a quorum exists at a meeting of NEE’s shareholders, unless a greater or different vote is required by the Florida Act, NEE’s Charter or NEE’s Bylaws, or by action of the board of directors, (1) on all matters other than the election of directors, action on such matters will be approved if the votes cast favoring the action exceed the votes cast opposing the action, (2) in an uncontested director election, a nominee for director will be elected if the votes cast for the nominee’s election exceed the votes cast against the nominee’s election, and (3) in a contested director election, which is an election in which the number of persons considered for election to the board of directors exceeds the total number of directors to be elected, a nominee for director will be elected by a plurality of the votes cast. Other voting rights of shareholders are described below under “— Anti-Takeover Effects of Provisions in NEE’s Charter and NEE’s Bylaws.”
Dividend Rights.   The holders of common stock are entitled to participate on an equal per share basis in any dividends declared on the common stock by NEE’s board of directors out of funds legally available for dividend payments.
The declaration and payment of dividends on the common stock is within the sole discretion of NEE’s board of directors. NEE’s Charter does not limit the dividends that may be paid on the common stock.
The ability of NEE to pay dividends on the common stock is currently subject to, and in the future may be limited by:
•
various risks which affect the businesses of FPL and NEE’s other subsidiaries that may in certain instances limit the ability of such subsidiaries to pay dividends to NEE, and
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•
various contractual restrictions applicable to NEE and some of its subsidiaries, including those described below.
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FPL is subject to the terms of its Mortgage and Deed of Trust dated as of January 1, 1944, with Deutsche Bank Trust Company Americas, as mortgage trustee, as amended and supplemented from time to time (the “FPL Mortgage”), that secures its obligations under outstanding first mortgage bonds issued by it from time to time. In specified circumstances, the terms of the FPL Mortgage could restrict the amount of retained earnings that FPL can use to pay cash dividends on its common stock. As of the date of this prospectus, no retained earnings were restricted by these provisions of the FPL Mortgage.
Other contractual restrictions on the dividend-paying ability of NEE and its subsidiaries are contained in outstanding financing arrangements, and similar or other restrictions may be included in future financing arrangements. As of the date of this prospectus, NEE has equity units outstanding. In accordance with the terms of the equity units, NEE has the right, from time to time, to defer the payment of contract adjustment payments on the purchase contracts that form a part of the equity units to a date no later than the applicable purchase contract settlement date. As of the date of this prospectus, NEE Capital has junior subordinated debentures outstanding. In accordance with the terms of the junior subordinated debentures NEE Capital has the right, from time to time, to defer the payment of interest on its outstanding junior subordinated debentures on one or more occasions for up to ten consecutive years. NEE, FPL and NEE Capital may issue, from time to time, additional equity units, junior subordinated debentures or other securities that (i) provide them with rights to defer the payment of interest or other payments and (ii) contain dividend restrictions in the event of the exercise of such rights. In the event that NEE or NEE Capital were to exercise any right to defer interest or other payments on currently outstanding or future series of equity units, junior subordinated debentures or other securities, or if there were to occur certain payment defaults on those securities, NEE would not be able, with limited exceptions, to pay dividends on the common
 
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stock during the periods in which such payments were deferred or such payment defaults continued. In the event that FPL was to issue equity units, junior subordinated debentures or other securities having similar provisions and was to exercise any such right to defer the payment of interest or other payments on such securities, or if there was to occur certain payment defaults on those securities, FPL would not be able, with limited exceptions, to pay dividends to NEE or any other holder of its common stock or preferred stock during the periods in which such payments were deferred or such payment defaults continued. In addition, NEE, NEE Capital and FPL might issue other securities in the future containing similar or other restrictions on, or that affect, NEE’s ability to pay dividends on its common stock and on the ability of NEE’s subsidiaries, including NEE Capital and FPL, to pay dividends to any holder of their respective common stock or preferred stock, including NEE.
In addition, the right of the holders of NEE’s common stock to receive dividends might become subject to the preferential dividend, redemption, sinking fund or other rights of the holders of any series of NEE preferred stock that may be issued in the future, and the right of the holders (including NEE) of FPL or NEE Capital, as the case may be, common stock or preferred stock, as the case may be, to receive dividends might become subject to the preferential dividend, redemption, sinking fund or other rights of the holders of any series of FPL or NEE Capital, as the case may be, preferred stock that may be issued in the future.
Liquidation Rights.   If there is a liquidation, dissolution or winding up of NEE, the holders of common stock are entitled to share equally and ratably in any assets remaining after NEE has paid, or provided for the payment of, all of its debts and other liabilities, and after NEE has paid, or provided for the payment of, any preferential amounts payable to the holders of any outstanding preferred stock.
Other Rights.   The holders of common stock do not have any preemptive, subscription, conversion or sinking fund rights. The common stock is not subject to redemption.
Anti-Takeover Effects of Provisions in NEE’s Charter and NEE’s Bylaws
NEE’s Charter and NEE’s Bylaws contain provisions that may make it difficult and expensive for a third party to pursue a takeover attempt that NEE’s board of directors and management oppose even if a change in control of NEE might be beneficial to the interests of holders of common stock.
NEE’s Charter Provisions.   Among NEE’s Charter provisions that could have an anti-takeover effect are those that:
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provide that a vacancy on the board of directors may be filled only by a majority vote of the remaining directors,
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•
prohibit the shareholders from taking action by written consent in lieu of a meeting of shareholders,
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limit the persons who may call a special meeting of shareholders to the chairman of the NEE board of directors, the president or the secretary, a majority of the board of directors or the holders of 20% of the outstanding shares of stock entitled to vote on the matter or matters to be presented at the meeting,
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require any action by shareholders to amend or repeal NEE’s Bylaws, or to adopt new bylaws, to receive the affirmative vote of holders of at least a majority of the voting power of the outstanding shares of voting stock, voting together as a single class, and
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require the affirmative vote of holders of at least a majority of the voting power of the outstanding shares of voting stock, voting together as a single class, to alter, amend or repeal specified provisions of NEE’s Charter, including the foregoing provisions.
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NEE’s Bylaw Provisions.   NEE’s Bylaws contain some of the foregoing provisions contained in NEE’s Charter. NEE’s Bylaws also contain a provision limiting to 16 directors the maximum number of authorized directors of NEE. In addition, NEE’s Bylaws contain provisions that establish advance notice requirements for shareholders to nominate candidates for election as directors at any annual or special meeting of shareholders or to present any other business for consideration at any annual meeting of shareholders. These provisions generally require a shareholder to submit in writing to NEE’s secretary any nomination of
 
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a candidate for election to the board of directors or any other proposal for consideration at any annual meeting not earlier than 120 days or later than 90 days before the first anniversary of the preceding year’s annual meeting. NEE’s Bylaws also require a shareholder to submit in writing to NEE’s secretary any nomination of a candidate for election to the board of directors for consideration at any special meeting not earlier than 120 days before such special meeting and not after the later of 90 days before such special meeting or the tenth day following the day of the first public announcement of the date of the special meeting and of the fact that directors are to be elected at the meeting. For the shareholder’s notice to be in proper form, it must include all of the information specified in NEE’s Bylaws.
Preferred Stock.   The rights and privileges of holders of common stock may be adversely affected by the rights, privileges and preferences of holders of shares of any series of preferred stock which NEE’s board of directors may authorize for issuance from time to time. NEE’s board of directors has broad discretion with respect to the creation and issuance of any series of preferred stock without shareholder approval, subject to any applicable rights of holders of any shares of preferred stock outstanding at any time. In that regard, NEE’s Charter authorizes NEE’s board of directors from time to time and without shareholder action to provide for the issuance of up to 100,000,000 shares of preferred stock in one or more series, and to determine the designations, preferences, limitations and relative or other rights of any such series, including voting rights, dividend rights, liquidation preferences, sinking fund provisions, conversion privileges and redemption rights. Among other things, by authorizing the issuance of shares of preferred stock with particular voting, conversion or other rights, the board of directors could adversely affect the voting power of the holders of common stock and could discourage any attempt to effect a change in control of NEE, even if such a transaction would be beneficial to the interests of holders of common stock. See the description of NEE’s Preferred Stock in “Description of NEE Preferred Stock.”
Restrictions on Affiliated and Control Share Transactions under Florida Act
Affiliated Transactions.   As a Florida corporation, NEE is subject to the Florida Act, which provides that a Florida corporation generally may not engage in an “affiliated transaction” with an “interested shareholder,” as those terms are defined in the statute, for three years following the date a shareholder becomes an “interested shareholder,” unless:
•
prior to the time that such shareholder became an interested shareholder, the board of directors approved either the affiliated transaction or the transaction which resulted in the shareholder becoming an interested shareholder,
​
•
upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85 percent of the voting shares of the corporation outstanding at the time the transaction commenced, subject to certain exclusions, or
​
•
at or subsequent to the time that such shareholder became an interested shareholder, the affiliated transaction is approved by the board of directors and authorized by the affirmative vote of at least two-thirds of the outstanding voting shares which are not owned by the interested shareholder.
​
The Florida Act generally defines an “interested shareholder” as any person who is the beneficial owner of more than 15% of the outstanding voting shares of the corporation. The affiliated transactions covered by the Florida Act include, with specified exceptions:
•
mergers and consolidations to which the corporation and the interested shareholder are parties,
​
•
sales or certain other dispositions of assets representing 10% or more of the aggregate fair market value of the corporation’s assets, outstanding shares, earning power or net income to the interested shareholder,
​
•
generally, issuances by the corporation of 10% or more of the aggregate fair market value of its outstanding shares to the interested shareholder,
​
•
the adoption of any plan for the liquidation or dissolution of the corporation proposed by or pursuant to an arrangement with the interested shareholder,
​
 
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•
any reclassification of the corporation’s securities, recapitalization of the corporation, merger or consolidation, or other transaction which has the effect of increasing by more than 10% the percentage of the outstanding voting shares of the corporation beneficially owned by the interested shareholder, and
​
•
the receipt by the interested shareholder of certain loans or other financial assistance from the corporation.
​
The foregoing transactions generally also include transactions involving any affiliate of the interested shareholder and involving or affecting any direct or indirect majority-owned subsidiary of the corporation.
The voting requirements above will not apply if, among other things, subject to specified qualifications:
•
the transaction has been approved by a majority of the corporation’s disinterested directors,
​
•
the interested shareholder has been the beneficial owner of at least 80% of the corporation’s outstanding voting shares for at least three years preceding the transaction,
​
•
the interested shareholder is the beneficial owner of at least 90% of the outstanding voting shares, or
​
•
specified fair price and procedural requirements are satisfied.
​
Control-Share Acquisitions.   The Florida Act also contains a control-share acquisition statute which provides that a person who acquires shares in an “issuing public corporation,” as defined in the statute, in excess of certain specified thresholds generally will not have any voting rights with respect to such shares unless such voting rights are approved by the holders of a majority of the votes of each class of securities entitled to vote separately, excluding shares held or controlled by the acquiring person. The thresholds specified in the Florida Act are the acquisition of a number of shares representing:
•
one-fifth or more, but less than one-third, of all voting power of the corporation,
​
•
one-third or more, but less than a majority, of all voting power of the corporation, or
​
•
a majority or more of all voting power of the corporation.
​
The statute does not apply if, among other things, the acquisition:
•
is approved by the corporation’s board of directors before the acquisition, or
​
•
is effected pursuant to a statutory merger or share exchange to which the corporation is a party.
​
The statute also does not apply to an acquisition of shares of a corporation in excess of a specified threshold if, before the acquisition, the corporation’s articles of incorporation or bylaws provide that the corporation will not be governed by the statute. The statute also permits a corporation to adopt a provision in its articles of incorporation or bylaws providing for the redemption of the acquired shares by the corporation in specified circumstances. NEE’s Charter and NEE’s Bylaws do not contain such provisions.
Indemnification
Florida law generally provides that a Florida corporation, such as NEE, may indemnify its directors and officers against liabilities and expenses they may incur. Florida law also limits the liability of directors to NEE and other persons. NEE’s Bylaws contain provisions requiring NEE to indemnify its directors, officers, employees and agents under specified conditions. In addition, NEE carries insurance permitted by the laws of Florida on behalf of its directors, officers, employees and agents.
Shareholder Access
NEE’s Bylaws permit a shareholder, or a group of up to 20 shareholders, owning continuously for at least three years 3% or more of NEE’s outstanding common stock (an “eligible shareholder”) to nominate and include in NEE’s annual meeting proxy materials director candidates to occupy (together with any nominees of other eligible shareholders) up to two or 20% of the number of directors in office (whichever is greater), provided that such eligible shareholder satisfies the requirements set forth in NEE’s Bylaws. Those requirements generally include receipt by NEE’s secretary of written notice from an eligible
 
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shareholder of the nomination not earlier than 150 days or later than 120 days before the first anniversary of the mailing of NEE’s proxy materials for the most recent annual meeting. For the eligible shareholder’s notice to be in proper form, it must include all of the information specified in NEE’s Bylaws.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Computershare Trust Company, N.A.
Listing
The common stock is listed on the New York Stock Exchange and trades under the symbol “NEE.”
DESCRIPTION OF NEE PREFERRED STOCK
General.   The following statements describing NEE’s preferred stock are not intended to be a complete description. For additional information, please see NEE’s Charter and NEE’s Bylaws. You should read this summary together with the articles of amendment to NEE’s Charter, which will describe the terms of any preferred stock to be offered hereby, for a complete understanding of all the provisions. Please also see the FPL Mortgage, which contains restrictions which may in certain instances restrict the amount of retained earnings that FPL can use to pay cash dividends on its common stock. Each of these documents has previously been filed, or will be filed, with the SEC and each is or will be an exhibit to the registration statement filed with the SEC of which this prospectus is a part. Reference is also made to the Florida Act and other applicable laws.
NEE Preferred Stock.   NEE may issue one or more series of its preferred stock, $.01 par value, without the approval of its shareholders. No shares of preferred stock are presently outstanding.
Some terms of a series of preferred stock may differ from those of another series. The terms of any preferred stock being offered will be described in a prospectus supplement. These terms will also be described in articles of amendment to NEE’s Charter, which will establish the terms of the preferred stock being offered. These terms will include any of the following that apply to that series:
(1)
the title of that series of preferred stock,
​
(2)
the number of shares in the series,
​
(3)
the dividend rate, or how such rate will be determined, and the dividend payment dates for the series,
​
(4)
whether the series will be listed on a securities exchange,
​
(5)
the date or dates on which the series of preferred stock may be redeemed at the option of NEE and any restrictions on such redemptions,
​
(6)
any sinking fund or other provisions that would obligate NEE to repurchase, redeem or retire the series of preferred stock,
​
(7)
the amount payable on the series of preferred stock in case of the liquidation, dissolution or winding up of NEE and any additional amount, or method of determining such amount, payable in case any such event is voluntary,
​
(8)
any rights to convert the shares of the series of preferred stock into shares of another series or into shares of any other class of capital stock,
​
(9)
the voting rights, if any, and
​
(10)
any other terms that are not inconsistent with the provisions of NEE’s Charter.
​
In some cases, the issuance of preferred stock could make it difficult for another company to acquire NEE and make it harder to remove current management. See also “Description of NEE Common Stock.”
 
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There are contractual restrictions on the dividend-paying ability of NEE and its subsidiaries contained in outstanding financing arrangements, and similar or other restrictions may be included in future financing arrangements. As of the date of this prospectus, NEE has equity units outstanding. In accordance with the terms of the equity units, NEE has the right, from time to time, to defer the payment of contract adjustment payments on the purchase contracts that form a part of the equity units to a date no later than the purchase contract settlement date. NEE Capital has outstanding junior subordinated debentures giving NEE Capital the right, from time to time, to defer the payment of interest on its outstanding junior subordinated debentures on one or more occasions for up to ten consecutive years. NEE, NEE Capital and FPL may issue, from time to time, additional equity units, junior subordinated debentures or other securities that (i) provide them with rights to defer the payment of interest or other payments and (ii) contain dividend restrictions in the event of the exercise of such rights. In the event that NEE or NEE Capital were to exercise any right to defer interest or other payments on currently outstanding or future series of equity units, junior subordinated debentures or such other securities, or if there were to occur certain payment defaults on those securities, NEE would not be able, with limited exceptions, to pay dividends on the preferred stock (and NEE Capital would not be able to pay dividends to NEE or any other holder of its common stock if it defers interest on its junior subordinated debentures) during the periods in which such payments were deferred or such payment defaults continued. In the event that FPL were to issue equity units, junior subordinated debentures or other securities having similar provisions and were to exercise any such right to defer the payment of interest or other payments on such securities, or if there were to occur certain payment defaults on those securities, FPL would not be able, with limited exceptions, to pay dividends to NEE or any other holder of its common stock or preferred stock during the periods in which such payments were deferred or such payment defaults continued. In addition, NEE, NEE Capital and FPL might issue other securities in the future containing similar or other restrictions on, or that affect, NEE’s ability to pay dividends on its common stock or preferred stock and on the ability of NEE’s subsidiaries, including NEE Capital and FPL to pay dividends to any holder of their respective common stock or preferred stock, including NEE.
DESCRIPTION OF NEE DEPOSITARY SHARES
NEE may issue depositary shares representing fractional interests in shares of NEE preferred stock of any series. In connection with the issuance of any depositary shares, NEE will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. Depositary shares will be evidenced by depositary receipts issued pursuant to the related deposit agreement. Following the issuance of the security related to the depositary shares, NEE will deposit the shares of its preferred stock with the relevant depositary and will cause the depositary to issue, on its behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest in the share of preferred stock represented by the related depositary share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock represented by the depositary receipt (including, if applicable, dividend, voting, conversion, exchange, redemption, sinking fund, subscription and liquidation rights).
The terms of any depositary shares being offered will be described in a prospectus supplement.
DESCRIPTION OF NEE STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
NEE may issue stock purchase contracts, including contracts that obligate holders to purchase from NEE, and NEE to sell to these holders, a specified number of shares of common stock or preferred stock or depositary shares at a future date or dates. The consideration per share of common stock or preferred stock or per depositary share 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 of NEE Capital, debt securities of NEE, or debt securities of third parties including, but not limited to, U.S. Treasury securities, that would secure the holders’ obligations to purchase common stock, preferred stock or depositary shares under the stock purchase contracts. The stock purchase contracts may require NEE to make periodic payments to the holders of some or all of the stock purchase units
 
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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.
The terms of any stock purchase contracts or stock purchase units being offered will be described in a prospectus supplement.
DESCRIPTION OF NEE WARRANTS
NEE may issue warrants to purchase common stock, preferred stock or depositary shares. The terms of any such warrants being offered and any related warrant agreement between NEE and a warrant agent will be described in a prospectus supplement.
DESCRIPTION OF NEE SENIOR DEBT SECURITIES
NEE may issue its senior debt securities, in one or more series, under one or more indentures between NEE and The Bank of New York Mellon, as trustee. The terms of any offered senior debt securities and the applicable indenture will be described in a prospectus supplement.
DESCRIPTION OF NEE SUBORDINATED DEBT SECURITIES
NEE may issue its subordinated debt securities (other than the NEE Junior Subordinated Debentures (as defined below under “Description of NEE Junior Subordinated Debentures”)), in one or more series, under one or more indentures between NEE and The Bank of New York Mellon, as trustee. The terms of any offered subordinated debt securities and the applicable indenture will be described in a prospectus supplement.
DESCRIPTION OF NEE JUNIOR SUBORDINATED DEBENTURES
NEE may issue its junior subordinated debentures (the “NEE Junior Subordinated Debentures”), in one or more series, under one or more indentures between NEE and The Bank of New York Mellon, as trustee. The terms of any offered junior subordinated debentures and the applicable indenture will be described in a prospectus supplement.
DESCRIPTION OF NEE CAPITAL PREFERRED STOCK
General.   The following statements describing NEE Capital’s preferred stock are not intended to be a complete description. For additional information, please see NEE Capital’s Articles of Incorporation, as currently in effect (“NEE Capital’s Charter”), and NEE Capital’s bylaws, as currently in effect. You should read this summary together with the articles of amendment to NEE Capital’s Charter, which will describe the terms of any preferred stock to be offered hereby, for a complete understanding of all the provisions. Each of these documents has previously been filed, or will be filed, with the SEC and each is or will be an exhibit to the registration statement filed with the SEC of which this prospectus is a part. Reference is also made to the Florida Act and other applicable laws.
NEE Capital Preferred Stock.   NEE Capital may issue one or more series of its preferred stock, $.01 par value, without the approval of its shareholders. The NEE Capital preferred stock will be guaranteed by NEE as described under “Description of NEE Guarantee of NEE Capital Preferred Stock.” No shares of preferred stock are presently outstanding.
Some terms of a series of preferred stock may differ from those of another series. The terms of any preferred stock being offered will be described in a prospectus supplement. These terms will also be described in articles of amendment to NEE Capital’s Charter, which will establish the terms of the preferred stock being offered. These terms will include any of the following that apply to that series:
(1)
the title of that series of preferred stock,
​
(2)
the number of shares in the series,
​
 
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(3)
the dividend rate, or how such rate will be determined, and the dividend payment dates for the series,
​
(4)
whether the series will be listed on a securities exchange,
​
(5)
the date or dates on which the series of preferred stock may be redeemed at the option of NEE Capital and any restrictions on such redemptions,
​
(6)
any sinking fund or other provisions that would obligate NEE Capital to repurchase, redeem or retire the series of preferred stock,
​
(7)
the amount payable on the series of preferred stock in case of the liquidation, dissolution or winding up of NEE Capital and any additional amount, or method of determining such amount, payable in case any such event is voluntary,
​
(8)
any rights to convert the shares of the series of preferred stock into shares of another series or into shares of any other class of capital stock,
​
(9)
the voting rights, if any, and
​
(10)
any other terms that are not inconsistent with the provisions of NEE Capital’s Charter.
​
There are contractual restrictions on the dividend-paying ability of NEE Capital contained in outstanding financing arrangements, and similar or other restrictions may be included in future financing arrangements. As of the date of this prospectus, NEE Capital has outstanding junior subordinated debentures giving NEE Capital the right, from time to time, to defer the payment of interest on its outstanding junior subordinated debentures on one or more occasions for up to ten consecutive years. NEE Capital may issue, from time to time, additional junior subordinated debentures or other securities that (i) provide it with rights to defer the payment of interest or other payments and (ii) contain dividend restrictions in the event of the exercise of such rights. In the event that NEE Capital were to exercise any right to defer interest or other payments on currently outstanding or future series of junior subordinated debentures or such other securities, or if there were to occur certain payment defaults on those securities, NEE Capital would not be able, with limited exceptions, to pay dividends on the preferred stock during the periods in which such payments were deferred or such payment defaults continued. In addition, NEE Capital might issue other securities in the future containing similar or other restrictions on NEE Capital’s ability to pay dividends to any holder of its preferred stock.
DESCRIPTION OF NEE GUARANTEE OF NEE CAPITAL PREFERRED STOCK
The following statements describing NEE’s guarantee of NEE Capital’s preferred stock are not intended to be a complete description. For additional information, please see NEE’s guarantee agreement relating to NEE Capital’s preferred stock. You should read this summary together with the guarantee agreement for a complete understanding of all the provisions. Please also see the FPL Mortgage, which contains restrictions which may in certain instances limit the ability of FPL to pay dividends to NEE. Each of these documents has previously been filed with the SEC and each is an exhibit to the registration statement filed with the SEC of which this prospectus is a part.
NEE will absolutely, irrevocably and unconditionally guarantee the payment of accumulated and unpaid dividends, and payments due on liquidation or redemption, as and when due, regardless of any defense, right of set-off or counterclaim that NEE Capital may have or assert. NEE’s guarantee of NEE Capital’s preferred stock will be an unsecured obligation of NEE and will rank (1) subordinate and junior in right of payment to all other liabilities of NEE (except those made pari passu or subordinate by their terms), (2) equal in right of payment with the most senior preferred or preference stock that may be issued by NEE and with any other guarantee that may be entered into by NEE in respect of any preferred or preference stock of any affiliate of NEE, and (3) senior to NEE’s common stock. The terms of NEE’s guarantee of NEE Capital’s preferred stock will be described in a prospectus supplement.
While NEE is a holding company that derives substantially all of its income from its operating subsidiaries, NEE’s subsidiaries are separate and distinct legal entities and have no obligation to make any
 
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payments under the NEE guarantee of NEE Capital preferred stock or to make any funds available for such payment. Therefore, the NEE guarantee of NEE Capital preferred stock will effectively be subordinated to all indebtedness and other liabilities, including trade payables, debt and preferred stock, incurred or issued by NEE’s subsidiaries. In addition to trade liabilities, many of NEE’s operating subsidiaries incur debt in order to finance their business activities. All of this indebtedness will effectively be senior to the NEE guarantee of NEE Capital preferred stock. NEE’s guarantee of NEE Capital preferred stock does not place any limit on the amount of liabilities, including debt or preferred stock, that NEE’s subsidiaries may issue, guarantee or incur. See “Description of NEE Common Stock — Common Stock Terms — Dividend Rights” for a description of contractual restrictions on the dividend-paying ability of some of NEE’s subsidiaries.
 
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DESCRIPTION OF NEE CAPITAL DEPOSITARY SHARES
NEE Capital may issue depositary shares representing fractional interests in shares of NEE Capital preferred stock of any series. In connection with the issuance of any depositary shares, NEE Capital will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. Depositary shares will be evidenced by depositary receipts issued pursuant to the related deposit agreement. Following the issuance of the security related to the depositary shares, NEE Capital will deposit the shares of its preferred stock with the relevant depositary and will cause the depositary to issue, on its behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest in the share of preferred stock represented by the related depositary share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock represented by the depositary receipt (including, if applicable, dividend, voting, exchange, redemption, sinking fund, subscription and liquidation rights).
The terms of any depositary shares being offered will be described in a prospectus supplement.
DESCRIPTION OF NEE GUARANTEE OF NEE CAPITAL DEPOSITARY SHARES
NEE may guarantee any NEE Capital depositary shares. The terms of any such guarantee and the guarantee agreement would be described in a prospectus supplement.
DESCRIPTION OF NEE CAPITAL SENIOR DEBT SECURITIES
General.   NEE Capital may issue its senior debt securities, in one or more series, under an Indenture, dated as of June 1, 1999, between NEE Capital and The Bank of New York Mellon, 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 Mellon, as trustee under the Indenture, is referred to in this prospectus as the “Indenture Trustee.” The senior debt securities of NEE Capital offered pursuant to this prospectus and any applicable prospectus supplement are referred to as the “Offered Senior Debt Securities.”
The Indenture provides for the issuance from time to time of debentures, notes or other senior debt by NEE Capital in an unlimited amount. The Offered Senior Debt Securities and all other debentures, notes or other debt of NEE Capital issued previously or hereafter under the Indenture are collectively referred to in this prospectus as the “Senior Debt Securities.”
This section briefly summarizes some of the terms of the Offered Senior Debt Securities and some of the provisions of the Indenture. This summary does not contain a complete description of the Offered Senior Debt Securities or the Indenture. You should read this summary together with the Indenture and the officer’s certificates or other documents creating the Offered Senior Debt Securities for a complete understanding of all the provisions and for the definitions of some terms used in this summary. The Indenture, the form of officer’s certificate that may be used to create a series of Offered Senior Debt Securities and a form of Offered Senior Debt Securities have previously been filed with the SEC, and are exhibits to the registration statement filed with the SEC of which this prospectus is a part. In addition, the Indenture is qualified under the Trust Indenture Act of 1939 and 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 its provisions.
All Offered Senior Debt Securities of one series need not be issued at the same time, and a series may be re-opened for issuances of additional Offered Senior Debt Securities of such series. This means that NEE Capital may from time to time, without notice to, or the consent of any existing holders of the previously-issued Offered Senior Debt Securities of a particular series, create and issue additional Offered Senior Debt Securities of such series. Such additional Offered Senior Debt Securities will have the same terms as the previously-issued Offered Senior Debt Securities of such series in all respects except for the issue date and, if applicable, the initial interest payment date. The additional Offered Senior Debt Securities will be consolidated and form a single series with the previously-issued Offered Senior Debt Securities of such series.
 
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Each series of Offered Senior Debt Securities may have different terms. NEE Capital will include some or all of the following information about a specific series of Offered Senior Debt Securities in a prospectus supplement relating to that specific series of Offered Senior Debt Securities:
(1)
the title of those Offered Senior Debt Securities,
​
(2)
any limit upon the aggregate principal amount of those Offered Senior Debt Securities,
​
(3)
the date(s) on which the principal of those Offered Senior Debt Securities will be paid,
​
(4)
the rate(s) of interest on those Offered Senior Debt Securities, or how the rate(s) of interest will be determined, the date(s) from which interest will accrue, the dates on which interest will be paid and the record date for any interest payable on any interest payment date,
​
(5)
the person to whom interest will be paid on those Offered Senior Debt Securities on any interest payment date, if other than the person in whose name those Offered Senior 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 payments will be made on those Offered Senior Debt Securities and the place(s) at which or methods by which the registered owners of those Offered Senior Debt Securities may transfer or exchange those Offered Senior Debt Securities and serve notices and demands to or upon NEE Capital,
​
(7)
the security registrar and any paying agent or agents for those Offered Senior Debt Securities,
​
(8)
any date(s) on which, the price(s) at which and the terms and conditions upon which those Offered Senior Debt Securities may be redeemed at the option of NEE Capital, in whole or in part, and any restrictions on those redemptions,
​
(9)
any sinking fund or other provisions, including any options held by the registered owners of those Offered Senior Debt Securities, that would obligate NEE Capital to repurchase or redeem those Offered Senior Debt Securities,
​
(10)
the denominations in which those Offered Senior Debt Securities may be issued, if other than denominations of $1,000 and any integral multiple of $1,000,
​
(11)
the currency or currencies in which the principal of or premium, if any, or interest on those Offered Senior Debt Securities may be paid (if other than in U.S. dollars),
​
(12)
if NEE Capital or a registered owner may elect to pay, or receive, principal of or premium, if any, or interest on those Offered Senior Debt Securities in a currency other than that in which those Offered Senior Debt Securities are stated to be payable, the terms and conditions upon which that election may be made,
​
(13)
if the principal of or premium, if any, or interest on those Offered Senior Debt Securities are payable in securities or other property, the type and amount of those securities or other property and the terms and conditions upon which NEE 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 Senior 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 Senior Debt Securities that will be paid upon declaration of acceleration of the maturity of those Offered Senior Debt Securities, if other than the entire principal amount of those Offered Senior Debt Securities,
​
(16)
events of default, if any, with respect to those Offered Senior Debt Securities and covenants of NEE Capital, if any, for the benefit of the registered owners of those Offered Senior Debt Securities, other than those specified in the Indenture,
​
 
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(17)
the terms, if any, pursuant to which those Offered Senior Debt Securities may be converted into or exchanged for shares of capital stock or other securities of any other entity,
​
(18)
a definition of “Eligible Obligations” under the Indenture with respect to those Offered Senior Debt Securities denominated in a currency other than U.S. dollars,
​
(19)
any provisions for the reinstatement of NEE Capital’s indebtedness in respect of those Offered Senior Debt Securities after their satisfaction and discharge,
​
(20)
if those Offered Senior Debt Securities will be issued in global form, necessary information relating to the issuance of those Offered Senior Debt Securities in global form,
​
(21)
if those Offered Senior Debt Securities will be issued as bearer securities, necessary information relating to the issuance of those Offered Senior Debt Securities as bearer securities,
​
(22)
any limits on the rights of the registered owners of those Offered Senior Debt Securities to transfer or exchange those Offered Senior Debt Securities or to register their transfer, and any related service charges,
​
(23)
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 Senior Debt Securities,
​
(24)
other than the Guarantee described under “Description of NEE Guarantee of NEE Capital Senior Debt Securities” below, any collateral security, assurance, or guarantee for those Offered Senior Debt Securities, and
​
(25)
any other terms of those Offered Senior Debt Securities that are not inconsistent with the provisions of the Indenture. (Indenture, Section 301).
​
NEE Capital may sell Offered Senior Debt Securities at a discount below their principal amount. Some of the important United States federal income tax considerations applicable to Offered Senior 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 Senior 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 Senior Debt Securities protection in the event of a highly-leveraged transaction involving NEE Capital or NEE.
Security and Ranking.   The Offered Senior Debt Securities will be unsecured obligations of NEE Capital. The Indenture does not limit NEE Capital’s ability to provide security with respect to other Senior Debt Securities. All Senior Debt Securities issued under the Indenture will rank equally and ratably with all other Senior Debt Securities issued under the Indenture, except to the extent that NEE Capital elects to provide security with respect to any Senior Debt Security (other than the Offered Senior Debt Securities) without providing that security to all outstanding Senior Debt Securities in accordance with the Indenture. The Offered Senior Debt Securities will rank senior to NEE Capital’s Subordinated Debt Securities and NEE Capital’s Junior Subordinated Debentures. The Indenture does not limit NEE Capital’s ability to issue other unsecured debt.
While NEE Capital is a holding company that derives substantially all of its income from its operating subsidiaries, NEE Capital’s subsidiaries are separate and distinct legal entities and have no obligation to make any payments on the Senior Debt Securities or to make any funds available for such payment. Therefore, the Senior Debt Securities will effectively be subordinated to all indebtedness and other liabilities, including trade payables, debt and preferred stock, incurred or issued by NEE Capital’s subsidiaries. In addition to trade liabilities, many of NEE Capital’s operating subsidiaries incur debt in order to finance their business activities. All of this indebtedness will effectively be senior to the Senior Debt Securities. The Indenture does not place any limit on the amount of liabilities, including debt or preferred stock, that NEE Capital’s subsidiaries may issue, guarantee or incur. See “Description of NEE Common Stock — Common Stock Terms — Dividend Rights” for a description of contractual restrictions on the dividend-paying ability of NEE Capital.
 
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Payment and Paying Agents.   Except as stated in the related prospectus supplement, on each interest payment date NEE Capital will pay interest on each Offered Senior Debt Security to the person in whose name that Offered Senior 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 Senior Debt Securities mature, NEE Capital will pay the interest to the person to whom it pays the principal. Also, if NEE Capital has defaulted in the payment of interest on any Offered Senior Debt Security, it may pay that defaulted interest to the registered owner of that Offered Senior 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 NEE 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 Senior Debt Security is listed and that the Indenture Trustee believes is practicable. (Indenture, Section 307).
​
Unless otherwise stated in the related prospectus supplement, the principal, premium, if any, and interest on the Offered Senior Debt Securities at maturity will be payable when such Offered Senior Debt Securities are presented at the main corporate trust office of The Bank of New York Mellon, as paying agent, in New York City. NEE Capital may change the place of payment on the Offered Senior Debt Securities, appoint one or more additional paying agents, including NEE Capital, and remove any paying agent. (Indenture, Section 602).
Transfer and Exchange.   Unless otherwise stated in the related prospectus supplement, Offered Senior Debt Securities may be transferred or exchanged at the main corporate trust office of The Bank of New York Mellon, as security registrar, in New York City. NEE Capital may change the place for transfer and exchange of the Offered Senior 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 Senior Debt Securities. However, NEE Capital may require payment of any tax or other governmental charge in connection with any transfer or exchange of the Offered Senior Debt Securities.
NEE Capital will not be required to transfer or exchange any Offered Senior Debt Security selected for redemption. Also, NEE Capital will not be required to transfer or exchange any Offered Senior Debt Security during a period of 15 days before notice is to be given identifying the Offered Senior Debt Securities selected to be redeemed. (Indenture, Section 305).
Defeasance.   NEE Capital may, at any time, elect to have all of its obligations discharged with respect to all or a portion of any Senior Debt Securities. To do so, NEE 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 Senior 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 Senior 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
 
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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 Senior 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 Senior Debt Securities, on or prior to their maturity. (Indenture, Section 701).
​
Limitation on Liens.   So long as any Senior Debt Securities remain outstanding, NEE 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 NEE Capital now or hereafter directly owns, unless NEE Capital equally secures all Senior Debt Securities. However, this restriction does not apply to or prevent:
(1)
any lien on capital stock created at the time NEE 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 NEE Capital acquires that capital stock (whether or not NEE 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
​
(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 judgment, 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 NEE Capital’s majority-owned subsidiaries, which shares of capital stock NEE 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 NEE Capital creates any Restricted Liens to secure indebtedness that, together with all other indebtedness of NEE Capital secured by Restricted Liens, does not at the time exceed 5% of NEE 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 NEE Capital or any Consolidated Subsidiary which is subject to mandatory redemption or sinking fund provisions.
​
 
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The term “Consolidated Shareholders’ Equity” as used above means the total assets of NEE Capital and its Consolidated Subsidiaries less all liabilities of NEE 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 NEE Capital or any of its Consolidated Subsidiaries whether or not NEE Capital or such Consolidated Subsidiary is liable for the payment thereof unless, in the case that NEE Capital or such Consolidated Subsidiary is not so liable, such property has not been included among the assets of NEE Capital or such Consolidated Subsidiary on such balance sheet,
​
(2)
deferred liabilities, and
​
(3)
indebtedness of NEE Capital or any of its Consolidated Subsidiaries that is expressly subordinated in right and priority of payment to other liabilities of NEE Capital or such Consolidated Subsidiary.
​
As used in this definition, “liabilities” includes preference or preferred stock of NEE 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 NEE 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 NEE Capital in NEE Capital’s 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)
NEE Capital to place liens on any of its assets other than the capital stock of directly held, majority-owned subsidiaries,
​
(2)
NEE Capital or NEE to cause the transfer of its assets or those of its subsidiaries, including the capital stock covered by the foregoing restrictions,
​
(3)
NEE to place liens on any of its assets, or
​
(4)
any of the direct or indirect subsidiaries of NEE Capital or NEE (other than NEE Capital) to place liens on any of their assets.
​
Redemption.   The redemption terms of the Offered Senior Debt Securities, if any, will be set forth in a prospectus supplement. Unless otherwise provided in the related prospectus supplement, and except with respect to Offered Senior Debt Securities redeemable at the option of the holder, Offered Senior Debt Securities will be redeemable upon notice between 30 and 60 days prior to the redemption date. If less than all of the Offered Senior Debt Securities of any series or any tranche thereof are to be redeemed, the Security Registrar will select the Offered Senior Debt Securities to be redeemed. In the absence of any provision for selection, the Security Registrar will choose such method of selection as it deems fair and appropriate. (Indenture, Sections 403 and 404).
Offered Senior Debt Securities selected for redemption will cease to bear interest on the redemption date. The paying agent will pay the redemption price and any accrued interest once the Offered Senior Debt Securities are surrendered for redemption. (Indenture, Section 405). Except as stated in the related prospectus supplement, on the redemption date NEE Capital will pay interest on the Offered Senior Debt Securities being redeemed to the person to whom it pays the redemption price. If only part of an Offered Senior Debt Security is redeemed, the Indenture Trustee will deliver a new Offered Senior Debt Security of the same series for the remaining portion without charge. (Indenture, Section 406).
Any redemption at the option of NEE Capital may be conditional upon the receipt by the paying agent, on or prior to the date fixed for redemption, of money sufficient to pay the redemption price. If at
 
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the time notice of redemption is given, the redemption moneys are not on deposit with the paying agent, then, if such notice so provides, the redemption shall be subject to the receipt of the redemption moneys on or before the Redemption Date and such notice of redemption shall be of no force or effect unless such moneys are received. (Indenture, Section 404).
Purchase of the Offered Senior Debt Securities.   NEE Capital or its affiliates, may at any time and from time to time, purchase all or some of the Offered Senior Debt Securities at any price or prices, whether by tender, in the open market or by private agreement or otherwise, subject to applicable law.
Consolidation, Merger, and Sale of Assets.   Under the Indenture, NEE 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 NEE Capital is merged, or the entity that acquires or leases NEE Capital’s properties 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 NEE Capital’s obligations on all Senior 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)
NEE 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 NEE Capital in a merger in which NEE Capital is the surviving entity.
Events of Default.   Each of the following is an event of default under the Indenture with respect to the Senior Debt Securities of any series:
(1)
failure to pay interest on the Senior Debt Securities of that series within 30 days after it is due,
​
(2)
failure to pay principal or premium, if any, on the Senior Debt Securities of that series when it is due,
​
(3)
failure to perform, or breach of, any other covenant or warranty in the Indenture, other than a covenant or warranty that does not relate to that series of Senior Debt Securities, that continues for 90 days after (i) NEE Capital receives written notice of such failure to comply from the Indenture Trustee or (ii) NEE Capital and the Indenture Trustee receive written notice of such failure to comply from the registered owners of at least 33% in principal amount of the Senior Debt Securities of that series,
​
(4)
certain events of bankruptcy, insolvency or reorganization of NEE Capital, or
​
(5)
any other event of default specified with respect to the Senior Debt Securities of that series. (Indenture, Section 801).
​
In the case of an event of default listed in item (3) above, the Indenture Trustee may extend the grace period. In addition, if registered owners of a particular series have given a notice of default, then registered owners of at least the same percentage of Senior Debt Securities of that series, together with the Indenture Trustee, may also extend the grace period. The grace period will be automatically extended if NEE Capital has initiated and is diligently pursuing corrective action. (Indenture, Section 801). An event of default with respect to the Senior Debt Securities of a particular series will not necessarily constitute an event of default with respect to Senior Debt Securities of any other series issued under the Indenture.
Remedies.   If an event of default applicable to the Senior Debt Securities of one or more series, but not applicable to all outstanding Senior Debt Securities, exists, then either (i) the Indenture Trustee or (ii) the registered owners of at least 33% in aggregate principal amount of the Senior Debt Securities of each of the affected series may declare the principal of and accrued but unpaid interest on all the Senior Debt Securities of that series to be due and payable immediately. (Indenture, Section 802). However, under the
 
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Indenture, some Senior Debt Securities may provide for a specified amount less than their entire principal amount to be due and payable upon that declaration. Such a Senior Debt Security is defined as a “Discount Security” in the Indenture.
If an event of default is applicable to all outstanding Senior Debt Securities, then either (i) the Indenture Trustee or (ii) the registered owners of at least 33% in aggregate principal amount of all outstanding Senior 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 Senior 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)
NEE Capital pays or deposits with the Indenture Trustee a sum sufficient to pay:
​
(a)
all overdue interest on all Senior Debt Securities of that series,
​
(b)
the principal of and any premium on any Senior 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 then due to the Indenture Trustee under the Indenture, and
​
(2)
any other event of default with respect to the Senior 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 of the Senior Debt Securities, 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 Senior 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 Senior Debt Securities of that series. However, if an event of default under the Indenture relates to more than one series of Senior Debt Securities, only the registered owners of a majority in aggregate principal amount of all affected series of Senior 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 the indemnity would not, in the Indenture Trustee’s sole discretion, be adequate, and the Indenture Trustee may take any other action that it deems proper and not inconsistent with such direction. (Indenture, Section 812).
A registered owner of a Senior Debt Security has the right to institute a suit for the enforcement of payment of the principal of or premium, if any, or interest on that Senior Debt Security on or after the applicable due date specified in that Senior Debt Security. (Indenture, Section 808). No registered owner of Senior Debt Securities of any series will have any other right to institute any proceeding under the Indenture, or any other 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 Senior Debt Securities of that series,
​
(2)
the registered owners of a majority in aggregate principal amount of the outstanding Senior 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 to institute that proceeding in its own name as trustee, and have offered reasonable indemnity to the Indenture Trustee against related costs, expenses and liabilities,
​
(3)
the Indenture Trustee for 60 days after its receipt of that notice, request and offer of indemnity has failed to institute any such proceeding, and
​
(4)
no direction inconsistent with that request was given to the Indenture Trustee during this 60 day
​
 
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period by the registered owners of a majority in aggregate principal amount of the outstanding Senior Debt Securities of all series in respect of which an event of default under the Indenture exists, considered as one class. (Indenture, Section 807).
NEE 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 Senior Debt Securities, NEE 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 NEE Capital of NEE Capital’s obligations under the Indenture and the Senior Debt Securities in the case of a merger or consolidation or a conveyance, transfer or lease of NEE Capital’s properties and assets substantially as an entirety,
​
(2)
to add covenants of NEE Capital or to surrender any right or power conferred upon NEE 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 Senior Debt Securities of any series or tranche, that change, elimination or addition will become effective with respect to that particular series or tranche only
​
(a)
when the required consent of the registered owners of Senior Debt Securities of that particular series or tranche has been obtained, or
​
(b)
when no Senior Debt Securities of that particular series or tranche remain outstanding under the Indenture,
​
(5)
to provide collateral security for all but not a part of the Senior Debt Securities,
​
(6)
to create the form or terms of Senior 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 Senior 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 all, or any series or tranche of, the Senior Debt Securities,
​
(10)
to change any place where
​
(a)
the principal of and premium, if any, and interest on all, or any series or tranche of, Senior Debt Securities are payable,
​
(b)
all, or any series or tranche of, Senior Debt Securities may be surrendered for registration, transfer, or exchange, and
​
(c)
notices and demands to or upon NEE Capital in respect of Senior Debt Securities and the Indenture may be served, or
​
(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 Senior Debt Securities of any series or tranche. (Indenture, Section 1201).
​
 
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The registered owners of a majority in aggregate principal amount of the Senior Debt Securities of all series then outstanding may waive compliance by NEE Capital with certain restrictive provisions of the Indenture. (Indenture, Section 607). The registered owners of a majority in principal amount of the outstanding Senior 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 Senior 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. NEE 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 Senior 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 Senior 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 Senior Debt Securities of all directly affected series, considered as one class, is required. But, if NEE Capital issues any series of Senior Debt Securities in more than one tranche and if the proposed supplemental indenture directly affects the rights of the registered owners of Senior 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 Senior 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 Senior Debt Security is due without the consent of the registered owner of that Senior Debt Security,
​
(2)
reduce any Senior 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 Senior Debt Security,
​
(3)
reduce any premium payable upon the redemption of a Senior Debt Security without the consent of the registered owner of that Senior Debt Security,
​
(4)
change the currency (or other property) in which a Senior Debt Security is payable without the consent of the registered owner of that Senior Debt Security,
​
(5)
impair the right to sue to enforce payments on any Senior 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 Senior Debt Security,
​
(6)
reduce the percentage in principal amount of the outstanding Senior Debt Securities 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 Senior Debt Security of that particular 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 Senior Debt Security of that particular series or tranche, or
​
(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 Senior Debt Securities of any series or tranche, without the consent of the registered owner of each outstanding Senior Debt Security affected by the modification.
​
 
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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 Senior Debt Securities, or that modifies the rights of the registered owners of Senior Debt Securities of that particular series or tranche with respect to that provision, will not affect the rights under the Indenture of the registered owners of the Senior 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 Senior 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 Senior Debt Securities, Senior Debt Securities owned by NEE Capital or any other obligor upon the Senior Debt Securities or any affiliate of NEE Capital or of that other obligor (unless NEE Capital, that affiliate or that obligor owns all Senior Debt Securities outstanding under the Indenture, determined without regard to this provision) will be disregarded and deemed not to be outstanding. (Indenture, Section 101).
If NEE Capital solicits any action under the Indenture from registered owners of Senior Debt Securities, NEE Capital may, at its option, fix in advance a record date for determining the registered owners of Senior Debt Securities entitled to take that action, but NEE Capital will not be obligated to do so. If NEE Capital fixes such a record date, 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 Senior Debt Securities for the purposes of determining whether registered owners of the required proportion of the outstanding Senior Debt Securities have authorized that action. For these purposes, the outstanding Senior Debt Securities will be computed as of the record date. Any action of a registered owner of any Senior Debt Security under the Indenture will bind every future registered owner of that Senior Debt Security, or any Senior Debt Security replacing that Senior Debt Security, with respect to anything that the Indenture Trustee or NEE Capital do, fail to do, or allow to be done in reliance on that action, whether or not that action is noted upon that Senior Debt Security. (Indenture, Section 104).
Resignation and Removal of Indenture Trustee.   The Indenture Trustee may resign at any time with respect to any series of Senior Debt Securities by giving written notice of its resignation to NEE Capital. Also, the registered owners of a majority in principal amount of the outstanding Senior Debt Securities of one or more series of Senior Debt Securities may remove the Indenture Trustee at any time with respect to the Senior Debt Securities of that series, by delivering an instrument evidencing this action to the Indenture Trustee and NEE 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 a trustee under the Indenture appointed by the registered owners of Senior 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)
NEE 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 Senior Debt Securities will be sent by mail to the addresses of those registered owners as they appear in the security register for those Senior Debt Securities. (Indenture, Section 106).
Title.   NEE Capital, the Indenture Trustee, and any agent of NEE Capital or the Indenture Trustee, may treat the person in whose name a Senior Debt Security is registered as the absolute owner of that Senior Debt Security, whether or not that Senior 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 Senior Debt Securities 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. (Indenture, Section 112).
 
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DESCRIPTION OF NEE GUARANTEE OF
NEE CAPITAL SENIOR DEBT SECURITIES
General.   This section briefly summarizes some of the provisions of the Guarantee Agreement, dated as of June 1, 1999, between NEE and The Bank of New York Mellon, as guarantee trustee, referred to in this prospectus as the “Guarantee Trustee.” The Guarantee Agreement, referred to in this prospectus as 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 Senior 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 all the provisions. The Guarantee Agreement has previously been filed with the SEC and is an exhibit to the registration statement filed with the SEC of which this prospectus is a part. In addition, the Guarantee Agreement is qualified as an indenture under the Trust Indenture Act of 1939 and 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 its provisions.
Under the Guarantee Agreement, NEE 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 Senior Debt Securities that are covered by the Guarantee Agreement to the registered owners of those Senior Debt Securities, according to the terms of those Senior Debt Securities and the Indenture. Pursuant to the Guarantee Agreement, all of the Senior Debt Securities are covered by the Guarantee Agreement except Senior Debt Securities that by their terms are expressly not entitled to the benefit of the Guarantee Agreement. All of the Offered Senior Debt Securities will be covered by the Guarantee Agreement. This guarantee is referred to in this prospectus as the “Guarantee.” NEE is only required to make these payments if NEE 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, NEE has waived its right to require the Guarantee Trustee, the Indenture Trustee or the registered owners of Senior Debt Securities covered by the Guarantee Agreement to exhaust their remedies against NEE Capital prior to bringing suit against NEE. (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 NEE 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).
Except as otherwise stated in the related prospectus supplement, the covenants in the Guarantee Agreement would not give registered owners of the Senior Debt Securities covered by the Guarantee Agreement protection in the event of a highly-leveraged transaction involving NEE.
Security and Ranking.   The Guarantee is an unsecured obligation of NEE and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of NEE. There is no limit on the amount of other indebtedness, including guarantees, that NEE may incur or issue.
While NEE is a holding company that derives substantially all of its income from its operating subsidiaries, NEE’s subsidiaries are separate and distinct legal entities and have no obligation to make any payments under the Guarantee Agreement or to make any funds available for such payment. Therefore, the Guarantee effectively is subordinated to all indebtedness and other liabilities, including trade payables, debt and preferred stock, incurred or issued by NEE’s subsidiaries. In addition to trade liabilities, many of NEE’s operating subsidiaries incur debt in order to finance their business activities. All of this indebtedness will effectively be senior to the Guarantee. Neither the Indenture nor the Guarantee Agreement places any limit on the amount of liabilities, including debt or preferred stock, that NEE’s subsidiaries may issue, guarantee or incur.
Events of Default.   An event of default under the Guarantee Agreement will occur upon the failure of NEE 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 Senior Debt Securities covered by the Guarantee Agreement have the right to:
 
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(1)
direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee under 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 Senior 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 registered owners of all outstanding Senior Debt Securities may waive any past event of default and its consequences. (Guarantee Agreement, Section 2.06).
The Guarantee Trustee, the Indenture Trustee and the registered owners of Senior 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 Senior 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 Senior Debt Securities covered by the Guarantee Agreement, that person or entity may join NEE in any lawsuit commenced by that person or entity against NEE Capital with respect to any obligations under the Guarantee Agreement. Also, that person or entity may recover against NEE in that lawsuit, or in any independent lawsuit against NEE, without first asserting, prosecuting or exhausting any remedy or claim against NEE Capital. (Guarantee Agreement, Section 5.06).
NEE 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.   NEE and the Guarantee Trustee may, without the consent of any registered owner of Senior 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 Senior Debt Securities covered by the Guarantee Agreement. However, the right of any registered owner of Senior Debt Securities covered by the Guarantee Agreement to receive payment under the Guarantee Agreement on the due date of the Senior 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).
Termination of the Guarantee Agreement.   The Guarantee Agreement will terminate and be of no further force and effect upon full payment of all Senior 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).
DESCRIPTION OF NEE CAPITAL SUBORDINATED DEBT SECURITIES
AND NEE SUBORDINATED GUARANTEE
NEE Capital may issue its subordinated debt securities (other than the NEE Capital Junior Subordinated Debentures (as defined above under “Description of NEE Capital Junior Subordinated Debentures and NEE Junior Subordinated Guarantee”)), in one or more series, under one or more indentures between NEE Capital and The Bank of New York Mellon, as trustee. The terms of any offered subordinated debt securities, including NEE’s guarantee of NEE Capital’s payment obligations under such subordinated debt securities, and the applicable indenture will be described in a prospectus supplement.
 
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DESCRIPTION OF NEE CAPITAL
JUNIOR SUBORDINATED DEBENTURES AND
NEE JUNIOR SUBORDINATED GUARANTEE
General.   NEE Capital may issue its junior subordinated debentures in one or more series, under an Indenture, dated as of September 1, 2006, among NEE Capital, NEE and The Bank of New York Mellon, as trustee, or another subordinated indenture among NEE Capital, NEE and The Bank of New York Mellon as specified in the related prospectus supplement. The indenture or indentures pursuant to which NEE Capital Junior Subordinated Debentures may be issued, as they may be amended and supplemented from time to time, are referred to in this prospectus as the “NEE Capital Junior Subordinated Indenture.” The Bank of New York Mellon, as trustee under the NEE Capital Junior Subordinated Indenture, is referred to in this prospectus as the “Junior Subordinated Indenture Trustee.” The junior subordinated debentures of NEE Capital offered pursuant to this prospectus and any applicable prospectus supplement are referred to as the “NEE Capital Junior Subordinated Debentures.”
The NEE Capital Junior Subordinated Indenture provides for the issuance from time to time of subordinated debt in an unlimited amount. The NEE Capital Junior Subordinated Debentures and all other subordinated debt issued previously or hereafter under the NEE Capital Junior Subordinated Indenture are collectively referred to in this prospectus as the “NEE Capital Junior Subordinated Indenture Securities.”
This section briefly summarizes some of the terms of the NEE Capital Junior Subordinated Debentures, NEE’s junior subordinated guarantee of the NEE Capital Junior Subordinated Debentures (the “Junior Subordinated Guarantee”), and some of the provisions of the NEE Capital Junior Subordinated Indenture. This summary does not contain a complete description of the NEE Capital Junior Subordinated Debentures, the Junior Subordinated Guarantee or the NEE Capital Junior Subordinated Indenture. You should read this summary together with the NEE Capital Junior Subordinated Indenture and the officer’s certificates or other documents creating the NEE Capital Junior Subordinated Debentures and the Junior Subordinated Guarantee for a complete understanding of all the provisions and for the definitions of some terms used in this summary. The NEE Capital Junior Subordinated Indenture which includes the Junior Subordinated Guarantee, the form of officer’s certificate that may be used to create a series of NEE Capital Junior Subordinated Debentures and a form of the NEE Capital Junior Subordinated Debentures have previously been filed with the SEC, and are exhibits to the registration statement filed with the SEC of which this prospectus is a part. In addition, each NEE Capital Junior Subordinated Indenture is or will be qualified under the Trust Indenture Act of 1939 and 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 its provisions.
All NEE Capital Junior Subordinated Debentures of one series need not be issued at the same time, and a series may be re-opened for issuances of additional NEE Capital Junior Subordinated Debentures of such series. This means that NEE Capital may from time to time, without notice to, or the consent of any existing holders of the previously-issued NEE Capital Junior Subordinated Debentures of a particular series, create and issue additional NEE Capital Junior Subordinated Debentures of such series. Such additional NEE Capital Junior Subordinated Debentures will have the same terms as the previously-issued NEE Capital Junior Subordinated Debentures of such series in all respects except for the issue date and, if applicable, the initial interest payment date. The additional NEE Capital Junior Subordinated Debentures will be consolidated and form a single series with the previously-issued NEE Capital Junior Subordinated Debentures of such series.
The NEE Capital Junior Subordinated Debentures will be unsecured, subordinated obligations of NEE Capital which rank junior to all of NEE Capital’s Senior Indebtedness. The term “Senior Indebtedness” with respect to NEE Capital will be defined in the related prospectus supplement. All NEE Capital Junior Subordinated Debentures issued under a particular NEE Capital Junior Subordinated Indenture will rank equally and ratably with all other NEE Capital Junior Subordinated Debentures issued under that NEE Capital Junior Subordinated Indenture, except to the extent that NEE Capital elects to provide security with respect to any series of NEE Capital Junior Subordinated Debentures without providing that security to all outstanding NEE Capital Junior Subordinated Debentures in accordance with the respective NEE Capital Junior Subordinated Indenture. NEE Capital Junior Subordinated Debentures issued under a particular NEE Capital Junior Subordinated Indenture may rank senior to, pari passu with, or junior to,
 
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NEE Capital Junior Subordinated Debentures issued by NEE Capital under another NEE Capital Junior Subordinated Indenture. The NEE Capital Junior Subordinated Debentures will be absolutely, unconditionally and irrevocably guaranteed by NEE as to payment of principal, and any interest and premium, pursuant to the Junior Subordinated Guarantee included in the NEE Capital Junior Subordinated Indenture for such NEE Capital Junior Subordinated Debentures, which Junior Subordinated Guarantee ranks junior to all of NEE’s Senior Indebtedness, and may rank senior to, pari passu with, or junior to, NEE’s obligations under a separate junior subordinated guarantee. See “— Junior Subordinated Guarantee of NEE Capital Junior Subordinated Debentures” below.
Each series of NEE Capital Junior Subordinated Debentures that may be issued under each NEE Capital Junior Subordinated Indenture may have different terms. NEE Capital will include some or all of the following information about a specific series of NEE Capital Junior Subordinated Debentures in a prospectus supplement relating to that specific series of NEE Capital Junior Subordinated Debentures:
(1)
the title of those NEE Capital Junior Subordinated Debentures,
​
(2)
any limit upon the aggregate principal amount of those NEE Capital Junior Subordinated Debentures,
​
(3)
the date(s) on which the principal of those NEE Capital Junior Subordinated Debentures will be paid,
​
(4)
the rate(s) of interest on those NEE Capital Junior Subordinated Debentures, or how the rate(s) of interest will be determined, the date(s) from which interest will accrue, the dates on which interest will be paid and the record date for any interest payable on any interest payment date,
​
(5)
the person to whom interest will be paid on those NEE Capital Junior Subordinated Debentures on any interest payment date, if other than the person in whose name those NEE Capital Junior Subordinated Debentures 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 payments will be made on those NEE Capital Junior Subordinated Debentures and the place(s) at which or methods by which the registered owners of those NEE Capital Junior Subordinated Debentures may transfer or exchange those NEE Capital Junior Subordinated Debentures and serve notices and demands to or upon NEE Capital,
​
(7)
the security registrar and any paying agent or agents for those NEE Capital Junior Subordinated Debentures,
​
(8)
any date(s) on which, the price(s) at which and the terms and conditions upon which those NEE Capital Junior Subordinated Debentures may be redeemed at the option of NEE Capital, in whole or in part, and any restrictions on those redemptions,
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(9)
any sinking fund or other provisions, including any options held by the registered owners of those NEE Capital Junior Subordinated Debentures, that would obligate NEE Capital to repurchase, redeem or repay those NEE Capital Junior Subordinated Debentures,
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(10)
the denominations in which those NEE Capital Junior Subordinated Debentures may be issued, if other than denominations of $25 and any integral multiple of $25,
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(11)
the currency or currencies in which the principal of or premium, if any, or interest on those NEE Capital Junior Subordinated Debentures may be paid (if other than in U.S. dollars),
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(12)
if NEE Capital or a registered owner may elect to pay, or receive, principal of or premium, if any, or interest on those NEE Capital Junior Subordinated Debentures in a currency other than that in which those NEE Capital Junior Subordinated Debentures are stated to be payable, the terms and conditions upon which that election may be made,
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(13)
if the principal of or premium, if any, or interest on those NEE Capital Junior Subordinated Debentures may be paid in securities or other property, the type and amount of those securities or
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other property and the terms and conditions upon which NEE 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 NEE Capital Junior Subordinated Debentures may be determined by reference to an index or other fact or event ascertainable outside of the NEE Capital Junior Subordinated Indenture, the manner in which those amounts will be determined,
​
(15)
the portion of the principal amount of those NEE Capital Junior Subordinated Debentures that will be paid upon declaration of acceleration of the maturity of those NEE Capital Junior Subordinated Debentures, if other than the entire principal amount of those NEE Capital Junior Subordinated Debentures,
​
(16)
events of default, if any, with respect to those NEE Capital Junior Subordinated Debentures and covenants of NEE Capital, if any, for the benefit of the registered owners of those NEE Capital Junior Subordinated Debentures, other than those specified in the NEE Capital Junior Subordinated Indenture, or any exceptions to those specified in the NEE Capital Junior Subordinated Indenture,
​
(17)
the terms, if any, pursuant to which those NEE Capital Junior Subordinated Debentures may be converted into or exchanged for shares of capital stock or other securities of any other entity,
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(18)
a definition of “Eligible Obligations” under the NEE Capital Junior Subordinated Indenture with respect to those NEE Capital Junior Subordinated Debentures denominated in a currency other than U.S. dollars,
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(19)
any provisions for the reinstatement of NEE Capital’s indebtedness in respect of those NEE Capital Junior Subordinated Debentures after their satisfaction and discharge,
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(20)
if those NEE Capital Junior Subordinated Debentures will be issued in global form, necessary information relating to the issuance of those NEE Capital Junior Subordinated Debentures in global form,
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(21)
if those NEE Capital Junior Subordinated Debentures will be issued as bearer securities, necessary information relating to the issuance of those NEE Capital Junior Subordinated Debentures as bearer securities,
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(22)
any limits on the rights of the registered owners of those NEE Capital Junior Subordinated Debentures to transfer or exchange those NEE Capital Junior Subordinated Debentures or to register their transfer, and any related service charges,
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(23)
any exceptions to the provisions governing payments due on legal holidays or any variations in the definition of business day with respect to those NEE Capital Junior Subordinated Debentures,
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(24)
any collateral security, assurance, or guarantee for those NEE Capital Junior Subordinated Debentures, including any security, assurance of guarantee in addition to, or any exceptions to, the Junior Subordinated Guarantee,
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(25)
any variation in the definition of pari passu securities, if applicable, and
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(26)
any other terms of those NEE Capital Junior Subordinated Debentures that are not inconsistent with the provisions of the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Section 301).
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NEE Capital may sell NEE Capital Junior Subordinated Debentures at a discount below their principal amount. Some of the important United States federal income tax considerations applicable to NEE Capital Junior Subordinated Debentures 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 NEE Capital Junior Subordinated Debentures that are denominated in a currency other than U.S. dollars may be discussed in the related prospectus supplement.
 
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Except as otherwise stated in the related prospectus supplement, the covenants in the NEE Capital Junior Subordinated Indenture would not give registered owners of NEE Capital Junior Subordinated Debentures protection in the event of a highly-leveraged transaction involving NEE Capital or NEE.
Subordination.   The NEE Capital Junior Subordinated Debentures will be subordinate and junior in right of payment to all Senior Indebtedness of NEE Capital. (NEE Capital Junior Subordinated Indenture, Article Fifteen). No payment of the principal (including redemption and sinking fund payments) of, or interest, or premium, if any, on the NEE Capital Junior Subordinated Debentures may be made by NEE Capital, until all holders of Senior Indebtedness of NEE Capital have been paid in full (or provision has been made for such payment), if any of the following occurs:
(1)
certain events of bankruptcy, insolvency or reorganization of NEE Capital,
​
(2)
any Senior Indebtedness of NEE Capital is not paid when due (after the expiration of any applicable grace period) and that default continues without waiver, or
​
(3)
any other default has occurred and continues without waiver (after the expiration of any applicable grace period) pursuant to which the holders of Senior Indebtedness of NEE Capital are permitted to accelerate the maturity of such Senior Indebtedness. (NEE Capital Junior Subordinated Indenture, Section 1502).
​
Upon any distribution of assets of NEE Capital to creditors in connection with any insolvency, bankruptcy or similar proceeding, all principal of, and premium, if any, and interest due or to become due on all Senior Indebtedness of NEE Capital must be paid in full before the holders of the NEE Capital Junior Subordinated Debentures are entitled to receive or retain any payment from such distribution. (NEE Capital Junior Subordinated Indenture, Section 1502).
While NEE Capital is a holding company that derives substantially all of its income from its operating subsidiaries, NEE Capital’s subsidiaries are separate and distinct legal entities and have no obligation to make any payments on the NEE Capital Junior Subordinated Indenture Securities or to make any funds available for such payment. Therefore, NEE Capital Junior Subordinated Indenture Securities will effectively be subordinated to all indebtedness and other liabilities, including trade payables, debt and preferred stock, incurred or issued by NEE Capital’s subsidiaries. In addition to trade liabilities, many of NEE Capital’s operating subsidiaries incur debt in order to finance their business activities. All of this indebtedness will effectively be senior to the NEE Capital Junior Subordinated Indenture Securities. The NEE Capital Junior Subordinated Indenture does not place any limit on the amount of liabilities, including debt or preferred stock, that NEE Capital’s subsidiaries may issue, guarantee or incur. See “Description of NEE Common Stock — Common Stock Terms — Dividend Rights” for a description of contractual restrictions on the dividend-paying ability of NEE Capital.
Junior Subordinated Guarantee of NEE Capital Junior Subordinated Debentures.   Pursuant to the Junior Subordinated Guarantee, NEE will absolutely, irrevocably and unconditionally guarantee the payment of principal of and any interest and premium, if any, on the NEE Capital Junior Subordinated Debentures, when due and payable, whether at the stated maturity date, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such NEE Capital Junior Subordinated Debentures and the NEE Capital Junior Subordinated Indenture. The Junior Subordinated Guarantee will remain in effect until the entire principal of and any premium, if any, and interest on the NEE Capital Junior Subordinated Debentures has been paid in full or otherwise discharged in accordance with the provisions of the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Article Fourteen).
The Junior Subordinated Guarantee will be subordinate and junior in right of payment to all Senior Indebtedness of NEE. (NEE Capital Junior Subordinated Indenture, Section 1402). The term “Senior Indebtedness” with respect to NEE will be defined in the related prospectus supplement. No payment of the principal (including redemption and sinking fund payments) of, or interest, or premium, if any, on, the NEE Capital Junior Subordinated Debentures may be made by NEE under the Junior Subordinated Guarantee until all holders of Senior Indebtedness of NEE have been paid in full (or provision has been made for such payment), if any of the following occurs:
 
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(1)
certain events of bankruptcy, insolvency or reorganization of NEE,
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(2)
any Senior Indebtedness of NEE is not paid when due (after the expiration of any applicable grace period) and that default continues without waiver, or
​
(3)
any other default has occurred and continues without waiver (after the expiration of any applicable grace period) pursuant to which the holders of Senior Indebtedness of NEE are permitted to accelerate the maturity of such Senior Indebtedness. (NEE Capital Junior Subordinated Indenture, Section 1403).
​
Upon any distribution of assets of NEE to creditors in connection with any insolvency, bankruptcy or similar proceeding, all principal of, and premium, if any, and interest due or to become due on all Senior Indebtedness of NEE must be paid in full before the holders of the NEE Capital Junior Subordinated Debentures are entitled to receive or retain any payment from such distribution. (NEE Capital Junior Subordinated Indenture, Section 1403).
While NEE is a holding company that derives substantially all of its income from its operating subsidiaries, NEE’s subsidiaries are separate and distinct legal entities and have no obligation to make any payments under the Junior Subordinated Guarantee or to make any funds available for such payment. Therefore, the Junior Subordinated Guarantee will effectively be subordinated to all indebtedness and other liabilities, including trade payables, debt and preferred stock, incurred or issued by NEE’s subsidiaries. In addition to trade liabilities, many of NEE’s operating subsidiaries incur debt in order to finance their business activities. All of this indebtedness will effectively be senior to the Junior Subordinated Guarantee. The NEE Capital Junior Subordinated Indenture does not place any limit on the amount of liabilities, including debt or preferred stock, that NEE’s subsidiaries may issue, guarantee or incur. See “Description of NEE Common Stock — Common Stock Terms — Dividend Rights” for a description of contractual restrictions on the dividend-paying ability of some of NEE’s subsidiaries.
Payment and Paying Agents.   Except as stated in the related prospectus supplement, on each interest payment date NEE Capital will pay interest on each NEE Capital Junior Subordinated Debenture to the person in whose name that NEE Capital Junior Subordinated Debenture is registered as of the close of business on the record date relating to that interest payment date. However, on the date that the NEE Capital Junior Subordinated Debentures mature, NEE Capital will pay the interest to the person to whom it pays the principal. Also, if NEE Capital has defaulted in the payment of interest on any NEE Capital Junior Subordinated Debenture, it may pay that defaulted interest to the registered owner of that NEE Capital Junior Subordinated Debenture:
(1)
as of the close of business on a date that the Junior Subordinated Indenture Trustee selects, which may not be more than 15 days or less than 10 days before the date that NEE Capital, or NEE, as the case may be, 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 NEE Capital Junior Subordinated Debenture is listed and that the Junior Subordinated Indenture Trustee believes is practicable. (NEE Capital Junior Subordinated Indenture, Section 307).
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Unless otherwise stated in the related prospectus supplement, the principal, premium, if any, and interest on the NEE Capital Junior Subordinated Debentures at maturity will be payable when such NEE Capital Junior Subordinated Debentures are presented at the main corporate trust office of The Bank of New York Mellon, as paying agent, in New York City. NEE Capital and NEE may change the place of payment on the NEE Capital Junior Subordinated Debentures, appoint one or more additional paying agents, including NEE Capital, and remove any paying agent. (NEE Capital Junior Subordinated Indenture, Section 602).
Transfer and Exchange.   Unless otherwise stated in the related prospectus supplement, NEE Capital Junior Subordinated Debentures may be transferred or exchanged at the main corporate trust office of The Bank of New York Mellon, as security registrar, in New York City. NEE Capital may change the place for transfer and exchange of the NEE Capital Junior Subordinated Debentures and may designate one or more additional places for that transfer and exchange.
 
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Except as otherwise stated in the related prospectus supplement, there will be no service charge for any transfer or exchange of the NEE Capital Junior Subordinated Debentures. However, NEE Capital may require payment of any tax or other governmental charge in connection with any transfer or exchange of the NEE Capital Junior Subordinated Debentures.
NEE Capital will not be required to transfer or exchange any NEE Capital Junior Subordinated Debenture selected for redemption. Also, NEE Capital will not be required to transfer or exchange any NEE Capital Junior Subordinated Debenture during a period of 15 days before notice is to be given identifying the NEE Capital Junior Subordinated Debentures selected to be redeemed. (NEE Capital Junior Subordinated Indenture, Section 305).
Defeasance.   NEE Capital and NEE may, at any time, elect to have all of their obligations discharged with respect to all or a portion of any NEE Capital Junior Subordinated Indenture Securities. To do so, NEE Capital or NEE must irrevocably deposit with the Junior Subordinated 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 NEE Capital Junior Subordinated Indenture Securities, on or prior to their maturity, or
​
(2)
in the case of a deposit made prior to the maturity of that series of NEE Capital Junior Subordinated Indenture 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,
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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 Junior Subordinated 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 NEE Capital Junior Subordinated Indenture 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 NEE Capital Junior Subordinated Indenture Securities, on or prior to their maturity. (NEE Capital Junior Subordinated Indenture, Section 701).
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Option to Defer Interest Payments.   If so specified in the related prospectus supplement, NEE Capital will have the option to defer the payment of interest from time to time on the NEE Capital Junior Subordinated Debentures for one or more periods. Interest would, however, continue to accrue on the NEE Capital Junior Subordinated Debentures. Unless otherwise provided in the related prospectus supplement, during any optional deferral period neither NEE nor NEE Capital may:
(1)
declare or pay any dividend or distribution on its capital stock,
​
(2)
redeem, purchase, acquire or make a liquidation payment with respect to any of its capital stock,
​
(3)
pay any principal, interest or premium on, or repay, repurchase or redeem any debt securities that are equal or junior in right of payment with the NEE Capital Junior Subordinated Debentures, or with the Junior Subordinated Guarantee, or
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(4)
make any payments with respect to any guarantee of debt securities if such guarantee is equal or junior in right of payment to the NEE Capital Junior Subordinated Debentures or the Junior Subordinated Guarantee,
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other than
(a)
purchases, redemptions or other acquisitions of its capital stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or agents or a stock purchase or dividend reinvestment plan, or the satisfaction of its obligations pursuant to any contract or security outstanding on the date that the payment of interest is deferred requiring it to purchase, redeem or acquire its capital stock,
​
(b)
any payment, repayment, redemption, purchase, acquisition or declaration of dividend listed as restricted payments in clauses (1) and (2) above as a result of a reclassification of its capital stock or the exchange or conversion of all or a portion of one class or series of its capital stock for another class or series of its capital stock,
​
(c)
the purchase of fractional interests in shares of its capital stock pursuant to the conversion or exchange provisions of its capital stock or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts,
​
(d)
dividends or distributions paid or made in its capital stock (or rights to acquire its capital stock), or repurchases, redemptions or acquisitions of capital stock in connection with the issuance or exchange of capital stock (or of securities convertible into or exchangeable for shares of its capital stock) and distributions in connection with the settlement of stock purchase contracts,
​
(e)
redemptions, exchanges or repurchases of, or with respect to, any rights outstanding under a shareholder rights plan or the declaration or payment thereunder of a dividend or distribution of or with respect to rights in the future,
​
(f)
payments under any preferred trust securities guarantee or guarantee of subordinated debentures executed and delivered by NEE concurrently with the issuance by a trust of any preferred trust securities, so long as the amount of payments made with respect to any preferred trust securities or subordinated debentures (as the case may be) is paid on all preferred trust securities or subordinated debentures (as the case may be) then outstanding on a pro rata basis in proportion to the full distributions to which each series of preferred trust securities or subordinated debentures (as the case may be) is then entitled if paid in full,
​
(g)
payments under any guarantee of junior subordinated debentures executed and delivered by NEE (including the Junior Subordinated Guarantee), so long as the amount of payments made on any junior subordinated debentures is paid on all junior subordinated debentures then outstanding on a pro rata basis in proportion to the full payment to which each series of junior subordinated debentures is then entitled if paid in full,
​
(h)
dividends or distributions by NEE Capital on its capital stock to the extent owned by NEE, or
​
(i)
redemptions, purchases, acquisitions or liquidation payments by NEE Capital with respect to its capital stock to the extent owned by NEE. (NEE Capital Junior Subordinated Indenture, Section 608).
​
NEE and NEE Capital have reserved the right to amend the NEE Capital Junior Subordinated Indenture, dated as of September 1, 2006, without the consent or action of the holders of any NEE Capital Junior Subordinated Indenture Securities issued after October 1, 2006, including the NEE Capital Junior Subordinated Debentures, to modify the exceptions to the restrictions described in clause (f) above to allow payments with respect to any preferred trust securities or debt securities, or any guarantee thereof (including the Junior Subordinated Guarantee), executed and delivered by NEE, NEE Capital or any of their subsidiaries, in each case that rank equal in right of payment to such junior subordinated debentures or the related guarantee, as the case may be, so long as the amount of payments made on account of such securities or guarantees is paid on all such securities or guarantees then outstanding on a pro rata basis in proportion to the full payment to which each series of such securities or guarantees is then entitled if paid in full.
 
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Unless otherwise provided in the related prospectus supplement, (i) before an optional deferral period ends, NEE Capital may further defer the payment of interest and (ii) after any optional deferral period and the payment of all amounts then due, NEE Capital may select a new optional deferral period. Unless otherwise provided in the related prospectus supplement, no optional deferral period may exceed the period of time specified in that prospectus supplement. No interest period may be deferred beyond the maturity of the NEE Capital Junior Subordinated Debentures.
Redemption.   The redemption terms of the NEE Capital Junior Subordinated Debentures, if any, will be set forth in a prospectus supplement. Unless otherwise provided in the related prospectus supplement, and except with respect to NEE Capital Junior Subordinated Debentures redeemable at the option of the holder, NEE Capital Junior Subordinated Debentures will be redeemable upon notice between 30 and 60 days prior to the redemption date. If less than all of the NEE Capital Junior Subordinated Debentures of any series or any tranche thereof are to be redeemed, the Junior Subordinated Indenture Trustee will select the NEE Capital Junior Subordinated Debentures to be redeemed. In the absence of any provision for selection, the Junior Subordinated Indenture Trustee will choose such method of selection as it deems fair and appropriate. (NEE Capital Junior Subordinated Indenture, Sections 403 and 404).
NEE Capital Junior Subordinated Debentures selected for redemption will cease to bear interest on the redemption date. The paying agent will pay the redemption price and any accrued interest once the NEE Capital Junior Subordinated Debentures are surrendered for redemption. (NEE Capital Junior Subordinated Indenture, Section 405). Except as stated in the related prospectus supplement, on the redemption date NEE Capital will pay interest on the NEE Capital Junior Subordinated Debentures being redeemed to the person to whom it pays the redemption price. If only part of a NEE Capital Junior Subordinated Debenture is redeemed, the Junior Subordinated Indenture Trustee will deliver a new NEE Capital Junior Subordinated Debenture of the same series for the remaining portion without charge. (NEE Capital Junior Subordinated Indenture, Section 406).
Any redemption at the option of NEE Capital may be conditional upon the receipt by the paying agent, on or prior to the date fixed for redemption, of money sufficient to pay the redemption price. If at the time notice of redemption is given, the redemption moneys are not on deposit with the paying agent, then, if such notice so provides, the redemption shall be subject to the receipt of the redemption moneys on or before the Redemption Date and such notice of redemption shall be of no force or effect unless such moneys are received. (Indenture, Section 404).
Purchase of the NEE Capital Junior Subordinated Debentures.   NEE or its affiliates, including NEE Capital, may at any time and from time to time, purchase all or some of the NEE Capital Junior Subordinated Debentures at any price or prices, whether by tender, in the open market or by private agreement or otherwise, subject to applicable law.
Consolidation, Merger, and Sale of Assets.   Under the NEE Capital Junior Subordinated Indenture, neither NEE Capital nor NEE may 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 NEE Capital or NEE, as the case may be, is merged, or the entity that acquires or leases the properties and assets of NEE Capital or NEE, as the case may be, 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 NEE Capital’s or NEE’s, as the case may be, obligations on all NEE Capital Junior Subordinated Indenture Securities and under the NEE Capital Junior Subordinated Indenture,
​
(2)
immediately after giving effect to the transaction, no event of default under the NEE Capital Junior Subordinated Indenture and no event that, after notice or lapse of time or both, would become an event of default under the NEE Capital Junior Subordinated Indenture exists, and
​
(3)
NEE Capital or NEE, as the case may be, delivers an officer’s certificate and an opinion of counsel to the Junior Subordinated Indenture Trustee, as provided in the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Section 1101).
​
 
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The NEE Capital Junior Subordinated Indenture does not prevent or restrict:
(a)
any consolidation or merger after the consummation of which NEE Capital or NEE, as the case may be, would be the surviving or resulting entity,
​
(b)
any consolidation of NEE Capital with NEE or any other entity all of the outstanding voting securities of which are owned, directly or indirectly, by NEE, or any merger of any such entity into any other of such entities, or any conveyance or other transfer, or lease, of properties or assets by any thereof to any other thereof,
​
(c)
any conveyance or other transfer, or lease, of any part of the properties or assets of NEE Capital or NEE which does not constitute the entirety, or substantially the entirety, thereof,
​
(d)
the approval by NEE Capital or NEE of or the consent by NEE Capital or NEE to any consolidation or merger to which any direct or indirect subsidiary or affiliate of NEE Capital or NEE, as the case requires, may be a party, or any conveyance, transfer or lease by any such subsidiary or affiliate of any or all of its properties or assets, or
​
(e)
any other transaction not contemplated by (1), (2) or (3) in the preceding paragraph. (NEE Capital Junior Subordinated Indenture, Section 1103).
​
Events of Default.   Each of the following is an event of default under the NEE Capital Junior Subordinated Indenture with respect to the NEE Capital Junior Subordinated Indenture Securities of any series:
(1)
failure to pay interest on the NEE Capital Junior Subordinated Indenture Securities of that series within 30 days after it is due (provided, however, that a failure to pay interest during a valid optional deferral period will not constitute an event of default),
​
(2)
failure to pay principal or premium, if any, on the NEE Capital Junior Subordinated Indenture Securities of that series when it is due,
​
(3)
failure to perform, or breach of, any other covenant or warranty in the NEE Capital Junior Subordinated Indenture, other than a covenant or warranty that does not relate to that series of NEE Capital Junior Subordinated Indenture Securities, that continues for 90 days after (i) NEE Capital and NEE receive written notice of such failure to comply from the Junior Subordinated Indenture Trustee or (ii) NEE Capital, NEE and the Junior Subordinated Indenture Trustee receive written notice of such failure to comply from the registered owners of at least 33% in principal amount of the NEE Capital Junior Subordinated Indenture Securities of that series,
​
(4)
certain events of bankruptcy, insolvency or reorganization of NEE Capital or NEE,
​
(5)
with certain exceptions, the Junior Subordinated Guarantee ceases to be effective, is found by a judicial proceeding to be unenforceable or invalid or is denied or disaffirmed by NEE, or
​
(6)
any other event of default specified with respect to the NEE Capital Junior Subordinated Indenture Securities of that series. (NEE Capital Junior Subordinated Indenture, Section 801).
​
In the case of an event of default listed in item (3) above, the Junior Subordinated Indenture Trustee may extend the grace period. In addition, if registered owners of a particular series have given a notice of default, then registered owners of at least the same percentage of NEE Capital Junior Subordinated Debentures of that series, together with the Junior Subordinated Indenture Trustee, may also extend the grace period. The grace period will be automatically extended if NEE Capital or NEE has initiated and is diligently pursuing corrective action in good faith. (NEE Capital Junior Subordinated Indenture, Section 801). An event of default with respect to the NEE Capital Junior Subordinated Indenture Securities of a particular series will not necessarily constitute an event of default with respect to NEE Capital Junior Subordinated Indenture Securities of any other series issued under the NEE Capital Junior Subordinated Indenture.
Remedies.   If an event of default applicable to the NEE Capital Junior Subordinated Indenture Securities of one or more series, but not applicable to all outstanding NEE Capital Junior Subordinated
 
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Indenture Securities, exists, then either (i) the Junior Subordinated Indenture Trustee or (ii) the registered owners of at least 33% in aggregate principal amount of the NEE Capital Junior Subordinated Indenture Securities of each of the affected series may declare the principal of and accrued but unpaid interest on all the NEE Capital Junior Subordinated Indenture Securities of that series to be due and payable immediately. (NEE Capital Junior Subordinated Indenture, Section 802). However, under the Indenture, some NEE Capital Junior Subordinated Indenture Securities may provide for a specified amount less than their entire principal amount to be due and payable upon that declaration. Such a NEE Capital Junior Subordinated Indenture Security is defined as a “Discount Security” in the Indenture.
A majority of the currently outstanding series of NEE Capital Junior Subordinated Indenture Securities contain an exception to the right to accelerate payment of the principal of and accrued but unpaid interest on NEE Capital Junior Subordinated Indenture Securities of those series for an event of default listed in item (3) under “Events of Default” above. With respect to such NEE Capital Junior Subordinated Indenture Securities, if an event of default listed in item (3) under “Events of Default” above exists, the registered owners of the NEE Capital Junior Subordinated Indenture Securities of such series will not be entitled to vote to make a declaration of acceleration (and these NEE Capital Junior Subordinated Indenture Securities will not be considered outstanding for the purpose of determining whether the required vote, described above, has been obtained), and the Junior Subordinated Indenture Trustee will not have a right to make such declaration with respect to these NEE Capital Junior Subordinated Indenture Securities. Unless otherwise provided in the related prospectus supplement, the terms of the NEE Capital Junior Subordinated Indenture Securities issued in the future will contain this exception.
If an event of default is applicable to all outstanding NEE Capital Junior Subordinated Indenture Securities, then either (i) the Junior Subordinated Indenture Trustee or (ii) the registered owners of at least 33% in aggregate principal amount of all outstanding NEE Capital Junior Subordinated Indenture 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 NEE Capital Junior Subordinated Indenture 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)
NEE Capital or NEE pays or deposits with the Junior Subordinated Indenture Trustee a sum sufficient to pay:
​
(a)
all overdue interest, if any, on all NEE Capital Junior Subordinated Indenture Securities of that series then outstanding,
​
(b)
the principal of and any premium on any NEE Capital Junior Subordinated Indenture 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 then due to the Junior Subordinated Indenture Trustee under the NEE Capital Junior Subordinated Indenture, and
​
(2)
if, after application of money paid or deposited as described in item (1) above, NEE Capital Junior Subordinated Indenture Securities of that series would remain outstanding, any other event of default with respect to the NEE Capital Junior Subordinated Indenture Securities of that series has been cured or waived as provided in the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Section 802).
​
Other than its obligations and duties in case of an event of default under the NEE Capital Junior Subordinated Indenture, the Junior Subordinated Indenture Trustee is not obligated to exercise any of its rights or powers under the NEE Capital Junior Subordinated Indenture at the request or direction of any of the registered owners of the NEE Capital Junior Subordinated Indenture Securities, unless those registered owners offer reasonable indemnity to the Junior Subordinated Indenture Trustee. (NEE Capital Junior Subordinated Indenture, Section 903). If they provide this reasonable indemnity, the registered owners of a majority in principal amount of any series of NEE Capital Junior Subordinated Indenture Securities will
 
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have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Junior Subordinated Indenture Trustee, or exercising any trust or power conferred on the Junior Subordinated Indenture Trustee, with respect to the NEE Capital Junior Subordinated Indenture Securities of that series. However, if an event of default under the NEE Capital Junior Subordinated Indenture relates to more than one series of NEE Capital Junior Subordinated Indenture Securities, only the registered owners of a majority in aggregate principal amount of all affected series of NEE Capital Junior Subordinated Indenture Securities, considered as one class, will have the right to make that direction. Also, the direction must not violate any law or the NEE Capital Junior Subordinated Indenture, and may not expose the Junior Subordinated Indenture Trustee to personal liability in circumstances where the indemnity would not, in the Junior Subordinated Indenture Trustee’s sole discretion, be adequate, and the Junior Subordinated Indenture Trustee may take any other action that it deems proper and not inconsistent with such direction. (NEE Capital Junior Subordinated Indenture, Section 812).
A registered owner of a NEE Capital Junior Subordinated Indenture Security has the right to institute a suit for the enforcement of payment of the principal of or premium, if any, or interest on that NEE Capital Junior Subordinated Indenture Security on or after the applicable due date specified in that NEE Capital Junior Subordinated Indenture Security. (NEE Capital Junior Subordinated Indenture, Section 808). No registered owner of NEE Capital Junior Subordinated Indenture Securities of any series will have any other right to institute any proceeding under the NEE Capital Junior Subordinated Indenture, or any other remedy under the NEE Capital Junior Subordinated Indenture, unless:
(1)
that registered owner has previously given to the Junior Subordinated Indenture Trustee written notice of a continuing event of default with respect to the NEE Capital Junior Subordinated Indenture Securities of that series,
​
(2)
the registered owners of a majority in aggregate principal amount of the outstanding NEE Capital Junior Subordinated Indenture Securities of all series in respect of which an event of default under the NEE Capital Junior Subordinated Indenture exists, considered as one class, have made written request to the Junior Subordinated Indenture Trustee to institute that proceeding in its own name as trustee, and have offered reasonable indemnity to the Junior Subordinated Indenture Trustee against related costs, expenses and liabilities,
​
(3)
the Junior Subordinated Indenture Trustee for 60 days after its receipt of that notice, request and offer of indemnity has failed to institute any such proceeding, and
​
(4)
no direction inconsistent with that request was given to the Junior Subordinated Indenture Trustee during this 60 day period by the registered owners of a majority in aggregate principal amount of the outstanding NEE Capital Junior Subordinated Indenture Securities of all series in respect of which an event of default under the NEE Capital Junior Subordinated Indenture exists, considered as one class. (NEE Capital Junior Subordinated Indenture, Section 807).
​
Each of NEE Capital and NEE is required to deliver to the Junior Subordinated Indenture Trustee an annual statement as to its compliance with all conditions and covenants applicable to it under the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Section 606).
Modification and Waiver.   Without the consent of any registered owner of NEE Capital Junior Subordinated Indenture Securities, NEE Capital, NEE and the Junior Subordinated Indenture Trustee may amend or supplement the NEE Capital Junior Subordinated Indenture for any of the following purposes:
(1)
to provide for the assumption by any permitted successor to NEE Capital or NEE of NEE Capital’s or NEE’s obligations under the NEE Capital Junior Subordinated Indenture and the NEE Capital Junior Subordinated Indenture Securities in the case of a merger or consolidation or a conveyance, transfer or lease of NEE Capital or NEE’s properties and assets substantially as an entirety,
​
(2)
to add covenants of NEE Capital or NEE or to surrender any right or power conferred upon NEE Capital or NEE by the NEE Capital Junior Subordinated Indenture,
​
(3)
to add any additional events of default,
​
 
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(4)
to change, eliminate or add any provision of the NEE Capital Junior Subordinated Indenture, provided that if that change, elimination or addition will materially adversely affect the interests of the registered owners of NEE Capital Junior Subordinated Indenture Securities of any series or tranche, that change, elimination or addition will become effective with respect to that particular series or tranche only
​
(a)
when the required consent of the registered owners of NEE Capital Junior Subordinated Indenture Securities of that particular series or tranche has been obtained, or
​
(b)
when no NEE Capital Junior Subordinated Indenture Securities of that particular series or tranche remain outstanding under the NEE Capital Junior Subordinated Indenture,
​
(5)
to provide collateral security for all but not a part of the NEE Capital Junior Subordinated Indenture Securities,
​
(6)
to create the form or terms of NEE Capital Junior Subordinated Indenture Securities of any other series or tranche or any Junior Subordinated Guarantees,
​
(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 Junior Subordinated Indenture Trustee or co-trustee with respect to the NEE Capital Junior Subordinated Indenture Securities of one or more series and to change any of the provisions of the NEE Capital Junior Subordinated Indenture as necessary to provide for the administration of the trusts under the NEE Capital Junior Subordinated Indenture by more than one trustee,
​
(9)
to add procedures to permit the use of a non-certificated system of registration for all, or any series or tranche of, the NEE Capital Junior Subordinated Indenture Securities,
​
(10)
to change any place where
​
(a)
the principal of and premium, if any, and interest on all, or any series or tranche of, NEE Capital Junior Subordinated Indenture Securities are payable,
​
(b)
all, or any series or tranche of, NEE Capital Junior Subordinated Indenture Securities may be surrendered for registration, transfer or exchange, and
​
(c)
notices and demands to or upon NEE Capital or NEE in respect of NEE Capital Junior Subordinated Indenture Securities and the NEE Capital Junior Subordinated Indenture may be served, or
​
(11)
to cure any ambiguity or inconsistency or to add or change any other provisions with respect to matters and questions arising under the NEE Capital Junior Subordinated Indenture, provided those changes or additions may not materially adversely affect the interests of the registered owners of NEE Capital Junior Subordinated Indenture Securities of any series or tranche. (NEE Capital Junior Subordinated Indenture, Section 1201).
​
The registered owners of a majority in aggregate principal amount of the NEE Capital Junior Subordinated Indenture Securities of all series then outstanding may waive compliance by NEE Capital or NEE with certain restrictive provisions of the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Section 607). The registered owners of a majority in principal amount of the outstanding NEE Capital Junior Subordinated Indenture Securities of any series may waive any past default under the NEE Capital Junior Subordinated 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 NEE Capital Junior Subordinated Indenture that cannot be modified or amended without the consent of the registered owner of each outstanding NEE Capital Junior Subordinated Indenture Security of that series affected. (NEE Capital Junior Subordinated Indenture, Section 813).
In addition to any amendments described above, if the Trust Indenture Act of 1939 is amended after the date of the NEE Capital Junior Subordinated Indenture in a way that requires changes to the NEE Capital
 
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Junior Subordinated 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 NEE Capital Junior Subordinated 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. NEE Capital, NEE and the Junior Subordinated Indenture Trustee may, without the consent of any registered owners, enter into supplemental indentures to make that amendment. (NEE Capital Junior Subordinated Indenture, Section 1201).
Except for any amendments described above, the consent of the registered owners of a majority in aggregate principal amount of the NEE Capital Junior Subordinated Indenture Securities of all series then outstanding, considered as one class, is required for all other modifications to the NEE Capital Junior Subordinated Indenture. However, if less than all of the series of NEE Capital Junior Subordinated Indenture 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 NEE Capital Junior Subordinated Indenture Securities of all directly affected series, considered as one class, is required. But, if NEE Capital issues any series of NEE Capital Junior Subordinated Indenture Securities in more than one tranche and if the proposed supplemental indenture directly affects the rights of the registered owners of NEE Capital Junior Subordinated Indenture 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 NEE Capital Junior Subordinated Indenture 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 (except as described above under “— Option to Defer Interest Payments”) on a NEE Capital Junior Subordinated Indenture Security is due without the consent of the registered owner of that NEE Capital Junior Subordinated Indenture Security,
​
(2)
reduce any NEE Capital Junior Subordinated Indenture 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 NEE Capital Junior Subordinated Indenture Security,
​
(3)
reduce any premium payable upon the redemption of a NEE Capital Junior Subordinated Indenture Security without the consent of the registered owner of that NEE Capital Junior Subordinated Indenture Security,
​
(4)
change the currency (or other property) in which a NEE Capital Junior Subordinated Indenture Security is payable without the consent of the registered owner of that NEE Capital Junior Subordinated Indenture Security,
​
(5)
impair the right to sue to enforce payments on any NEE Capital Junior Subordinated Indenture 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 NEE Capital Junior Subordinated Indenture Security,
​
(6)
impair the right to receive payments under the Junior Subordinated Guarantee or to institute suit for enforcement of any such payment under the Junior Subordinated Guarantee,
​
(7)
reduce the percentage in principal amount of the outstanding NEE Capital Junior Subordinated Indenture Securities 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 NEE Capital Junior Subordinated Indenture Security of that particular series or tranche,
​
(8)
reduce the requirements for quorum or voting of any series or tranche without the consent of the registered owner of each outstanding NEE Capital Junior Subordinated Indenture Security of that particular series or tranche, or
​
 
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(9)
modify certain of the provisions of the NEE Capital Junior Subordinated Indenture relating to supplemental indentures, waivers of certain covenants and waivers of past defaults with respect to the NEE Capital Junior Subordinated Indenture Securities of any series or tranche, without the consent of the registered owner of each outstanding NEE Capital Junior Subordinated Indenture Security affected by the modification.
​
A supplemental indenture that changes or eliminates any provision of the NEE Capital Junior Subordinated Indenture that has expressly been included only for the benefit of one or more particular series or tranches of NEE Capital Junior Subordinated Indenture Securities, or that modifies the rights of the registered owners of NEE Capital Junior Subordinated Indenture Securities of that particular series or tranche with respect to that provision, will not affect the rights under the NEE Capital Junior Subordinated Indenture of the registered owners of the NEE Capital Junior Subordinated Indenture Securities of any other series or tranche. (NEE Capital Junior Subordinated Indenture, Section 1202).
The NEE Capital Junior Subordinated Indenture provides that, in order to determine whether the registered owners of the required principal amount of the outstanding NEE Capital Junior Subordinated Indenture Securities have given any request, demand, authorization, direction, notice, consent or waiver under the NEE Capital Junior Subordinated Indenture, or whether a quorum is present at the meeting of the registered owners of NEE Capital Junior Subordinated Indenture Securities, NEE Capital Junior Subordinated Indenture Securities owned by NEE Capital, NEE or any other obligor upon the NEE Capital Junior Subordinated Indenture Securities or any affiliate of NEE Capital, NEE or of that other obligor (unless NEE Capital, NEE, that affiliate or that obligor owns all NEE Capital Junior Subordinated Indenture Securities outstanding under the NEE Capital Junior Subordinated Indenture, determined without regard to this provision), will be disregarded and deemed not to be outstanding. (NEE Capital Junior Subordinated Indenture, Section 101).
If NEE Capital or NEE solicits any action under the NEE Capital Junior Subordinated Indenture from registered owners of NEE Capital Junior Subordinated Indenture Securities, each of NEE Capital or NEE may, at its option, fix in advance a record date for determining the registered owners of NEE Capital Junior Subordinated Indenture Securities entitled to take that action, but neither NEE Capital nor NEE will be obligated to do so. If NEE Capital or NEE fixes such a record date, 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 NEE Capital Junior Subordinated Indenture Securities for the purposes of determining whether registered owners of the required proportion of the outstanding NEE Capital Junior Subordinated Indenture Securities have authorized that action. For these purposes, the outstanding NEE Capital Junior Subordinated Indenture Securities will be computed as of the record date. Any action of a registered owner of any NEE Capital Junior Subordinated Indenture Security under the NEE Capital Junior Subordinated Indenture will bind every future registered owner of that NEE Capital Junior Subordinated Indenture Security, or any NEE Capital Junior Subordinated Indenture Security replacing that NEE Capital Junior Subordinated Indenture Security, with respect to anything that the Junior Subordinated Indenture Trustee, NEE Capital or NEE do, fail to do, or allow to be done in reliance on that action, whether or not that action is noted upon that NEE Capital Junior Subordinated Indenture Security. (NEE Capital Junior Subordinated Indenture, Section 104).
Resignation and Removal of Junior Subordinated Indenture Trustee.   The Junior Subordinated Indenture Trustee may resign at any time with respect to any series of NEE Capital Junior Subordinated Indenture Securities by giving written notice of its resignation to NEE Capital and NEE. Also, the registered owners of a majority in principal amount of the outstanding NEE Capital Junior Subordinated Indenture Securities of one or more series of NEE Capital Junior Subordinated Indenture Securities may remove the Junior Subordinated Indenture Trustee at any time with respect to the NEE Capital Junior Subordinated Indenture Securities of that series, by delivering an instrument evidencing this action to the Junior Subordinated Indenture Trustee, NEE Capital and NEE. The resignation or removal of the Junior Subordinated Indenture Trustee and the appointment of a successor trustee will not become effective until a successor trustee accepts its appointment.
Except with respect to a trustee under the NEE Capital Junior Subordinated Indenture appointed by the registered owners of NEE Capital Junior Subordinated Indenture Securities, the Junior Subordinated
 
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Indenture Trustee will be deemed to have resigned and the successor will be deemed to have been appointed as trustee in accordance with the NEE Capital Junior Subordinated Indenture if:
(1)
no event of default under the NEE Capital Junior Subordinated Indenture or event that, after notice or lapse of time, or both, would become an event of default under the NEE Capital Junior Subordinated Indenture exists, and
​
(2)
NEE Capital and NEE have delivered to the Junior Subordinated Indenture Trustee resolutions of their Boards of Directors appointing a successor trustee and that successor trustee has accepted that appointment in accordance with the terms of the NEE Capital Junior Subordinated Indenture. (NEE Capital Junior Subordinated Indenture, Section 910).
​
Notices.   Notices to registered owners of NEE Capital Junior Subordinated Indenture Securities will be sent by mail to the addresses of those registered owners as they appear in the security register for those NEE Capital Junior Subordinated Indenture Securities. (NEE Capital Junior Subordinated Indenture, Section 106).
Title.   NEE Capital, NEE, the Junior Subordinated Indenture Trustee, and any agent of NEE Capital, NEE or the Junior Subordinated Indenture Trustee, may treat the person in whose name a NEE Capital Junior Subordinated Indenture Security is registered as the absolute owner of that NEE Capital Junior Subordinated Indenture Security, whether or not that NEE Capital Junior Subordinated Indenture Security is overdue, for the purpose of making payments and for all other purposes, regardless of any notice to the contrary. (NEE Capital Junior Subordinated Indenture, Section 308).
Governing Law.   The NEE Capital Junior Subordinated Indenture and the NEE Capital Junior Subordinated Indenture Securities 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. (NEE Capital Junior Subordinated Indenture, Section 112).
INFORMATION CONCERNING THE TRUSTEES
NEE and its subsidiaries, including NEE Capital, and various of their affiliates maintain various banking and trust relationships with The Bank of New York Mellon and its affiliates. The Bank of New York Mellon acts, or would act, as (i) Indenture Trustee, security registrar and paying agent under the Indenture described under “Description of NEE Capital Senior Debt Securities” above, (ii) Guarantee Trustee under the Guarantee Agreement described under “Description of NEE Guarantee of NEE Capital Senior Debt Securities” above, (iii) purchase contract agent under purchase contract agreements with respect to stock purchase units and (iv) Junior Subordinated Indenture Trustee, security registrar and paying agent under the NEE Capital Junior Subordinated Indenture described under “Description of NEE Capital Junior Subordinated Debentures and NEE Junior Subordinated Guarantee” above. In addition, The Bank of New York Mellon acts, or would act, as trustee under indentures for debt securities of NEE and FPL.
PLAN OF DISTRIBUTION
NEE and NEE 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.
​
This prospectus may be used in connection with any offering of securities through any of these methods or other methods described in the applicable prospectus supplement.
Through Underwriters or Dealers.   If NEE and/or NEE 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
 
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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 NEE and/or NEE Capital uses a dealer in the sale, NEE and/or NEE 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.   NEE and/or NEE 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.   NEE and/or NEE 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 NEE and/or NEE Capital from the sale of the Offered Securities, any initial public offering price and other terms of the offering of those Offered Securities.
NEE and/or NEE Capital may authorize underwriters, dealers or agents to solicit offers by certain institutions to purchase the Offered Securities from NEE and/or NEE 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.
The Offered Securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms, which are referred to herein as the “remarketing firms,” acting as principals for their own accounts or as agent for NEE and/or NEE Capital, as applicable. Any remarketing firm will be identified and the terms of its agreement, if any, with NEE and/or NEE Capital, and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term is defined in the Securities Act of 1933, in connection with the securities remarketed thereby.
NEE and/or NEE Capital may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by NEE and/or NEE Capital or borrowed from any of them or others to settle those sales or to close out any related open borrowings of securities, and may use securities received from NEE and/or NEE Capital in settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement.
NEE and/or NEE Capital may have agreements to indemnify underwriters, dealers and agents against, or to contribute to payments which the underwriters, dealers and agents may be required to make in respect of, certain civil liabilities, including liabilities under the Securities Act of 1933.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from NextEra Energy, Inc.’s Annual Report on Form 10-K, and the effectiveness of NextEra Energy, Inc. and subsidiaries’ internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
 
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LEGAL OPINIONS
Morgan, Lewis & Bockius LLP, New York, New York and Squire Patton Boggs (US) LLP, Miami, Florida, co-counsel to NEE and NEE Capital, will pass upon the legality of the Offered Securities for NEE and NEE Capital. Hunton Andrews Kurth LLP, New York, New York, will pass upon the legality of the Offered Securities for any underwriters, dealers or agents. Morgan, Lewis & Bockius LLP and Hunton Andrews Kurth LLP may rely as to all matters of Florida law upon the opinion of Squire Patton Boggs (US) LLP. Squire Patton Boggs (US) LLP may rely as to all matters of New York law upon the opinion of Morgan, Lewis & Bockius LLP.
​
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement or in any written communication from NEE or NEE Capital specifying the final terms of a particular offering of securities. Neither NEE nor NEE Capital has authorized anyone else to provide you with additional or different information. Neither NEE nor NEE Capital is making an offer of these 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 or that the information incorporated by reference is accurate as of any date other than the date of the document incorporated by reference.
 
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PROSPECTUS
Florida Power & Light Company
Preferred Stock,
Warrants,
First Mortgage Bonds,
Senior Debt Securities
and
Subordinated Debt Securities
​
Florida Power & Light Company may offer any combination of the securities described in this prospectus in one or more offerings from time to time in amounts authorized from time to time. This prospectus may also be used by a selling securityholder of the securities described herein.
Florida Power & Light Company 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.
Florida Power & Light Company 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 beginning on page 22 of this prospectus also provides more information on this topic.
See “Risk Factors” beginning on page 1 of this prospectus to read about certain factors you should consider before purchasing any of the securities being offered.
Florida Power & Light Company’s principal executive offices are located at 700 Universe Boulevard, Juno Beach, Florida 33408-0420, 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.
March 23, 2021
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Florida Power & Light Company (“FPL”) and certain of its affiliates have filed with the Securities and Exchange Commission (“SEC”) using a “shelf” registration process.
Under this shelf registration process, FPL may issue and sell any combination of the securities described in this prospectus in one or more offerings from time to time in amounts authorized by the board of directors of FPL. FPL may offer any of the following securities: preferred stock, warrants to purchase preferred stock, first mortgage bonds, senior debt securities and subordinated debt securities.
This prospectus provides you with a general description of the securities that FPL may offer. Each time FPL sells securities, FPL will provide a prospectus supplement that will contain specific information about the terms of that offering. Material United States federal income tax considerations applicable to the offered securities will be discussed in the applicable prospectus supplement if necessary. The applicable prospectus supplement may also add, update or change information contained in this prospectus. You should carefully read both this prospectus and any applicable prospectus supplement together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation by Reference.”
For more detailed information about the securities, please read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or incorporated by reference from earlier SEC filings listed in the registration statement.
RISK FACTORS
Before purchasing the securities, investors should carefully consider the risk factors described in FPL’s annual, quarterly and current reports filed with the SEC under the Securities Exchange Act of 1934, which are incorporated by reference into this prospectus, together with the other information incorporated by reference or provided in this prospectus or in a related prospectus supplement in order to evaluate an investment in the securities.
FLORIDA POWER & LIGHT COMPANY
FPL is a rate-regulated electric utility engaged primarily in the generation, transmission, distribution and sale of electric energy in Florida. FPL is the largest electric utility in the state of Florida and one of the largest electric utilities in the U.S. At December 31, 2020, FPL had approximately 28,400 megawatts of net generating capacity, approximately 76,200 circuit miles of transmission and distribution lines and 673 substations. FPL provides service to its electric customers through integrated transmission and distribution systems that link its generation facilities to its customers.
On January 1, 2021, FPL and Gulf Power Company (“Gulf Power”) merged, with FPL as the surviving entity (the “Merger”). However, FPL will continue to be regulated as two separate ratemaking entities in the former service areas of FPL and Gulf Power until the FPSC approves consolidation of the FPL and Gulf Power rates and tariffs. Following the merger, FPL now serves more than 11 million people through more than 5.6 million customer accounts. FPL’s service area covers most of the east and lower west coasts of Florida and eight counties throughout northwest Florida. FPL, which was incorporated under the laws of Florida in 1925, is a wholly-owned subsidiary of NEE.
FPL’s principal executive offices are located at 700 Universe Boulevard, Juno Beach, Florida 33408, telephone number (561) 694-4000, and its mailing address is P.O. Box 14000, Juno Beach, Florida 33408-0420.
USE OF PROCEEDS
Unless otherwise stated in a prospectus supplement, FPL will add the net proceeds from the sale of its securities to its general funds. FPL uses its general funds for corporate purposes, including to repay short-term borrowings, to repay, redeem or repurchase outstanding debt and to finance the acquisition or construction of additional electric facilities and capital improvements to and maintenance of existing facilities. FPL may temporarily invest any proceeds that it does not need to use immediately in short-term instruments.
 
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WHERE YOU CAN FIND MORE INFORMATION
FPL files annual, quarterly and other reports and other information with the SEC. You can read and copy any information filed by FPL with the SEC. The SEC maintains an internet website (www.sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including FPL. FPL also maintains an internet website (www.fpl.com). Information on FPL’s internet website is not a part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows FPL to “incorporate by reference” information that FPL files with the SEC, which means that FPL 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. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement in any subsequently filed document which also is or is deemed to be incorporated in this prospectus modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. FPL is incorporating by reference the documents listed below and any future filings FPL makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus (other than any documents, or portions of documents, not deemed to be filed) until FPL sells all of the securities covered by the registration statement:
(1)
FPL’s Annual Report on Form 10-K for the year ended December 31, 2020, and
​
(2)
FPL’s Current Reports on Form 8-K filed with the SEC on January 11, 2021 (excluding those portions furnished and not filed), March 1, 2021 and March 12, 2021.
​
You may request a copy of these documents, at no cost to you, by writing or calling Thomas P. Giblin, Jr., Esq., Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, (212) 309-6000. FPL will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus.
FORWARD-LOOKING STATEMENTS
In connection with the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, FPL is herein filing cautionary statements identifying important factors that could cause FPL’s actual results to differ materially from those projected in forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, made by or on behalf of FPL in this prospectus or any prospectus supplement, in presentations, in response to questions or otherwise. Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions, strategies, future events or performance (often, but not always, through the use of words or phrases such as “may result,” “are expected to,” “will continue,” “is anticipated,” “believe,” “will,” “could,” “should,” “would,” “estimated,” “may,” “plan,” “potential,” “future,” “projection,” “goals,” “target,” “outlook,” “predict,” and “intend” or words of similar meaning) are not statements of historical facts and may be forward-looking. Forward-looking statements involve estimates, assumptions and uncertainties. Accordingly, any such statements are qualified in their entirety by reference to, and are accompanied by, important factors discussed in FPL’s reports that are incorporated herein by reference (in addition to any assumptions and other factors referred to specifically in connection with such forward-looking statements) that could have a significant impact on FPL’s operations and financial results, and could cause FPL’s actual results to differ materially from those contained or implied in forward-looking statements made by or on behalf of FPL.
Any forward-looking statement speaks only as of the date on which such statement is made, and FPL undertakes no obligation to update any forward-looking statement to reflect events or circumstances, including, but not limited to, unanticipated events, after the date on which such statement is made, unless otherwise required by law. New factors emerge from time to time and it is not possible for management to predict all of such factors, nor can it assess the impact of each such factor on the business or the extent to
 
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which any factor, or combination of factors, may cause actual results to differ materially from those contained or implied in any forward-looking statement.
The issues and associated risks and uncertainties discussed in the reports that are incorporated herein by reference are not the only ones FPL may face. Additional issues may arise or become material as the energy industry evolves. The risks and uncertainties associated with those additional issues could impair FPL’s business in the future.
DESCRIPTION OF PREFERRED STOCK
General.   The following statements describing FPL’s preferred stock are not intended to be a complete description. For additional information, please see FPL’s Restated Articles of Incorporation, as currently in effect (“Charter”), and its Amended and Restated Bylaws, as currently in effect. You should read this summary together with the articles of amendment to the Charter, which will describe the terms of any preferred stock to be offered hereby, for a complete understanding of all the provisions. Each of these documents has previously been filed, or will be filed, with the SEC and each is or will be an exhibit to the registration statement filed with the SEC of which this prospectus is a part. Reference is also made to the Florida Business Corporation Act and other applicable laws.
The Charter currently authorizes three classes of preferred stock. No shares of preferred stock are presently outstanding. Unless the Charter is amended prior to the offering of the preferred stock offered hereunder to change the class or classes of preferred stock authorized to be issued, the preferred stock offered hereunder will be one or more series of FPL’s Preferred Stock, $100 par value per share (“Serial Preferred Stock”) and/or one or more series of FPL’s Preferred Stock, without par value (“No Par Preferred Stock”). Under the Charter, 10,414,100 shares of Serial Preferred Stock and 5,000,000 shares of No Par Preferred Stock are available for issuance. The Charter also authorizes the issuance of 5,000,000 shares of Subordinated Preferred Stock, without par value (“Subordinated Preferred Stock”). References in this “Description of Preferred Stock” section of this prospectus to preferred stock do not include the Subordinated Preferred Stock.
In the event that the Charter is amended to change its authorized preferred stock, the authorized preferred stock will be described in a prospectus supplement.
Some terms of a series of preferred stock may differ from those of another series. The terms of any preferred stock being offered will be described in a prospectus supplement. These terms will also be described in articles of amendment to the Charter, which will establish the terms of the preferred stock being offered. These terms will include any of the following that apply to that series:
(1)
the class of preferred stock, the number of shares in the series and the title of that series of preferred stock,
​
(2)
the annual rate or rates of dividends payable and the date from which such dividends shall commence to accrue,
​
(3)
the terms and conditions, including the redemption price and the date or dates, on which the shares of the series of preferred stock may be redeemed or converted into another class of security, the manner of effecting such redemption and any restrictions on such redemptions,
​
(4)
any sinking fund or other provisions that would obligate FPL to redeem or repurchase shares of the series of preferred stock, and
​
(5)
with respect to the No Par Preferred Stock only, variations with respect to whole or fractional voting rights and involuntary liquidation values.
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Voting Rights.   NEE, as the owner of all of FPL’s common stock, has sole voting power with respect to FPL, except as provided in the Charter or as otherwise required by law. The voting rights provided in the Charter relating to the Serial Preferred Stock and the No Par Preferred Stock will be described in the applicable prospectus supplement relating to any particular preferred stock being offered.
 
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Liquidation Rights.   In the event of any voluntary liquidation, dissolution or winding up of FPL, unless otherwise described in a related prospectus supplement, the Serial Preferred Stock and No Par Preferred Stock will rank pari passu with all classes of preferred stock then outstanding and shall have a preference over each series of the Subordinated Preferred Stock (none of which has been issued or is currently outstanding) and the common stock until an amount equal to the then current redemption price shall have been paid. In the event of any involuntary liquidation, dissolution or winding up of FPL,
(1)
the Serial Preferred Stock will rank pari passu with all classes of preferred stock then outstanding and shall also have a preference over each series of the Subordinated Preferred Stock and the common stock until $100 per share shall have been paid, and
​
(2)
the No Par Preferred Stock will rank pari passu with all classes of FPL’s preferred stock then outstanding and shall also have a preference over each series of Subordinated Preferred Stock and the common stock until the full involuntary liquidation value thereof, as established upon issuance of the applicable series of No Par Preferred Stock, shall have been paid,
​
plus, in each case, all accumulated and unpaid dividends thereon, if any. Any changes to the liquidation rights of the Serial Preferred Stock and the No Par Preferred Stock will be described in a prospectus supplement relating to any preferred stock being offered.
DESCRIPTION OF WARRANTS
FPL may issue warrants to purchase preferred stock. The terms of any such warrants being offered and any related warrant agreement between FPL and a warrant agent will be described in a prospectus supplement.
DESCRIPTION OF BONDS
General.   FPL will issue first mortgage bonds, in one or more series, under its Mortgage and Deed of Trust dated as of January 1, 1944, with Deutsche Bank Trust Company Americas, as mortgage trustee, which has been amended and supplemented in the past, which may be supplemented prior to the issuance of these first mortgage bonds, and which will be supplemented again by one or more supplemental indentures relating to these first mortgage bonds. The Mortgage and Deed of Trust, as amended and supplemented, is referred to in this prospectus as the “Mortgage.” Deutsche Bank Trust Company Americas, as trustee under the Mortgage, is referred to in this prospectus as the “Mortgage Trustee.” The first mortgage bonds offered pursuant to this prospectus and any applicable prospectus supplement are referred to as the “Bonds.”
FPL may issue an unlimited amount of First Mortgage Bonds under the Mortgage so long as it meets the issuance tests set forth in the Mortgage, which are generally described below under “— Issuance of Additional Bonds.” The Bonds and all other first mortgage bonds issued previously or hereafter under the Mortgage are collectively referred to in this prospectus as the “First Mortgage Bonds.”
This section briefly summarizes some of the terms of the Bonds and some of the provisions of the Mortgage and uses some terms that are not defined in this prospectus but that are defined in the Mortgage. This summary is not complete. You should read this summary together with the Mortgage and the supplemental indenture creating the Bonds for a complete understanding of all the provisions. The Mortgage and the form of supplemental indenture have previously been filed with the SEC, and are exhibits to the registration statement filed with the SEC of which this prospectus is a part. In addition, the Mortgage is qualified as an indenture under the Trust Indenture Act of 1939 and 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 its provisions.
All Bonds of one series need not be issued at the same time, and a series may be re-opened for issuances of additional Bonds of such series. This means that FPL may from time to time, without notice to, or the consent of any existing holders of the previously-issued Bonds of a particular series, create and issue additional Bonds of such series. Such additional Bonds will have the same terms as the previously-issued Bonds of such series in all respects except for the issue date and, if applicable, the initial interest payment date. The additional Bonds will be consolidated and form a single series with the previously-issued Bonds of such series.
 
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Each series of Bonds may have different terms. FPL will include some or all of the following information about a specific series of Bonds in a prospectus supplement relating to that specific series of Bonds:
(1)
the designation and series of those Bonds,
​
(2)
the aggregate principal amount of those Bonds,
​
(3)
the offering price of those Bonds,
​
(4)
the date(s) on which those Bonds will mature,
​
(5)
the interest rate(s) for those Bonds, or how the interest rate(s) will be determined,
​
(6)
the dates on which FPL will pay the interest on those Bonds,
​
(7)
the denominations in which FPL may issue those Bonds, if other than denominations of $1,000 or multiples of $1,000,
​
(8)
the place where the principal of and interest on those Bonds will be payable, if other than at Deutsche Bank Trust Company Americas in New York City,
​
(9)
the currency or currencies in which payment of the principal of and interest on those Bonds may be made, if other than U.S. dollars,
​
(10)
the terms pursuant to which FPL may redeem any of those Bonds,
​
(11)
whether all or a portion of those Bonds will be in global form, and
​
(12)
any other terms or provisions relating to those Bonds that are not inconsistent with the provisions of the Mortgage.
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FPL will issue the Bonds in fully registered form without coupons, unless otherwise stated in a prospectus supplement. A holder of Bonds may exchange those Bonds, without charge, for an equal aggregate principal amount of Bonds of the same series, having the same issue date and with identical terms and provisions, unless otherwise stated in a prospectus supplement. A holder of Bonds may transfer those Bonds without cost to the holder, other than for applicable stamp taxes or other governmental charges, unless otherwise stated in a prospectus supplement.
Reserved Amendment Rights and Consents.   FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, to make changes to the Mortgage, including those described in this “Description of Bonds.” In addition, each initial and future Holder of the Bonds that FPL may offer pursuant to this prospectus, by its acquisition of an interest in such Bonds, will irrevocably (a) consent to the amendments to the Mortgage described herein and set forth in the One Hundred Twenty-Eighth Supplemental Indenture referred to below, and (b) designate the Mortgage Trustee, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on behalf of such Holder in favor of such amendments at any meeting of bondholders, in lieu of any meeting of bondholders, in any consent solicitation or otherwise. This section briefly summarizes the reserved amendment rights that relate to the provisions of the Mortgage described herein. This summary is not complete. You should read this summary together with the One Hundred Twenty-Eighth Supplemental Indenture, dated as of June 15, 2018, which has been filed with the SEC and is an exhibit to the registration statement filed with the SEC of which this prospectus is a part, together with the Mortgage for a complete understanding of the reserved amendment rights.
Special Provisions for Retirement of Bonds.   If, during any 12 month period, any governmental body orders FPL to dispose of mortgaged property, or buys mortgaged property from FPL, and FPL receives $10 million or more from the sale or disposition, then, in most cases, FPL must use that money to redeem First Mortgage Bonds. If this occurs, FPL may redeem First Mortgage Bonds of any series that are redeemable for such reason at the redemption prices applicable to those First Mortgage Bonds. If any Bonds are so redeemable, the redemption prices applicable to those Bonds will be set forth in a prospectus supplement.
Security.   The Mortgage secures the Bonds as well as all other First Mortgage Bonds already issued under the Mortgage and still outstanding. FPL may issue more First Mortgage Bonds in the future and
 
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those First Mortgage Bonds will also be secured by the Mortgage. The Mortgage constitutes a first mortgage lien on all of the properties and franchises that FPL owns, except as discussed below.
The lien of the Mortgage is or may be subject to the following:
(1)
leases of minor portions of FPL’s property to others for uses that do not interfere with FPL’s business,
​
(2)
leases of certain property that is not used in FPL’s electric business,
​
(3)
Excepted Encumbrances, which include certain tax and real estate liens, and specified rights, easements, restrictions and other obligations, and
​
(4)
vendors’ liens, purchase money mortgages and liens on property that already exist at the time FPL acquires that property.
​
FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, to revise the definition of “Excepted Encumbrances” to mean the following:
(1)
tax liens, assessments and other governmental charges or requirements which are not delinquent or which are being contested in good faith and by appropriate proceedings or of which at least ten business days’ notice has not been given to FPL’s general counsel or to such other person designated by FPL to receive such notices,
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(2)
mechanics’, workmen’s, repairmen’s, materialmen’s, warehousemen’s and carriers’ liens, other liens incident to construction, liens or privileges of any of FPL’s employees for salary or wages earned, but not yet payable, and other liens, including without limitation liens for worker’s compensation awards, arising in the ordinary course of business for charges or requirements which are not delinquent or which are being contested in good faith and by appropriate proceedings or of which at least ten business days’ notice has not been given to FPL’s general counsel or to such other person designated by FPL to receive such notices,
​
(3)
specified judgment liens and prepaid liens,
​
(4)
easements, leases, reservations or other rights of others (including governmental entities) in, and defects of title in, FPL’s property,
​
(5)
liens securing indebtedness or other obligations relating to real property FPL acquired for specified transmission or distribution purposes or for the purpose of obtaining rights-of-way,
​
(6)
specified leases and leasehold, license, franchise and permit interests,
​
(7)
liens resulting from law, rules, regulations, orders or rights of governmental authorities and specified liens required by law or governmental regulations,
​
(8)
liens to secure public obligations; rights of others to take minerals, timber, electric energy or capacity, gas, water, steam or other products produced by FPL or by others on FPL’s property,
​
(9)
rights and interests of persons other than FPL arising out of agreements relating to the common ownership or joint use of property, and liens on the interests of those persons in the property,
​
(10)
restrictions on assignment and/or requirements of any assignee to qualify as a permitted assignee and/or public utility or public services corporation,
​
(11)
liens which have been bonded for the full amount in dispute or for the payment of which other adequate security arrangements have been made, and
​
(12)
easements, ground leases or rights-of-way for the purpose of roads, pipe lines, transmission lines, distribution lines, communication lines, railways, removal or transportation of coal, lignite, gas, oil or other minerals or timber, and other like purposes, or for the joint or common use of real property, rights-of-way, facilities and/or equipment.
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The Mortgage does not create a lien on the following “excepted property”:
(1)
cash and securities,
​
(2)
certain equipment, materials or supplies and fuel (including nuclear fuel unless it is expressly subjected to the lien of the Mortgage),
​
(3)
automobiles and other vehicles,
​
(4)
receivables, contracts, leases and operating agreements,
​
(5)
materials or products, including electric energy, that FPL generates, produces or purchases for sale or use by FPL, and
​
(6)
timber, minerals, mineral rights and royalties.
​
The Mortgage will generally also create a lien on property that FPL acquires after the date of this prospectus, other than “excepted property.” However, if FPL consolidates with or merges into, or transfers substantially all of the mortgaged property to, another company, the lien created by the Mortgage will generally not cover the property of the successor company, other than the mortgaged property that it acquires from FPL and improvements, replacements and additions to the mortgaged property.
The Mortgage provides that the Mortgage Trustee has a lien on the mortgaged property for the payment of its reasonable compensation and expenses and for indemnity against certain liabilities. This lien takes priority over the lien securing the Bonds.
Issuance of Additional Bonds.   FPL may issue an unlimited amount of First Mortgage Bonds under the Mortgage so long as it meets the issuance tests set forth in the Mortgage, which are generally described below. FPL may issue Bonds from time to time in an amount equal to:
(1)
60% of unfunded Property Additions after adjustments to offset retirements,
​
(2)
the amount of retired First Mortgage Bonds or Qualified Lien Bonds (as such term is defined in the Mortgage), and
​
(3)
the amount of cash that FPL deposits with the Mortgage Trustee.
​
“Property Additions” generally include the following:
(a)
plants, lines, pipes, mains, cables, machinery, boilers, transmission lines, pipe lines, distribution systems, service systems and supply systems,
​
(b)
nuclear fuel that has been expressly subjected to the lien of the Mortgage,
​
(c)
railroad cars, barges and other transportation equipment (other than trucks) for the transportation of fuel, and
​
(d)
other property, real or personal, and improvements, extensions, additions, renewals or replacements located within the United States of America or its coastal waters.
​
FPL may use any mortgaged property of the type described in (a) through (d) immediately above as Property Additions whether or not that property is in operation and prior to obtaining permits or licenses relating to that property. Securities, fuel (including nuclear fuel unless expressly subjected to the lien of the Mortgage), automobiles or other vehicles, or property used principally for the production or gathering of natural gas do not qualify as Property Additions. The Mortgage contains restrictions on the issuance of First Mortgage Bonds based on Property Additions that are subject to other liens and upon the increase of the amount of those liens.
FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, to revise the definition of Property Additions to include any fuel, vehicles or natural gas production or gathering property that become mortgaged property.
 
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In most cases, FPL may not issue Bonds unless it meets the “net earnings” test set forth in the Mortgage, which requires, generally, that FPL’s adjusted net earnings (before income taxes) for 12 consecutive months out of the 15 months preceding the issuance must have been either:
(1)
at least twice the annual interest requirements on all First Mortgage Bonds at the time outstanding, including the Bonds that FPL proposes to issue at the pertinent time, and all indebtedness of FPL that ranks prior or equal to the First Mortgage Bonds, or
​
(2)
at least 10% of the principal amount of all First Mortgage Bonds at the time outstanding, including the Bonds that FPL proposes to issue at the pertinent time, and all indebtedness of FPL that ranks prior or equal to the First Mortgage Bonds.
​
The Mortgage requires FPL to replace obsolete or worn out mortgaged property and specifies certain deductions to FPL’s adjusted net earnings for property repairs, retirement, additions and maintenance. With certain exceptions, FPL does not need to meet the “net earnings” test to issue Bonds if the issuance is based on retired First Mortgage Bonds or Qualified Lien Bonds.
As of December 31, 2020, FPL could have issued under the Mortgage in excess of $18.4 billion of additional First Mortgage Bonds based on unfunded Property Additions and in excess of $6.6 billion of additional First Mortgage Bonds based on retired First Mortgage Bonds.
Recalibration of Funded Property.   FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, to change the definition of Funded Property (as defined in the Mortgage), as long as FPL has delivered to the Mortgage Trustee an independent engineer’s certificate referred to as a “funded property certificate.” This funded property certificate would describe all or a portion of mortgaged property which has a fair value not less than 10/6ths of the sum of the principal amount of the First Mortgage Bonds outstanding and the principal amount of the First Mortgage Bonds that FPL is entitled to have authenticated on the basis of retired First Mortgage Bonds. Once this funded property certificate is delivered to the Mortgage Trustee, the definition of Funded Property will mean any mortgaged property described in the funded property certificate. Property Additions will become Funded Property when used under the Mortgage for the issuance of First Mortgage Bonds, the release or retirement of Funded Property, or the withdrawal of cash deposited with the Mortgage Trustee for the issuance of First Mortgage Bonds or the release of Funded Property.
Release and Substitution of Property.   FPL may release property from the lien of the Mortgage if it does any of the following in an aggregate amount equal to the fair value of the property to be released:
(1)
deposits with the Mortgage Trustee, cash or, to a limited extent, purchase money mortgages,
​
(2)
uses unfunded Property Additions acquired by FPL in the last five years, or
​
(3)
waives its right to issue First Mortgage Bonds,
​
in each case without satisfying any net earnings requirement.
FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, as follows:
(1)
to permit releases of property without the sale or disposition of such property;
​
(2)
to eliminate the five-year limit referred to in clause (2) above; and,
​
(3)
to specify that releases of property can be made on the basis of (i) the aggregate principal amount of First Mortgage Bonds that FPL would be entitled to issue on the basis of retired Qualified Lien Bonds; or (ii) 10/6ths of the aggregate principal amount of First Mortgage Bonds that FPL would be entitled to issue on the basis of retired First Mortgage Bonds, in each case with the entitlement being waived by operation of the release, and in each case without satisfying any net earnings requirement.
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In addition, FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, to permit FPL to release unfunded property if after such release at least one dollar in unfunded Property Additions remains subject to the lien of the Mortgage.
If FPL deposits cash so that it may release property from the lien of the Mortgage or so that it may issue additional First Mortgage Bonds, it may withdraw that cash if it uses unfunded Property Additions or waives its right to issue First Mortgage Bonds without satisfying any net earnings requirement in an amount equal to the cash that FPL seeks to withdraw.
When property released from the lien of the Mortgage is not Funded Property, then, if FPL acquires new Property Additions and files the necessary certificates and opinions with the Mortgage Trustee within two years after such release:
(1)
Property Additions used for the release of that property will not (subject to some exceptions) be considered Funded Property, and
​
(2)
any waiver by FPL of its right to issue First Mortgage Bonds, which waiver is used for the release of that property, will cease to be an effective waiver and FPL will regain the right to issue those First Mortgage Bonds.
​
The Mortgage contains provisions relating to the withdrawal or application of cash proceeds of mortgaged property that is not Funded Property that are deposited with the Mortgage Trustee, which provisions are similar to the provisions relating to release of that property. The Mortgage contains special provisions relating to pledged Qualified Lien Bonds and the disposition of money received on those Qualified Lien Bonds.
FPL does not need a release from the Mortgage in order to use its nuclear fuel even if that nuclear fuel has been expressly subjected to the lien and operation of the Mortgage.
Dividend Restrictions.   FPL will not enter into a dividend covenant with respect to the Bonds; however, so long as First Mortgage Bonds issued prior to June 15, 2018 are outstanding, the Mortgage will restrict the amount of retained earnings that FPL can use to pay cash dividends on its common stock. The restricted amount may change depending on factors set out in the Mortgage. Other than this restriction on the payment of common stock dividends, the Mortgage does not restrict FPL’s use of retained earnings. As of December 31, 2020, no retained earnings were restricted by these provisions of the Mortgage.
Modification of the Mortgage.   Generally the rights of the holders of First Mortgage Bonds may be modified with the consent of the holders of a majority of the principal amount of all of the outstanding First Mortgage Bonds. However, if less than all series of First Mortgage Bonds are affected by a modification, that modification instead requires the consent of the holders of a majority of the principal amount of the outstanding First Mortgage Bonds of all series that are so affected.
Notwithstanding the right to modify of the Mortgage described above, in most cases, the following modifications will not be effective against any holder of First Mortgage Bonds affected by the modification unless that holder consents to:
(1)
modification of the terms of payment of principal and interest payable to that holder,
​
(2)
modification creating an equal or prior lien on the mortgaged property or depriving that holder of the benefit of the lien of the Mortgage, and
​
(3)
modification reducing the percentage vote required for modification.
​
Generally FPL has the right to amend the Mortgage, without the consent of the holders of any First Mortgage Bonds, for any of the following purposes:
(1)
to waive, surrender or restrict any power, privilege or right conferred on FPL under the Mortgage,
​
(2)
to enter into any further covenants, limitations and restrictions for the benefit of any one or more series of bonds,
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(3)
to cure any ambiguity in the Mortgage or any supplemental indenture, or
​
(4)
to establish the terms and provisions of any new series of First Mortgage Bonds.
​
FPL has reserved the right to amend the Mortgage without the consent or other action by the holders of any First Mortgage Bonds created on or after June 15, 2018, to permit FPL to amend the Mortgage without the consent of any holders of First Mortgage Bonds for any of the following additional purposes:
(1)
to evidence the assumption by any permitted successor of FPL’s covenants in the Mortgage and in the First Mortgage Bonds,
​
(2)
to correct or amplify the description of any property at any time subject to the lien of the Mortgage, or better to assure, convey and confirm unto the Mortgage Trustee any property subject or required to be subjected to the lien of the Mortgage, or to subject to the lien of the Mortgage additional property,
​
(3)
to change, eliminate or add any provision to the Mortgage; provided that no such change, elimination or addition will adversely affect the interests of the holders of First Mortgage Bonds of any series in any material respect,
​
(4)
to provide for the procedures required for use of a non-certificated system of registration for the First Mortgage Bonds of all or any series,
​
(5)
to change any place where principal, premium, if any, and interest shall be payable, First Mortgage Bonds may be surrendered for registration of transfer or exchange, and notices and demands to FPL may be served, or
​
(6)
to cure any ambiguity or to make any other changes or additions to the provisions of the Mortgage if such changes or additions will not adversely affect the interests of First Mortgage Bonds of any series in any material respect.
​
Default and Notice Thereof.   The following are defaults under the Mortgage:
(1)
failure to pay the principal of any First Mortgage Bond when due,
​
(2)
failure to pay interest on any First Mortgage Bond for 60 days after that interest is due,
​
(3)
failure to pay principal of or interest on any Qualified Lien Bond beyond any applicable grace period for the payment of that principal or interest,
​
(4)
failure to pay any installments of funds for retirement of First Mortgage Bonds for 60 days after that installment is due,
​
(5)
certain events in bankruptcy, insolvency or reorganization pertaining to FPL, and
​
(6)
the expiration of 90 days following notice by the Mortgage Trustee or the holders of 15% of the First Mortgage Bonds relating to any failure by FPL to perform its other covenants under the Mortgage.
​
Except in the case of failure to pay principal, interest or any installment for retirement of First Mortgage Bonds, the Mortgage Trustee may withhold notice of default if it believes that withholding the notice is in the interests of the holders of First Mortgage Bonds.
Upon a default, the Mortgage Trustee or holders of 25% of the First Mortgage Bonds may declare the principal and the interest due. The holders of a majority of the First Mortgage Bonds may annul that declaration if the default has been cured. No holder of First Mortgage Bonds may enforce the lien of the Mortgage unless the following things have occurred:
(1)
the holder has given the Mortgage Trustee written notice of a default,
​
(2)
the holders of 25% of the First Mortgage Bonds have requested the Mortgage Trustee to act and offered it reasonable opportunity to act and indemnity satisfactory to the Mortgage Trustee for the costs, expenses and liabilities that the Mortgage Trustee may incur by acting, and
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(3)
the Mortgage Trustee has failed to act.
​
Notwithstanding the foregoing, a holder of First Mortgage Bonds has the right to sue FPL if FPL fails to pay, when due, interest or principal on those First Mortgage Bonds, unless that holder gives up that right.
The Mortgage Trustee is not required to risk its funds or incur personal liability if there is reasonable ground for believing that the repayment is not reasonably assured. The holders of a majority of the First Mortgage Bonds may direct the time, method, and place of conducting any proceedings for any remedy available to the Mortgage Trustee, or exercising any of the Mortgage Trustee’s powers.
Redemption.   The redemption terms of the Bonds, if any, will be set forth in a prospectus supplement. Unless otherwise provided in the related prospectus supplement, and except with respect to Bonds redeemable at the option of the holder, Bonds will be redeemable upon notice at least 30 days prior to the redemption date. If less than all of the Bonds of any series are to be redeemed, the Mortgage Trustee will select the First Mortgage Bonds to be redeemed by proration.
Bonds selected for redemption will cease to bear interest on the redemption date. The Mortgage Trustee will pay the redemption price and any accrued interest once the Bonds are surrendered for redemption. If only part of a Bond is redeemed, the Mortgage Trustee will deliver a new Bond of the same series for the remaining portion without charge.
Any redemption at the option of FPL may be conditional upon the receipt by the Mortgage Trustee, prior to the date fixed for redemption, of money sufficient to pay the redemption price. If at the time notice of redemption is given, the redemption moneys are not on deposit with the Mortgage Trustee, then, if such notice so provides, the redemption shall be subject to the receipt of the redemption moneys on or before the redemption date and such notice of redemption shall be of no force or effect unless such moneys are received.
Purchase of the Bonds.   FPL or its affiliates, may at any time and from time to time, purchase all or some of the Bonds at any price or prices, whether by tender, in the open market or by private agreement or otherwise, subject to applicable law.
Satisfaction and Discharge of Mortgage.   The Mortgage may be satisfied and discharged if and when FPL provides for the payment of all of the First Mortgage Bonds and all other sums due under the Mortgage.
Evidence to be Furnished to the Mortgage Trustee.   FPL furnishes written statements of FPL’s officers, or persons selected or paid by FPL, annually (and when certain events occur) to the Mortgage Trustee to show that FPL is in compliance with Mortgage provisions and that there are no defaults under the Mortgage. In some cases, these written statements must be provided by counsel or by an independent accountant, appraiser or engineer.
DESCRIPTION OF SENIOR DEBT SECURITIES
General.   FPL may issue its senior debt securities (other than the Bonds), in one or more series, under an Indenture, dated as of November 1, 2017 between FPL and The Bank of New York Mellon, as indenture trustee or another indenture among FPL and The Bank of New York Mellon as specified in the related prospectus supplement. The indenture or indentures pursuant to which FPL Senior Debt Securities may be issued, as they may be amended and supplemented from time to time, are referred to in this prospectus as the “Indenture.” The Bank of New York Mellon, as trustee under the Indenture, is referred to in this prospectus as the “Indenture Trustee.” These senior debt securities offered pursuant to this prospectus and any applicable prospectus supplement are referred to as the “Offered Senior Debt Securities.”
The Indenture provides for the issuance from time to time of debentures, notes or other senior debt by FPL in an unlimited amount. The Offered Senior Debt Securities and all other debentures, notes or other debt of FPL issued previously or hereafter under the Indenture are collectively referred to in this prospectus as the “Senior Debt Securities.”
This section briefly summarizes some of the terms of the Offered Senior Debt Securities and some of the provisions of the Indenture. This summary does not contain a complete description of the Offered Senior
 
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Debt Securities or the Indenture. You should read this summary together with the Indenture and the officer’s certificates or other documents creating the Offered Senior Debt Securities for a complete understanding of all the provisions and for the definitions of some terms used in this summary. The Indenture, the form of officer’s certificate that may be used to create a series of Offered Senior Debt Securities and a form of Offered Senior Debt Securities have previously been filed with the SEC, and are exhibits to the registration statement filed with the SEC of which this prospectus is a part. In addition, the Indenture is or will be qualified under the Trust Indenture Act of 1939 and 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 its provisions.
All Offered Senior Debt Securities of one series need not be issued at the same time, and a series may be re-opened for issuances of additional Offered Senior Debt Securities of such series. This means that FPL may from time to time, without notice to, or the consent of any existing holders of the previously-issued Offered Senior Debt Securities of a particular series, create and issue additional Offered Senior Debt Securities of such series. Such additional Offered Senior Debt Securities will have the same terms as the previously-issued Offered Senior Debt Securities of such series in all respects except for the issue date and, if applicable, the initial interest payment date. The additional Offered Senior Debt Securities will be consolidated and form a single series with the previously-issued Offered Senior Debt Securities of such series.
Each series of Offered Senior Debt Securities may have different terms. FPL will include some or all of the following information about a specific series of Offered Senior Debt Securities in a prospectus supplement relating to that specific series of Offered Senior Debt Securities:
(1)
the title of those Offered Senior Debt Securities,
​
(2)
any limit upon the aggregate principal amount of those Offered Senior Debt Securities,
​
(3)
the date(s) on which the principal of those Offered Senior Debt Securities will be paid,
​
(4)
the rate(s) of interest on those Offered Senior Debt Securities, or how the rate(s) of interest will be determined, the date(s) from which interest will accrue, the dates on which interest will be paid and the record date for any interest payable on any interest payment date,
​
(5)
the person to whom interest will be paid on those Offered Senior Debt Securities on any interest payment date, if other than the person in whose name those Offered Senior 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 payments will be made on those Offered Senior Debt Securities and the place(s) at which or methods by which the registered owners of those Offered Senior Debt Securities may transfer or exchange those Offered Senior Debt Securities and serve notices and demands to or upon FPL,
​
(7)
the security registrar and any paying agent or agents for those Offered Senior Debt Securities,
​
(8)
any date(s) on which, the price(s) at which and the terms and conditions upon which those Offered Senior Debt Securities may be redeemed at the option of FPL, in whole or in part, and any restrictions on those redemptions,
​
(9)
any sinking fund or other provisions, including any options held by the registered owners of those Offered Senior Debt Securities, that would obligate FPL to repurchase, redeem or repay those Offered Senior Debt Securities,
​
(10)
the denominations in which those Offered Senior Debt Securities may be issued, if other than denominations of $1,000 and any integral multiple of $1,000,
​
(11)
the currency or currencies in which the principal of or premium, if any, or interest on those Offered Senior Debt Securities may be paid (if other than in U.S. dollars),
​
(12)
if FPL or a registered owner may elect to pay, or receive, principal of or premium, if any, or
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interest on those Offered Senior Debt Securities in a currency other than that in which those Offered Senior Debt Securities are stated to be payable, the terms and conditions upon which that election may be made,
(13)
if the principal of or premium, if any, or interest on those Offered Senior Debt Securities may be paid in securities or other property, the type and amount of those securities or other property and the terms and conditions upon which FPL 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 Senior 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 Senior Debt Securities that will be paid upon declaration of acceleration of the maturity of those Offered Senior Debt Securities, if other than the entire principal amount of those Offered Senior Debt Securities,
​
(16)
events of default, if any, with respect to those Offered Senior Debt Securities and covenants of FPL, if any, for the benefit of the registered owners of those Offered Senior Debt Securities, other than those specified in the Indenture or any exceptions to those specified in the Indenture,
​
(17)
the terms, if any, pursuant to which those Offered Senior Debt Securities may be converted into or exchanged for shares of capital stock or other securities of any other entity,
​
(18)
a definition of “Eligible Obligations” under the Indenture with respect to those Offered Senior Debt Securities denominated in a currency other than U.S. dollars, and whether Eligible Obligations include Investment Securities (as defined in the Indenture) with respect to those Offered Senior Debt Securities
​
(19)
any provisions for the reinstatement of FPL’s indebtedness in respect of those Offered Senior Debt Securities after their satisfaction and discharge,
​
(20)
if those Offered Senior Debt Securities will be issued in global form, necessary information relating to the issuance of those Offered Senior Debt Securities in global form,
​
(21)
if those Offered Senior Debt Securities will be issued as bearer securities, necessary information relating to the issuance of those Offered Senior Debt Securities as bearer securities,
​
(22)
any limits on the rights of the registered owners of those Offered Senior Debt Securities to transfer or exchange those Offered Senior Debt Securities or to register their transfer, and any related service charges,
​
(23)
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 Senior Debt Securities,
​
(24)
any collateral security, assurance, or guarantee for those Offered Senior Debt Securities, and
​
(25)
any other terms of those Offered Senior Debt Securities that are not inconsistent with the provisions of the Indenture. (Indenture, Section 301).
​
FPL may sell Offered Senior Debt Securities at a discount below their principal amount. Some of the important United States federal income tax considerations applicable to Offered Senior 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 Senior 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 Senior Debt Securities protection in the event of a highly-leveraged transaction involving FPL.
 
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Security and Ranking.   The Offered Senior Debt Securities will be unsecured obligations of FPL. The Indenture does not limit FPL’s ability to provide security with respect to other Senior Debt Securities. All Senior Debt Securities issued under the Indenture will rank equally and ratably with all other Senior Debt Securities issued under the Indenture, except to the extent that FPL elects to provide security with respect to any Senior Debt Security (other than the Offered Senior Debt Securities) without providing that security to all outstanding Senior Debt Securities in accordance with the Indenture. The Offered Senior Debt Securities will rank senior to any debt securities of FPL that are expressly subordinated by their terms. The Senior Debt Securities will effectively rank junior to FPL’s First Mortgage Bonds, which are secured by a lien on substantially all of the properties and franchises that FPL owns. The Indenture does not limit the aggregate amount of indebtedness that FPL may issue, guarantee or otherwise incur.
Payment and Paying Agents.   Except as stated in the related prospectus supplement, on each interest payment date FPL will pay interest on each Offered Senior Debt Security to the person in whose name that Offered Senior 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 Senior Debt Securities mature, FPL will pay the interest to the person to whom it pays the principal. Also, if FPL has defaulted in the payment of interest on any Offered Senior Debt Security, it may pay that defaulted interest to the registered owner of that Offered Senior 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 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 Senior Debt Security is listed and that the Indenture Trustee believes is practicable. (Indenture, Section 307).
​
Unless otherwise stated in the related prospectus supplement, the principal, premium, if any, and interest on the Offered Senior Debt Securities at maturity will be payable when such Offered Senior Debt Securities are presented at the main corporate trust office of The Bank of New York Mellon, as paying agent, in New York City. FPL may change the place of payment on the Offered Senior Debt Securities, appoint one or more additional paying agents, including FPL, and remove any paying agent. (Indenture, Section 602).
Transfer and Exchange.   Unless otherwise stated in the related prospectus supplement, Offered Senior Debt Securities may be transferred or exchanged at the main corporate trust office of The Bank of New York Mellon, as security registrar, in New York City. FPL may change the place for transfer and exchange of the Offered Senior 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 Senior Debt Securities. However, FPL may require payment of any tax or other governmental charge in connection with any transfer or exchange of the Offered Senior Debt Securities.
FPL will not be required to transfer or exchange any Offered Senior Debt Security selected for redemption. Also, FPL will not be required to transfer or exchange any Offered Senior Debt Security during a period of 15 days before (i) notice is to be given identifying the Offered Senior Debt Securities selected to be redeemed, and (ii) an Interest Payment Date. (Indenture, Section 305).
Defeasance.   FPL may, at any time, elect to have all of its obligations discharged with respect to all or a portion of any Senior Debt Securities. To do so, FPL 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 Senior 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 Senior Debt Securities,
​
(a)
direct obligations of, or obligations unconditionally guaranteed by, the United States and
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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,
(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, and
​
(c)
certain other investment-grade securities specified in the Indenture,
​
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 Senior 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 Senior Debt Securities, on or prior to their maturity. (Indenture, Section 701).
​
Redemption.   The redemption terms of the Offered Senior Debt Securities, if any, will be set forth in a prospectus supplement. Unless otherwise provided in the related prospectus supplement, and except with respect to Offered Senior Debt Securities redeemable at the option of the holder, Offered Senior Debt Securities will be redeemable upon notice between 10 and 60 days prior to the redemption date. If less than all of the Offered Senior Debt Securities of any series or any tranche thereof are to be redeemed and are held in certificated form, the Indenture Trustee will select the Offered Senior Debt Securities to be redeemed by lot. However, if the Offered Senior Debt Securities are held in book-entry form, the Offered Senior Debt Securities to be redeemed shall be selected in accordance with the procedures of the applicable depositary. (Indenture, Sections 403 and 404).
Offered Senior Debt Securities selected for redemption will cease to bear interest on the redemption date. The paying agent will pay the redemption price and any accrued interest once the Offered Senior Debt Securities are surrendered for redemption. (Indenture, Section 405). Except as stated in the related prospectus supplement, on the redemption date FPL will pay interest on the Offered Senior Debt Securities being redeemed to the person to whom it pays the redemption price. If only part of an Offered Senior Debt Security is redeemed, the Indenture Trustee may deliver a new Offered Senior Debt Security of the same series for the remaining portion without charge. (Indenture, Section 406).
Any redemption at the option of FPL may be conditional upon the receipt by the paying agent, on or prior to the date fixed for redemption, of money sufficient to pay the redemption price. If at the time notice of redemption is given, the redemption moneys are not on deposit with the paying agent, then, if such notice so provides, the redemption shall be subject to the receipt of the redemption moneys on or before the Redemption Date and such notice of redemption shall be of no force or effect unless such moneys are received. (Indenture, Section 404).
Purchase of the Offered Senior Debt Securities.   FPL or its affiliates, may at any time and from time to time, purchase all or some of the Offered Senior Debt Securities at any price or prices, whether by tender, in the open market or by private agreement or otherwise, subject to applicable law.
Consolidation, Merger, and Sale of Assets.   Under the Indenture, FPL 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 is merged, or the entity that acquires or leases FPL’s properties 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’s obligations on all Senior Debt Securities and under the Indenture,
​
(2)
immediately after giving effect to the transaction, no event of default under the Indenture and no
​
 
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event that, after notice or lapse of time or both, would become an event of default under the Indenture exists, and
(3)
FPL 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 prevent or restrict:
(a)
any consolidation or merger after the consummation of which FPL would be the surviving or resulting entity,
​
(b)
any consolidation of FPL with any other entity all of the outstanding voting securities of which are owned, directly or indirectly, by FPL, or any merger of any such entity into any other of such entities, or any conveyance or other transfer, or lease, of properties or assets by any thereof to any other thereof,
​
(c)
any conveyance or other transfer, or lease, of any part of the properties or assets of FPL which does not constitute the entirety, or substantially the entirety, thereof,
​
(d)
the approval by FPL of or the consent by FPL to any consolidation or merger to which any direct or indirect subsidiary or affiliate of FPL may be a party, or any conveyance, transfer or lease by any such subsidiary or affiliate of any or all of its properties or assets, or
​
(e)
any other transaction not contemplated by (1), (2) or (3) in the preceding paragraph. (Indenture, Section 1103).
​
Events of Default.   Each of the following is an event of default under the Indenture with respect to the Senior Debt Securities of any series:
(1)
failure to pay interest on the Senior Debt Securities of that series within 30 days after it is due,
​
(2)
failure to pay principal or premium, if any, on the Senior Debt Securities of that series when it is due,
​
(3)
failure to perform, or breach of, any other covenant or warranty in the Indenture, other than a covenant or warranty that does not relate to that series of Senior Debt Securities, that continues for 90 days after (i) FPL receives written notice of such failure to comply from the Indenture Trustee or (ii) FPL and the Indenture Trustee receive written notice of such failure to comply from the registered owners of at least 33% in principal amount of the Senior Debt Securities of that series,
​
(4)
certain events of bankruptcy, insolvency or reorganization of FPL, or
​
(5)
any other event of default specified with respect to the Senior Debt Securities of that series. (Indenture, Section 801).
​
In the case of an event of default listed in item (3) above, the Indenture Trustee may extend the grace period. In addition, if registered owners of a particular series have given a notice of default, then registered owners of at least the same percentage of Senior Debt Securities of that series, together with the Indenture Trustee, may also extend the grace period. The grace period will be automatically extended if FPL has initiated and is diligently pursuing corrective action in good faith. (Indenture, Section 801). An event of default with respect to the Senior Debt Securities of a particular series will not necessarily constitute an event of default with respect to Senior Debt Securities of any other series issued under the Indenture.
Remedies.   If an event of default applicable to the Senior Debt Securities of one or more series, but not applicable to all outstanding Senior Debt Securities, exists, then either (i) the Indenture Trustee or (ii) the registered owners of at least 33% in aggregate principal amount of the Senior Debt Securities of each of the affected series may declare the principal of and accrued but unpaid interest on all the Senior Debt Securities of that series to be due and payable immediately. (Indenture, Section 802). However, under the Indenture, some Senior Debt Securities may provide for a specified amount less than their entire principal amount to be due and payable upon that declaration. Such a Senior Debt Security is defined as a “Discount Security” in the Indenture.
 
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If an event of default is applicable to all outstanding Senior Debt Securities, then either (i) the Indenture Trustee or (ii) the registered owners of at least 33% in aggregate principal amount of all outstanding Senior 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 Senior 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 pays or deposits with the Indenture Trustee a sum sufficient to pay:
​
(a)
all overdue interest, if any, on all Senior Debt Securities of that series then outstanding,
​
(b)
the principal of and any premium on any Senior 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 then due to the Indenture Trustee under the Indenture, and
​
(2)
if, after application of money paid or deposited as described in item (1) above, Senior Debt Securities of that series would remain outstanding, any other event of default with respect to the Senior 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 of the Senior Debt Securities, 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 Senior 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 Senior Debt Securities of that series. However, if an event of default under the Indenture relates to more than one series of Senior Debt Securities, only the registered owners of a majority in aggregate principal amount of all affected series of Senior 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 the indemnity would not, in the Indenture Trustee’s sole discretion, be adequate, and the Indenture Trustee may take any other action that it deems proper and not inconsistent with such direction. (Indenture, Section 812).
A registered owner of a Senior Debt Security has the right to institute a suit for the enforcement of payment of the principal of or premium, if any, or interest on that Senior Debt Security on or after the applicable due date specified in that Senior Debt Security. (Indenture, Section 808). No registered owner of Senior Debt Securities of any series will have any other right to institute any proceeding under the Indenture, or any other 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 Senior Debt Securities of that series,
​
(2)
the registered owners of a majority in aggregate principal amount of the outstanding Senior 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 to institute that proceeding in its own name as trustee, and have offered reasonable indemnity to the Indenture Trustee against related costs, expenses and liabilities,
​
(3)
the Indenture Trustee for 60 days after its receipt of that notice, request and offer of indemnity has failed to institute any such proceeding, and
​
(4)
no direction inconsistent with that request was given to the Indenture Trustee during this 60 day period by the registered owners of a majority in aggregate principal amount of the outstanding
​
 
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Senior Debt Securities of all series in respect of which an event of default under the Indenture exists, considered as one class. (Indenture, Section 807).
FPL 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 Senior Debt Securities, FPL 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 of FPL’s obligations under the Indenture and the Senior Debt Securities in the case of a merger or consolidation or a conveyance, transfer or lease of FPL’s properties and assets substantially as an entirety,
​
(2)
to add covenants of FPL or to surrender any right or power conferred upon FPL 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 Senior Debt Securities of any series or tranche, that change, elimination or addition will become effective with respect to that particular series or tranche only
​
(a)
when the required consent of the registered owners of Senior Debt Securities of that particular series or tranche has been obtained, or
​
(b)
when no Senior Debt Securities of that particular series or tranche remain outstanding under the Indenture,
​
(5)
to provide collateral security for all but not a part of the Senior Debt Securities,
​
(6)
to create the form or terms of Senior 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 or co-trustee with respect to the Senior 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 all, or any series or tranche of, the Senior Debt Securities,
​
(10)
to change any place where
​
(a)
the principal of and premium, if any, and interest on all, or any series or tranche of, Senior Debt Securities are payable,
​
(b)
all, or any series or tranche of, Senior Debt Securities may be surrendered for registration, transfer or exchange, and
​
(c)
notices and demands to or upon FPL in respect of Senior Debt Securities and the Indenture may be served,
​
(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 Senior Debt Securities of any series or tranche, or
​
(12)
to amend and restate the Indenture in its entirety, but with such additions, deletions and other changes as shall not adversely affect the interests of the holders of Senior Debt Securities of any series or tranche in any material respect. (Indenture, Section 1201).
​
 
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The registered owners of a majority in aggregate principal amount of the Senior Debt Securities of all series then outstanding may waive compliance by FPL with certain restrictive provisions of the Indenture. (Indenture, Section 607). The registered owners of a majority in principal amount of the outstanding Senior 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 Senior 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 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 Senior 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 Senior 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 Senior Debt Securities of all directly affected series, considered as one class, is required. But, if FPL issues any series of Senior Debt Securities in more than one tranche and if the proposed supplemental indenture directly affects the rights of the registered owners of Senior 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 Senior 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 Senior Debt Security is due without the consent of the registered owner of that Senior Debt Security,
​
(2)
reduce any Senior 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 Senior Debt Security,
​
(3)
reduce any premium payable upon the redemption of a Senior Debt Security without the consent of the registered owner of that Senior Debt Security,
​
(4)
change the currency (or other property) in which a Senior Debt Security is payable without the consent of the registered owner of that Senior Debt Security,
​
(5)
impair the right to sue to enforce payments on any Senior 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 Senior Debt Security,
​
(6)
reduce the percentage in principal amount of the outstanding Senior Debt Securities 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 Senior Debt Security of that particular 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 Senior Debt Security of that particular series or tranche, or
​
(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 Senior Debt Securities of any series or tranche, without the consent of the registered owner of each outstanding Senior Debt Security affected by the modification.
​
 
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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 Senior Debt Securities, or that modifies the rights of the registered owners of Senior Debt Securities of that particular series or tranche with respect to that provision, will not affect the rights under the Indenture of the registered owners of the Senior 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 Senior 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 Senior Debt Securities, Senior Debt Securities owned by FPL or any other obligor upon the Senior Debt Securities or any affiliate of FPL or of that other obligor (unless FPL, that affiliate or that obligor owns all Senior Debt Securities outstanding under the Indenture, determined without regard to this provision), will be disregarded and deemed not to be outstanding. (Indenture, Section 101).
If FPL solicits any action under the Indenture from registered owners of Senior Debt Securities, FPL may, at its option, fix in advance a record date for determining the registered owners of Senior Debt Securities entitled to take that action, but FPL will not be obligated to do so. If FPL fixes such a record date, 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 Senior Debt Securities for the purposes of determining whether registered owners of the required proportion of the outstanding Senior Debt Securities have authorized that action. For these purposes, the outstanding Senior Debt Securities will be computed as of the record date. Any action of a registered owner of any Senior Debt Security under the Indenture will bind every future registered owner of that Senior Debt Security, or any Senior Debt Security replacing that Senior Debt Security, with respect to anything that the Indenture Trustee or FPL do, fail to do, or allow to be done in reliance on that action, whether or not that action is noted upon that Senior Debt Security. (Indenture, Section 104).
Resignation and Removal of Indenture Trustee.   The Indenture Trustee may resign at any time with respect to any series of Senior Debt Securities by giving written notice of its resignation to FPL. Also, the registered owners of a majority in principal amount of the outstanding Senior Debt Securities of one or more series of Senior Debt Securities may remove the Indenture Trustee at any time with respect to the Senior Debt Securities of that series, by delivering an instrument evidencing this action to the Indenture Trustee and FPL. 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 a trustee under the Indenture appointed by the registered owners of Senior 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 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 Senior Debt Securities will be sent by mail to the addresses of those registered owners as they appear in the security register for those Senior Debt Securities. (Indenture, Section 106).
Title.   FPL, the Indenture Trustee, and any agent of FPL or the Indenture Trustee, may treat the person in whose name a Senior Debt Security is registered as the absolute owner of that Senior Debt Security, whether or not that Senior 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 Senior Debt Securities 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. (Indenture, Section 112).
 
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DESCRIPTION OF SUBORDINATED DEBT SECURITIES
FPL may issue its subordinated debt securities, in one or more series, under one or more indentures between FPL and The Bank of New York Mellon, as trustee. The terms of any offered subordinated debt securities and the applicable indenture will be described in a prospectus supplement.
INFORMATION CONCERNING THE TRUSTEES
FPL and its affiliates, including NEE and NextEra Energy Capital Holdings, Inc., maintain various banking and trust relationships with Deutsche Bank Trust Company Americas. In addition, FPL, NEE and its subsidiaries, including NextEra Energy Capital Holdings, Inc., and various of their affiliates maintain various banking and trust relationships with The Bank of New York Mellon and its affiliates. The Bank of New York Mellon acts, or would act, as (i) Indenture Trustee, security registrar and paying agent under the Indenture described under “Description of Senior Debt Securities” above, (ii) as trustee under indentures for debt securities of NextEra Energy Capital Holdings, Inc. and NextEra Energy, Inc., (iii) as trustee under a guarantee agreement for NextEra Energy Capital Holdings, Inc. debt securities by NextEra Energy, Inc. and (iv) as purchase contract agent under NextEra Energy, Inc. purchase contract agreements.
PLAN OF DISTRIBUTION
FPL 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.
​
This prospectus may be used in connection with any offering of securities through any of these methods or other methods described in the applicable prospectus supplement.
Through Underwriters or Dealers.   If FPL 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 uses a dealer in the sale, FPL 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 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 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 from the sale of the Offered Securities, any initial public offering price and other terms of the offering of those Offered Securities.
FPL may authorize underwriters, dealers or agents to solicit offers by certain institutions to purchase the Offered Securities from FPL at the public offering price and on the terms described in the related
 
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prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future.
The Offered Securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms, which are referred to herein as the “remarketing firms,” acting as principals for their own accounts or as agent for FPL, as applicable. Any remarketing firm will be identified and the terms of its agreement, if any, with FPL, and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term is defined in the Securities Act of 1933, in connection with the securities remarketed thereby.
FPL may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by FPL or borrowed from any of them or others to settle those sales or to close out any related open borrowings of securities, and may use securities received from FPL in settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement.
FPL may have agreements to indemnify underwriters, dealers and agents against, or to contribute to payments which the underwriters, dealers and agents may be required to make in respect of, certain civil liabilities, including liabilities under the Securities Act of 1933.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from Florida Power & Light Company’s Annual Report on Form 10-K, and the effectiveness of Florida Power & Light Company and subsidiaries’ internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
LEGAL OPINIONS
Morgan, Lewis & Bockius LLP, New York, New York and Squire Patton Boggs (US) LLP, Miami, Florida, co-counsel to FPL, will pass upon the legality of the Offered Securities for FPL. Hunton Andrews Kurth LLP, New York, New York, will pass upon the legality of the Offered Securities for any underwriters, dealers or agents. Morgan, Lewis & Bockius LLP and Hunton Andrews Kurth LLP may rely as to all matters of Florida law upon the opinion of Squire Patton Boggs (US) LLP. Squire Patton Boggs (US) LLP may rely as to all matters of New York law upon the opinion of Morgan, Lewis & Bockius LLP.
​
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement or in any written communication from FPL specifying the final terms of a particular offering of securities. FPL has not authorized anyone else to provide you with additional or different information. FPL is not making an offer of these 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 or that the information incorporated by reference is accurate as of any date other than the date of the document incorporated by reference.
 
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUSES
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
​ ​ ​ $    * ​ ​
​
Legal and Accounting Fees
​ ​ ​ ​ ** ​ ​
​
Printing (S-3, prospectus, prospectus supplement, etc.)
​ ​ ​ ​ ** ​ ​
​
Fees of the Trustees
​ ​ ​ ​ ** ​ ​
​
Listing Fee
​ ​ ​ ​ *** ​ ​
​
Florida Taxes
​ ​ ​ ​ ** ​ ​
​
Rating Agencies’ Fees
​ ​ ​ ​ ** ​ ​
​
Miscellaneous
​ ​ ​ ​ ** ​ ​
​
Total
​ ​ ​ $        ** ​ ​
​
*
Under Rules 456(b) and 457(r) under the Securities Act of 1933, the SEC registration fee will be paid at the time of any particular offering of securities under this registration statement, and is therefore not currently determinable.
​
**
Because an unspecified amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of the securities are not currently determinable. Each prospectus supplement will reflect estimated expenses based on the amount of the related offering.
​
***
The listing fee is based upon the principal amount of securities listed, if any, and is therefore not currently determinable.
​
Item 15.   Indemnification of Directors and Officers.
Florida Statutes Section 607.0851 generally permits each of NextEra Energy, Inc., NextEra Energy Capital Holdings, Inc. and Florida Power & Light Company (each, a “Corporation”) to indemnify its directors and officers who are subject to any third-party actions because of their service to the Corporation 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 Corporation. If the proceeding is a criminal one, such person must also have had no reasonable cause to believe his or her conduct was unlawful. In addition, each Corporation may indemnify its directors and officers 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 Corporation. Florida Statutes Section 607.0852 provides that to the extent that a director or officer is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the individual was a party because he or she is or was a director or officer of the corporation, such person will be indemnified against expenses actually and reasonably incurred in connection therewith. Florida Statutes Sections 607.0858 and 607.0859 also permit each Corporation to further indemnify such persons by other means unless a judgment or other final adjudication establishes that such person’s actions or omissions were material to the cause of action and constitute (1) a crime (unless such person had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe it unlawful), (2) a transaction from which such person derived an improper personal benefit, (3), in the case of a director, an action in violation of Florida Statutes Section 607.0834 (liability for unlawful distributions) or (4) willful or intentional misconduct or a conscious disregard for the best interests of the Corporation in a proceeding by or in the right of such Corporation 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 corporation or any other person for any statement, vote, decision, or failure
 
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to act, as a director, unless (a) the director breached or failed to perform his or her 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 or her conduct was lawful or had no reasonable cause to believe his or her 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 the corporation to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the corporation, or willful or intentional misconduct or (v) in a proceeding by or in the right of someone other than the corporation 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.
Each Corporation’s bylaws provide generally that such Corporation shall, to the fullest extent permitted by law, indemnify all directors and officers of such Corporation, directors, officers, or other employees serving as a fiduciary of an employee benefit plan of such Corporation, as well as any employees or agents of such Corporation or other persons serving at the request of such Corporation in any capacity with any entity or enterprise other than such Corporation to whom such Corporation 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, NextEra Energy, Inc., on behalf of each Corporation, carries insurance permitted by the laws of Florida on behalf of directors or officers which may cover, among other things, liabilities under the Securities Act of 1933.
Item 16.   Exhibits.
​ 1(a) ​ ​
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​ 1(b) ​ ​
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​ 1(c) ​ ​
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​ 1(d) ​ ​
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​ *1(e) ​ ​
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​ 1(f) ​ ​
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​ *1(g) ​ ​
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​ 1(h) ​ ​
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​ +1(i) ​ ​
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Form of Distribution Agency Agreement, with respect to NextEra Energy, Inc.’s common stock.
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​ *4(a) ​ ​
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​ *4(b) ​ ​
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​ *4(c) ​ ​
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Articles of Incorporation of NextEra Energy Capital Holdings, Inc. dated July 31, 1985 (filed as Exhibit 3.1 to Registration Statement No. 33-6215).
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​ *4(d) ​ ​
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​ *4(e) ​ ​
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​ *4(f) ​ ​
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Bylaws of NextEra Energy Capital Holdings, Inc. dated January 4, 1988 (filed as Exhibit 4(b) to Registration Statement No. 33-69786).
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​ *4(g) ​ ​
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​ *4(h) ​ ​
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​ *4(i) ​ ​
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​ *4(j) ​ ​
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Mortgage and Deed of Trust dated as of January 1, 1944, as amended, between Florida Power & Light Company and Deutsche Bank Trust Company Americas, Trustee (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-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(o), File No. 333-102169; Exhibit 4(k) to Post-Effective Amendment No. 1 to Form S-3, File No. 333-102172; Exhibit 4(l) to Post-Effective Amendment No. 2 to Form S-3, File No. 333-102172; Exhibit 4(m) to Post-Effective Amendment No. 3 to Form S-3, File No. 333-102172; Exhibit 4(f) to Amendment No. 1 to Form S-3, File No. 333-125275; Exhibit 4(y) to Post-Effective Amendment No. 2 to Form S-3, File Nos. 333-116300, 333-116300-01 and 333-116300-02; Exhibit 4(z) to Post-Effective Amendment No. 3 to Form S-3, File Nos. 333-116300, 333-116300-01 and 333-116300-02; Exhibit 4(b) to Form 10-Q for the quarter ended March 31, 2006, File No. 2-27612; Exhibit 4(a) to Form 8-K dated April 17, 2007, File No. 2-27612; Exhibit 4 to Form 8-K dated January 16, 2008, File No. 2-27612; Exhibit 4(a) to Form 8-K dated March 17, 2009, File No. 2-27612; Exhibit 4 to Form 8-K dated February 9, 2010, File No. 2-27612; Exhibit 4 to Form 8-K dated
​
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​ ​ ​ ​
December 9, 2010, File No. 2-27612; Exhibit 4(a) to Form 8-K dated June 10, 2011, File No. 2-27612; Exhibit 4 to Form 8-K dated December 13, 2011, File No. 2-27612; Exhibit 4 to Form 8-K dated May 15, 2012, File No. 2-27612; Exhibit 4 to Form 8-K dated December 20, 2012, File No. 2-27612; Exhibit 4 to Form 8-K dated June 5, 2013, File No. 2-27612; Exhibit 4 to Form 8-K dated May 15, 2014, File No. 2-27612; Exhibit 4 to Form 8-K dated September 10, 2014, File No. 2-27612; Exhibit 4 to Form 8-K dated November 19, 2015, File No. 2-27612; Exhibit 4(b) to Form 10-K for the year ended December 31, 2017, File No. 2-27612; Exhibit 4(a) to Form 10-Q for the quarter ended March 31, 2018, File No. 2-27612; Exhibit 4(j), File Nos. 333-226056, 333-226056-01 and 333-226056-02; Exhibit 4(k), File Nos. 333-226056, 333-226056-01 and 333-226056-02; Exhibit 4(a) to Form 10-Q for the quarter ended March 31, 2019, File No. 2-27612; Exhibit 4(f) to Form 10-Q for the quarter ended September 30, 2019, File No. 2-27612; Exhibit 4(e) to Form 10-Q for the quarter ended March 31, 2020, File No. 2-27612; and Exhibit 4(b) to Form 10-K for the year ended December 31, 2020, File No. 2-27612.
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​ 4(k) ​ ​
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​ 4(l) ​ ​
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​ *4(n) ​ ​
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​ *4(x) ​ ​
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​ *4(y) ​ ​
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​ *4(z) ​ ​
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​ *4(ai) ​ ​
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​ *4(aj) ​ ​
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​ 4(ak) ​ ​
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​ 4(am) ​ ​
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​ *4(ao) ​ ​
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​ *4(ap) ​ ​
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​ *4(aq) ​ ​
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​ 4(ar) ​ ​
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​ *4(as) ​ ​
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​ *4(av) ​ ​
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​ *4(aw) ​ ​
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​ *4(ax) ​ ​
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​ *4(ay) ​ ​
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​ *4(bc) ​ ​
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​ *4(be) ​ ​
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​ *4(bn) ​ ​
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​ *4(br) ​ ​
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​ 4(bs) ​ ​
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​ *4(bt) ​ ​
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​ *4(bu) ​ ​
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​ *4(bv) ​ ​
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​ *4(bw) ​ ​
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​ *4(bx) ​ ​
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​ *4(by) ​ ​
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​ *4(bz) ​ ​
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​ 4(ca) ​ ​
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​ 4(cb) ​ ​
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​ *4(cc) ​ ​
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​ +4(cd) ​ ​
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Form of Deposit Agreement with respect to NextEra Energy, Inc.’s depositary shares.
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​ *4(ce) ​ ​
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​ *4(cf) ​ ​
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​ +4(cg) ​ ​
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Form of Deposit Agreement with respect to NextEra Energy Capital Holdings, Inc.’s depositary shares.
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​ +4(ch) ​ ​
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Form of NextEra Energy, Inc. Guarantee Agreement relating to NextEra Energy Capital Holdings, Inc.’s depositary shares.
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​ *4(ci) ​ ​
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​ +4(cj) ​ ​
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Form of Warrant Agreement (including the form of warrant) relating to NextEra Energy, Inc.’s warrants.
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​ +4(ck) ​ ​
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Form of Warrant Agreement (including the form of warrant) relating to Florida Power & Light Company’s warrants.
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​ 5(a) ​ ​
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​ 5(b) ​ ​
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​ 22 ​ ​
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​ 23(a) ​ ​
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​ 23(b) ​ ​
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Consent of Squire Patton Boggs (US) LLP (included in opinion, attached hereto as Exhibit 5(a)).
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​ 23(c) ​ ​
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Consent of Morgan, Lewis & Bockius LLP (included in opinion, attached hereto as Exhibit 5(b)).
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​ 24 ​ ​
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​ 25(a) ​ ​
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​ 25(f) ​ ​
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​ 25(g) ​ ​
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​ 25(h) ​ ​
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​ 25(i) ​ ​
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*
Incorporated herein by reference as indicated.
​
+
To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable.
​
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 of 1933,
(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
(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 subsections (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those subsections is contained in reports filed with or furnished to the SEC by the registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)   That, for the purpose of determining any liability under the Securities Act of 1933, 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.
 
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(4)   That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)   each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement, and
(ii)   each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof,
provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)   That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each of the undersigned registrants undertakes that in a primary offering of securities of such undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)   Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424,
(ii)   Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant,
(iii)   The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant, and
(iv)   Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)   That, for purposes of determining any liability under the Securities Act of 1933, each filing of each registrant’s annual report pursuant to Section 13(a) or Section 15(d) 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.
(7)   To file, if applicable, an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the provisions described under Item 15 of this registration statement, or otherwise, the registrants have been advised that in the opinion of
 
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the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by any 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 of 1933 and will be governed by the final adjudication of such issue.
 
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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, NextEra Energy, 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 Town of Juno Beach, State of Florida on the 23rd day of March, 2021.
NEXTERA ENERGY, INC.
By:
/s/ James L. Robo
​
​
James L. Robo
Chairman, President and Chief Executive Officer
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. Robo
​
James L. Robo
​ ​ Chairman, President and Chief Executive Officer (Principal Executive Officer) and Director ​ ​
March 23, 2021
​
​
/s/ Rebecca J. Kujawa
​
Rebecca J. Kujawa
​ ​ Executive Vice President, Finance and Chief Financial Officer (Principal Financial Officer) ​ ​
March 23, 2021
​
​
/s/ James M. May
​
James M. May
​ ​ Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) ​ ​
March 23, 2021
​
​
/s/ Sherry S. Barrat
​
Sherry S. Barrat
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ James L. Camaren
​
James L. Camaren
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Kenneth B. Dunn
​
Kenneth B. Dunn
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Naren K. Gursahaney
​
Naren K. Gursahaney
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Kirk S. Hachigian
​
Kirk S. Hachigian
​ ​ Director ​ ​
March 23, 2021
​
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/s/ Toni Jennings
​
Toni Jennings
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Amy B. Lane
​
Amy B. Lane
​ ​ Director ​ ​
March 23, 2021
​
 
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​
Signature
​ ​
Title
​ ​
Date
​
​
/s/ David L. Porges
​
David L. Porges
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Rudy E. Schupp
​
Rudy E. Schupp
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ John L. Skolds
​
John L. Skolds
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ William H. Swanson
​
William H. Swanson
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Lynn M. Utter
​
Lynn M. Utter
​ ​ Director ​ ​
March 23, 2021
​
​
/s/ Darryl L. Wilson
​
Darryl L. Wilson
​ ​ Director ​ ​
March 23, 2021
​
 
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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, NextEra Energy Capital Holdings, 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 Town of Juno Beach, State of Florida on the 23rd day of March, 2021.
NEXTERA ENERGY CAPITAL HOLDINGS, INC.
By:
/s/ James L. Robo
​
​
James L. Robo
Chairman of the Board, President and
Chief Executive Officer
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. Robo
​
James L. Robo
​ ​ Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) and Director ​ ​
March 23, 2021
​
​
/s/ Rebecca J. Kujawa
​
Rebecca J. Kujawa
​ ​ Senior Vice President, Finance and Chief Financial Officer (Principal Financial Officer) and Director ​ ​
March 23, 2021
​
​
/s/ James M. May
​
James M. May
​ ​ Controller and Chief Accounting Officer (Principal Accounting Officer) ​ ​
March 23, 2021
​
​
/s/ Paul I. Cutler
​
Paul I. Cutler
​ ​ Director ​ ​
March 23, 2021
​
 
TABLE OF CONTENTS
 
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, Florida Power & Light Company 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 Town of Juno Beach, State of Florida on the 23rd day of March, 2021.
FLORIDA POWER & LIGHT COMPANY
By:
/s/ Eric E. Silagy
​
​
Eric E. Silagy
President and Chief Executive Officer
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.
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Signature
​ ​
Title
​ ​
Date
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/s/ Eric E. Silagy
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Eric E. Silagy
​ ​ President and Chief Executive Officer (Principal Executive Officer) and Director ​ ​
March 23, 2021
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/s/ Rebecca J. Kujawa
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Rebecca J. Kujawa
​ ​ Executive Vice President, Finance and Chief Financial Officer (Principal Financial Officer) and Director ​ ​
March 23, 2021
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/s/ Keith Ferguson
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Keith Ferguson
​ ​ Controller (Principal Accounting Officer) ​ ​
March 23, 2021
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/s/ James L. Robo
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James L. Robo
​ ​ Director ​ ​
March 23, 2021
​
 

Exhibit 1(a)

 

[Name of Issuer]

[Name of Security]

 

 

 

UNDERWRITING AGREEMENT

 

 

 

[Date]

 

To the Representatives named in Schedule II
hereto, on behalf of the Underwriters
named in Schedule II hereto

 

Ladies and Gentlemen:

 

1.           Introductory. [1NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and a [wholly-owned] subsidiary of NextEra Energy, Inc., a Florida corporation (“NEE”), proposes to issue and sell its debt securities of the series designation[s], with the terms and in the principal amount[s] specified in Schedule I hereto (the “Debentures”). The Debentures will be [absolutely, irrevocably and unconditionally guaranteed by NEE pursuant to and in accordance with the terms of the Guarantee Agreement (as defined below)] [unconditionally and irrevocably guaranteed by NEE pursuant to and in accordance with the terms of the Indenture (as hereinafter defined)].] [2NextEra Energy, Inc., a Florida corporation (“NEE”), proposes to issue and sell its debt securities of the series designation[s], with the terms and in the principal amount[s] specified in Schedule I hereto (the “Debentures”).] [1Each of] NEE [1and NEE Capital] hereby confirms its agreement with the several Underwriters (as defined below) as set forth herein.

 

The term “Underwriters” as used herein shall be deemed to mean the entity or several entities named in Schedule II hereto and any underwriter substituted as provided in Section [6] hereof, and the term “Underwriter” shall be deemed to mean one of such Underwriters. If the entity or entities listed as a Representative in Schedule II hereto (the “Representatives”) are the same as the entity or entities listed as Underwriters in Schedule II hereto, then the terms “Underwriters” and “Representatives,” as used herein, shall each be deemed to refer to such entity or entities. The Representatives represent that they have been authorized by each Underwriter to enter into this agreement on behalf of such Underwriter and to act for it in the manner herein provided. All obligations of the Underwriters hereunder are several and not joint. If more than one entity is named as a Representative in Schedule II hereto, any action under or in respect of this agreement may be taken by such entities jointly as the Representatives or by one of the entities acting on behalf of the Representatives and such action will be binding upon all the Underwriters.

 

 
1 For use in connection with Debt Securities of NEE Capital

 

2 For use in connection with Debt Securities of NEE

 

 

2.           Description of Securities. [1The Debentures [of each series] will be a series of debentures issued by NEE Capital pursuant to the Indenture [(For Unsecured Debt Securities)] [(For Unsecured Subordinated Debt Securities)], dated as of [June 1, 1999] [September 1, 2006] [__________], between [__________] and The Bank of New York Mellon, as trustee (the “Trustee”), a copy of which Indenture has been heretofore delivered to the Representatives (together with any amendments or supplements thereto, the “Indenture”). The Debentures will be [absolutely, irrevocably and unconditionally] [unconditionally and irrevocably] guaranteed by NEE [pursuant to, and in accordance with, the terms of the Guarantee Agreement, dated as of June 1, 1999, between NEE, as Guarantor, and The Bank of New York Mellon, as Guarantee Trustee, a copy of which has been heretofore delivered to the Representatives (the “Guarantee Agreement”)] [on a subordinated basis by NEE, as set forth in the Indenture]. The term “Guarantee” as used in this agreement shall refer to the guarantee of NEE pursuant to the [Guarantee Agreement] [Indenture].] [2The Debentures [of each series] will be a series of debentures issued by NEE under an Indenture, dated as of __________, to [The Bank of New York Mellon], as Trustee, a copy of which has been heretofore delivered to the Representatives (together with any amendments or supplements thereto, the “Indenture”).]

 

3.            [1Representations and Warranties of NEE Capital. NEE Capital represents and warrants to the several Underwriters that:

 

(a)    NEE Capital has filed with the Securities and Exchange Commission (the “Commission”) a joint registration statement with NEE and Florida Power & Light Company, a Florida corporation (“FPL”), on Form S-3 (Registration Statement Nos. 333-______, 333-______-01 and 333-______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE Capital, threatened by the Commission. References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Debentures (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Debentures and (B) the first contract of sale of the Debentures), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to NEE and NEE Capital forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Debentures deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Debentures, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the Debentures that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Debentures and otherwise satisfies Section 10(a) of the Securities Act. The prospectus supplement relating to the Debentures proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section [6] hereof), NEE Capital may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or NEE may file a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Debentures.

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(b)   The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act (“Rule 405”)) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by NEE Capital and not removed; and with respect to the Debentures, NEE Capital is a “well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of the definition of “well-known seasoned issuer” in Rule 405 and is not an “ineligible issuer” (as defined in Rule 405).

 

(c)    The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of the date hereof and at the Closing Date, and the Registration Statement and the Indenture, at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended (the “1939 Act”), respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of the date hereof and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(c) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”) or to any statements or omissions made in the Registration Statement or the Prospectus relating to The Depository Trust Company (“DTC”) Book-Entry-Only System [or the book-entry only systems of Clearstream Banking, société anonyme (“Clearstream”), or Euroclear Bank SA/NV, as operator of the Euroclear System (“Euroclear”)], that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear].

3 

 

(d)    As of the Applicable Time (as defined below), the Pricing Disclosure Package (as defined below) did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(d) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus (as defined below), or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. References to the term “Pricing Disclosure Package” means the items listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act (“Rule 433”). References to the term “Applicable Time” means ____ [A.M./P.M.], New York City time, on [______] [the date hereof].

 

(e)    As of the Applicable Time, no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)     The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE Capital, and the fulfillment of the terms hereof on the part of NEE Capital to be fulfilled, have been duly authorized by all necessary corporate action of NEE Capital in accordance with the provisions of its Articles of Incorporation, as amended (the “NEE Capital Charter”), its Bylaws, as amended (the “NEE Capital Bylaws”), and applicable law, and the Debentures when issued and delivered by NEE Capital as provided herein will constitute valid and binding obligations of NEE Capital enforceable against NEE Capital in accordance with their terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought. The execution and delivery by NEE Capital of the Indenture did not require, and the execution and delivery by NEE Capital of this agreement and the Debentures and the performance by NEE Capital of its obligations under this agreement, the Debentures and the Indenture do not require, any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than those consents, approvals, authorizations, registrations or qualifications as have already been obtained and other than those required in connection or in compliance with the provisions of the blue sky laws of any jurisdiction.

4 

 

(g)   The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE Capital, the fulfillment of the terms hereof on the part of NEE Capital to be fulfilled, and the compliance by NEE Capital with all the terms and provisions of the Indenture and the Debentures will not result in a breach of any of the terms or provisions of, or constitute a default under, the NEE Capital Charter, the NEE Capital Bylaws or any indenture, mortgage, deed of trust or other agreement or instrument to which NEE Capital or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to NEE Capital or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over NEE Capital or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of NEE Capital and its subsidiaries taken as a whole.

 

(h)   NEE Capital or one or more of its direct or indirect subsidiaries owns all of the ownership interests in [insert names of significant subsidiaries] free and clear of all liens, encumbrances and adverse claims, except such as do not materially affect the value thereof and, in the case of any such significant subsidiary that is a limited partnership, except as may otherwise be provided in the applicable limited partnership agreement.

 

(i)     NEE Capital and each of its direct and indirect significant subsidiaries (as defined in Regulation S-X (17 CFR Part 210) (“Regulation S-X”)) has been duly organized, is validly existing and is in good standing under the laws of its respective jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which its respective ownership of properties or the conduct of its respective businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of NEE Capital and its subsidiaries taken as a whole, and has the power and authority as a corporation or other entity necessary to own or hold its respective properties and to conduct the businesses in which it is engaged.

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(j)     The Debentures will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(k)   The Indenture (i) has been duly authorized by NEE Capital by all necessary corporate action, [has been duly] [and, when] executed and delivered by NEE Capital, [and is] [will be] a valid and binding instrument enforceable against NEE Capital in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(l)     NEE Capital is not, and after giving effect to the offering and sale of the Debentures and the application of the proceeds from the sale of the Debentures as described in the Pricing Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (“1940 Act”).

 

(m)   Except as described in the Pricing Disclosure Package and the Prospectus, NEE Capital or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of NEE Capital and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on NEE Capital and its subsidiaries taken as a whole.]

 

4.            Representations and Warranties of NEE. NEE represents and warrants to the several Underwriters that:

 

(a)    [2NEE has filed with the Securities and Exchange Commission (the “Commission”), together with NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and Florida Power & Light Company, a Florida corporation (“FPL”), a joint registration statement on Form S-3, including a prospectus (Registration Statement Nos. 333-_______, 333-______-01 and 333-_______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”),] [1NEE has filed with the Commission, together with NEE Capital and FPL, Registration Statement No. 333-______ for the registration under the Securities Act,] of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE, threatened by the Commission. [2References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Debentures (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Debentures and (B) the first contract of sale of the Debentures), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to NEE and NEE Capital forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Debentures deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Debentures, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the __________ that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Debentures and otherwise satisfies Section 10(a) of the Securities Act.] The prospectus supplement relating to the Debentures proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section [6] hereof), NEE may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Debentures.

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(b)   The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by NEE and not removed; and NEE is a “well-known seasoned issuer” and is not an “ineligible issuer” (in each case as defined in Rule 405).

 

(c)    The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of the date hereof and at the Closing Date, and the Registration Statement [1and the [Guarantee Agreement] [Indenture]] [2and the Indenture], at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the [11939 Act] [2Trust Indenture Act of 1939, as amended (the “1939 Act”)], respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of the date hereof and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section [4(c)] shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE [1or NEE Capital] by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility [2on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”)] or to any statements or omissions made in the Registration Statement or the Prospectus relating to [2The Depository Trust Company (“DTC”)] [1the DTC] Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]; and the Incorporated Documents, when filed with the Commission, fully complied or will fully comply in all material respects with the applicable provisions of the [2Securities] Exchange Act [2of 1934, as amended (the “Exchange Act”),] and the applicable instructions, rules and regulations of the Commission thereunder.

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(d)   As of the Applicable Time [2(as defined below)], the Pricing Disclosure Package [2(as defined below)] did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section [4(d)] shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE [1or NEE Capital] by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus [2(as defined below)], or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. [2References to the term “Pricing Disclosure Package” means the documents listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433. References to the term “Applicable Time” means ____ [A.M./P.M.], New York City time, on [______] [the date hereof].

 

(e)    As of the Applicable Time, no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

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(f)    The financial statements included as part of or incorporated by reference in the Pricing Disclosure Package, the Prospectus and the Registration Statement present fairly the consolidated financial condition and results of operations of NEE and its subsidiaries taken as a whole at the respective dates or for the respective periods to which they apply; such financial statements have been prepared in each case in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as otherwise indicated in the Pricing Disclosure Package, the Prospectus and the Registration Statement; and Deloitte & Touche LLP, who has audited the audited financial statements of NEE, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder.

 

(g)   Except as reflected in or contemplated by the Pricing Disclosure Package, since the respective most recent times as of which information is given in the Pricing Disclosure Package, there has not been any material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole, whether or not in the ordinary course of business, nor has any transaction been entered into by NEE or any of its subsidiaries that is material to NEE and its subsidiaries taken as a whole, other than changes and transactions contemplated by the Pricing Disclosure Package and transactions in the ordinary course of business. NEE and its subsidiaries have no contingent obligation material to NEE and its subsidiaries taken as a whole, which is not disclosed in or contemplated by the Pricing Disclosure Package.

 

(h)   The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE, and the fulfillment of the terms hereof on the part of NEE to be fulfilled, have been duly authorized by all necessary corporate action of NEE in accordance with the provisions of its Restated Articles of Incorporation (the “NEE Charter”), its Amended and Restated Bylaws, as amended (the “NEE Bylaws”), and applicable law. The execution and delivery by NEE of the [1[Guarantee Agreement] [Indenture]] [2Indenture] did not require, and the [execution and delivery by NEE of this agreement and the] performance by NEE of its obligations under this agreement and under the Guarantee Agreement with respect to the Debentures do not require, any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than those consents, approvals, authorizations, registrations or qualifications as have already been obtained and other than those required in connection or in compliance with the provisions of the blue sky laws of any jurisdiction.

 

(i)   The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE, the fulfillment of the terms hereof on the part of NEE to be fulfilled, and the compliance by NEE with all the terms and provisions of the [1[Guarantee Agreement with respect to the Debentures] [Indenture applicable to it]] [2Indenture] will not result in a breach of any of the terms or provisions of, or constitute a default under, the NEE Charter or the NEE Bylaws, or any indenture, mortgage, deed of trust or other agreement or instrument to which NEE or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to NEE or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over NEE or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of NEE and its subsidiaries taken as a whole.

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(j)     NEE or one or more of its direct or indirect subsidiaries owns all of the common stock (with respect to those subsidiaries which are organized as corporations) or other ownership interests (with respect to those subsidiaries which are organized as limited liability companies or limited partnerships) in NEE’s direct or indirect significant subsidiaries (as defined in Regulation S-X [2(17 CFR Part 210) (“Regulation S-X”)]) free and clear of all liens, encumbrances and adverse claims, except such as do not materially affect the value thereof and, in the case of any such significant subsidiary that is a limited partnership, except as may otherwise be provided in the applicable limited partnership agreement. NEE’s direct and indirect significant subsidiaries (as defined in Regulation S-X) are [insert names of significant subsidiaries].

 

(k)   NEE and each of its direct and indirect significant subsidiaries (as defined in Regulation S-X) has been duly organized, is validly existing and is in good standing under the laws of its respective jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which its respective ownership of properties or the conduct of its respective businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of NEE and its subsidiaries taken as a whole, and has the power and authority as a corporation or other entity necessary to own or hold its respective properties and to conduct the businesses in which it is engaged.

 

(l)     The [1[Guarantee Agreement] [Indenture]] [2Indenture] (i) has been duly authorized by NEE by all necessary corporate action, [and when] [has been] duly executed and delivered by NEE [and is] [will be] a valid and binding instrument enforceable against NEE in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(m) [2The Debentures will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.]

 

(n)   NEE is not, and after giving effect to the offering and sale of the Debentures and the application of the proceeds from the sale of the Debentures as described in the Pricing Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the [11940 Act] [2Investment Company Act of 1940, as amended.

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(o)   Except as described in the Pricing Disclosure Package and the Prospectus, NEE or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of NEE and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on NEE and its subsidiaries taken as a whole.

 

(p)   The interactive data in eXtensible Business Reporting Language filed as exhibits to NEE’s Form 10-K for the year ended ______ [and Form 10-Q[s] for the quarter[s] ended ______, ______ and ______] fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

5.           Purchase and Sale. Subject to the terms and conditions in this agreement (including the representations and warranties herein contained), NEE [1and NEE Capital agree] [2agrees] to sell to the respective Underwriters named in Schedule II hereto, severally and not jointly, and the respective Underwriters agree, severally and not jointly, to purchase from NEE [1and NEE Capital] for an aggregate purchase price of $__________, the respective principal amount of the Debentures set forth opposite their respective names in Schedule II hereto.

 

The Underwriters agree to make a bona fide public offering of the Debentures as set forth in the Pricing Disclosure Package, such public offering to be made as soon after the execution of this agreement as practicable, subject, however, to the terms and conditions of this agreement. The Underwriters have advised [1NEE Capital] [2NEE] that the Debentures will be offered to the public at the amount per Debenture [of each series] as set forth in Schedule I hereto as the Price to Public for the Debentures [of each series] and to certain dealers selected by the Representatives at a price which represents a concession. Such dealers’ concession may not be in excess of [$___] [_____% of the principal amount] per Debenture [of each series].

 

Each Underwriter agrees that (i) no information that is presented by it to investors has been or will be inconsistent with the information contained in the Pricing Disclosure Package as it may then be amended or supplemented and (ii) it will make no offer that would constitute a Free Writing Prospectus that is required to be filed by NEE [1or NEE Capital] pursuant to Rule 433 other than an Issuer Free Writing Prospectus in accordance with Section [7(h)] hereof. References to the term “Free Writing Prospectus” means a free writing prospectus as defined in Rule 405.

 

6.           Time, Date and Place of Closing, Default of the Underwriters. Delivery of the Debentures [of each series] and payment therefor by wire transfer in federal funds shall be made at 9:00 A.M., New York City time, on the settlement date set forth on Schedule I, at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, or at such other time, date or place as may be agreed upon in writing by [2NEE[,]] [1NEE Capital] and the Representatives. The time and date of such delivery and payment are herein called the “Closing Date.”

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The Debentures will be issued in the form of one or more global certificates in fully registered form. The Debentures shall be delivered to the Representatives for the respective accounts of the Underwriters against payment by the several Underwriters through the Representatives of the purchase price therefor. Delivery of the Debentures shall be made through the facilities of DTC unless [1NEE Capital] [2NEE] and the Representatives shall otherwise agree. For the purpose of expediting the checking of the Debentures by the Representatives on behalf of the Underwriters, [1NEE Capital] [2NEE] (if delivery of the Debentures shall be made otherwise than through the facilities of DTC) agrees to make such Debentures available to the Representatives for such purpose at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, not later than 2:00 P.M., New York City time, on the business day preceding the Closing Date, or at such other time, date or place as may be agreed upon by [1NEE Capital] [2NEE] and the Representatives.

 

If any Underwriter shall fail to purchase and pay for the principal amount of the Debentures [of each series] which such Underwriter has agreed to purchase and pay for hereunder (otherwise than by reason of any failure on the part of NEE [1or NEE Capital] to comply with any of the provisions contained herein), the non-defaulting Underwriters shall be obligated to purchase and pay for (in addition to the respective principal amount of the Debentures [of each series] set forth opposite their respective names in Schedule II hereto) the principal amount of the Debentures [of each series] which such defaulting Underwriter or Underwriters failed to purchase and pay for, up to a principal amount thereof equal to, in the case of each such remaining Underwriter, ten percent (10%) of the aggregate principal amount of the Debentures [of the series as to which there is a default and] which are set forth opposite the name of each such remaining Underwriter in said Schedule II, and such remaining Underwriters shall have the right, within 24 hours of receipt of such notice, either to (i) purchase and pay for (in such proportion as may be agreed upon among them) the remaining principal amount of the Debentures [of each series] which the defaulting Underwriter or Underwriters agreed but failed to purchase, or (ii) substitute another Underwriter or Underwriters, satisfactory to [1NEE Capital and NEE] [2NEE], to purchase and pay for the remaining principal amount of the Debentures [of each series] which the defaulting Underwriter or Underwriters agreed but failed to purchase. If any of the Debentures would still remain unpurchased, then [1NEE Capital] [2NEE] shall be entitled to a further period of 24 hours within which to procure another party or other parties that (i) are members of the Financial Industry Regulatory Authority, Inc. or else are not eligible for membership in said Authority but who agree (A) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (B) in making sales to comply with said Authority’s Conduct Rules, and (ii) are satisfactory to the Representatives to purchase such Debentures on the terms herein set forth. In the event that, within the respective prescribed periods, (i) the non-defaulting Underwriters notify [1NEE Capital] [2NEE] that they have arranged for the purchase of such Debentures or (ii) [1NEE Capital] [2NEE] notifies the non-defaulting Underwriters that it has arranged for the purchase of such Debentures, the non-defaulting Underwriters or [1NEE Capital] [2NEE] shall have the right to postpone the Closing Date for a period of not more than three full business days beyond the expiration of the respective prescribed periods in order to effect whatever changes may thus be made necessary in the Registration Statement, the Prospectus or in any other documents or arrangements. In the event that neither the non-defaulting Underwriters nor [1NEE Capital] [2NEE] has arranged for the purchase of such Debentures by another party or parties as above provided, then this agreement shall terminate without any liability on the part of NEE [1or NEE Capital] or any Underwriter (other than an Underwriter which shall have failed or refused, otherwise than for some reason sufficient to justify, in accordance with the terms hereof, the cancellation or termination of its obligations hereunder, to purchase and pay for the Debentures which such Underwriter has agreed to purchase as provided in Section [5] hereof), except as otherwise provided in Section [7(d]), Section [7(f)] and Section [10] hereof.

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7.            Covenants of NEE [1and NEE Capital]. NEE [1and NEE Capital agree] [2agrees] with the several Underwriters that:

 

(a)    NEE [1and NEE Capital] will timely file the Prospectus and any preliminary prospectus supplement used in connection with the offering of the Debentures with the Commission pursuant to Rule 424. NEE [1and NEE Capital] have complied and will comply with Rule 433 in connection with the offering and sale of the Debentures, including applicable provisions in respect of timely filing with the Commission, legending and record-keeping.

 

(b)   NEE [1and NEE Capital] will prepare a final term sheet, containing a description of the pricing terms of the Debentures, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433.

 

(c)    [1NEE Capital] [2NEE] will, upon request, deliver to the Representatives and to Counsel for the Underwriters (as defined below) one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of [1NEE Capital] [2NEE] to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Debentures, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date hereof, [1NEE Capital] [2NEE] will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus and any Issuer Free Writing Prospectus as the Representatives may reasonably request for the purposes contemplated by the Securities Act.

 

(d)   [1NEE Capital] [2NEE] has paid or caused to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus supplement, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Debentures as provided in Section [6] hereof, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus [1the Guarantee Agreement] and the Indenture. [1NEE Capital] [2NEE] will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Debentures. [1NEE Capital] [2NEE] shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters (other than in accordance with the provisions of Section [10] hereof), except that if this agreement shall be terminated in accordance with the provisions of [Section 8], [Section 9] or [Section 11] hereof, [1NEE Capital] [2NEE] will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and [1NEE Capital] [2NEE] shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. [1Neither] NEE [1nor NEE Capital] shall [2not] in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.

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(e)    During a period of nine months after the date hereof, if any event relating to or affecting NEE [1or NEE Capital] shall occur which, in the opinion of NEE [1or NEE Capital], should be set forth in a supplement to or an amendment to the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus, in the light of the circumstances pertaining when it is delivered to a purchaser, not misleading, [1NEE Capital] [2NEE] will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend the Prospectus so that as supplemented or amended it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances pertaining when the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date hereof, [1NEE Capital] [2NEE] upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.

 

(f)    NEE and [1NEE Capital] will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Debentures for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that [1neither] NEE [1nor NEE Capital] shall [2not] be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet other requirements deemed by NEE [1or NEE Capital] to be unduly burdensome.

 

(g)   NEE will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders (including holders of the Debentures) as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act. 

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 (h)   Prior to the termination of the offering of the Debentures, [1neither] NEE [1nor NEE Capital] will [2not] file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton Andrews Kurth LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. [1Neither] NEE [1nor NEE Capital have] [2has not] made any offer relating to the Debentures that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by NEE [1or NEE Capital] with the Commission or retained by NEE [1or NEE Capital] pursuant to Rule 433, other than a pricing term sheet substantially in the form as set forth on Schedule I, and [1neither] NEE [1nor NEE Capital] will [2not] make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters.

 

(i)     NEE [1and NEE Capital] will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Debentures, of official notice of the institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.

 

(j)     If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then pertaining, not misleading, NEE [1or NEE Capital] promptly will notify the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.

 

8.           Conditions of Underwriters’ Obligations to Purchase and Pay for the Debentures. The several obligations of the Underwriters to purchase and pay for the Debentures shall be subject to the performance by NEE [1and NEE Capital] of [1their respective] [2its] obligations to be performed hereunder on or prior to the Closing Date and to the following conditions:

 

(a)    The [1respective] representations and warranties made by NEE [1and NEE Capital] herein and qualified by materiality shall be true and correct in all respects and the [1respective] representations and warranties made by NEE [1and NEE Capital] herein that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date, in each case, as if made on and as of such date and the Representatives shall have received, prior to payment for the Debentures, a certificate from [1each of] NEE [1and NEE Capital] dated the Closing Date and signed by an officer of NEE [1and NEE Capital, as the case may be,] to that effect.

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(b)   No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by NEE [1or NEE Capital] and not removed by the Closing Date; and the Representatives shall have received, prior to payment for the Debentures, a certificate from [1each of] NEE [1and NEE Capital] dated the Closing Date and signed by an officer of NEE [1and NEE Capital, as the case may be,] to the effect that, to the best of his or her knowledge, no such orders are in effect, no proceedings for either such purpose are pending before, or to the knowledge of NEE [1or NEE Capital, as the case may be,] threatened by, the Commission, and no such notice of objection has been received and not removed.

 

(c)   On the Closing Date, the Representatives shall have received from Squire Patton Boggs (US) LLP, counsel to NEE [1and NEE Capital], Morgan, Lewis & Bockius LLP, counsel to NEE [1and NEE Capital], and Hunton Andrews Kurth LLP, Counsel for the Underwriters, opinions (with a copy for each of the Underwriters) in substantially the form and substance prescribed in Schedule IV, Schedule V, and Schedule VI hereto (i) with such changes therein as may be agreed upon by NEE [1, NEE Capital] and the Representatives, with the approval of Counsel for the Underwriters, and (ii) if the Prospectus relating to the Debentures shall be supplemented or amended after the Prospectus shall have been filed with the Commission pursuant to Rule 424, with any changes therein necessary to reflect such supplementation or amendment.

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(d)   On the date hereof and on the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters (which may refer to letters previously delivered to the Representatives) (with copies thereof for each of the Underwriters) dated the respective dates of delivery thereof to the effect that (i) they are an independent registered public accounting firm with respect to NEE within the meaning of the Securities Act and the Exchange Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the consolidated financial statements of NEE audited by them and incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder; (iii) on the basis of performing a review of interim financial information as described in the Public Company Accounting Oversight Board (United States) (“PCAOB”) AS 4105, Reviews of Interim Financial Information, on the unaudited [condensed] consolidated financial statements of NEE, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, a reading of the latest available interim unaudited [condensed] consolidated financial statements of NEE, if any, since the close of NEE’s most recent audited fiscal year, a reading of the minutes and consents of the Board of Directors, the Audit Committee of the Board of Directors and the Finance & Investment Committee of the Board of Directors and of the shareholders of NEE [1and the minutes and consents of the Board of Directors and of the shareholder of NEE Capital] since the end of the most recent audited fiscal year, and inquiries of officials of NEE who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Underwriters’ purposes), nothing has come to their attention which caused them to believe that (a) the unaudited [condensed] consolidated financial statements of NEE, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, (1) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder and (2) except as disclosed in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements of NEE incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable; (b) at the date of the latest available interim balance sheet read by them and at a specified date not more than five days prior to the date of such letter, there was any change in the capital stock or increase in long-term debt including current maturities and excluding fair value swaps, if any, and unamortized premium and discount on long-term debt of NEE and its subsidiaries, or decrease in common shareholders’ equity of NEE and its subsidiaries, in each case as compared with amounts shown in the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, except in all instances for changes, increases or decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or as occasioned by the declaration, provision for, or payment of dividends, or as occasioned by the issuance, forfeiture or acquisition of common stock pursuant to or in connection with any employee or director benefit or compensation plan or the dividend reinvestment and direct stock purchase plan or which are described in such letter; or (c) for the period from the date of the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, to the latest available interim balance sheet read by them and for the period from the date of the latest available interim balance sheet read by them to a specified date not more than five days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated operating revenues or in net income, except in all instances for decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or which are described in such letter; and (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to certain amounts included in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, and such items as the Representatives may reasonably request.

 

(e)    Since the respective most recent times as of which information is given in the Pricing Disclosure Package, and up to the Closing Date, (i) there shall have been no material adverse change in the business, properties or financial condition of [1(a) NEE Capital and its subsidiaries taken as a whole or (b)] NEE and its subsidiaries taken as a whole, except [1in each case] as disclosed in or contemplated by the Pricing Disclosure Package, and (ii) there shall have been no transaction entered into by [1(a) NEE Capital or any of its subsidiaries that is material to NEE Capital and its subsidiaries taken as a whole or (b)] NEE or any of its subsidiaries that is material to NEE and its subsidiaries taken as a whole, [1in each case] other than transactions disclosed in or contemplated by the Pricing Disclosure Package, and transactions in the ordinary course of business; and at the Closing Date, the Representatives shall have received a certificate to such effect from [1each of NEE Capital and] NEE signed by an officer of [2NEE Capital or] NEE[1, as the case may be].

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(f)    All legal proceedings to be taken in connection with the issuance and sale of the Debentures shall have been satisfactory in form and substance to Counsel for the Underwriters.

 

In case any of the conditions specified above in this Section [8] shall not have been fulfilled, this agreement may be terminated by the Representatives upon mailing or delivering written notice thereof to NEE [1and NEE Capital]. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section 7[(d)] and Section [7(f)] hereof.

 

9.           Condition of NEE’s [1and NEE Capital’s] Obligations. The obligation of [1NEE Capital] [2NEE] to deliver the Debentures [1and the obligation of NEE to deliver the Guarantee] shall be subject to the following condition:

 

(a)    No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by NEE [1or NEE Capital] and not removed by the Closing Date.

 

In case the condition specified above in this Section [9] shall not have been fulfilled, this agreement may be terminated by NEE [1and NEE Capital] upon mailing or delivering written notice thereof to the Representatives. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section [7(d)] and Section [7(f)] hereof.

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10.          Indemnification.

 

(a)    NEE [1and NEE Capital, jointly and severally, agree] [2agrees] to indemnify and hold harmless each Underwriter, each officer and director of each Underwriter and each person (a “Controlling Person”) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each such Underwriter, officer, director and Controlling Person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, including all Incorporated Documents, or in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this Section [10(a)] shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished in writing, to NEE [1or NEE Capital] by or on behalf of any Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof, or arising out of, or based upon, statements in or omissions from the Statements of Eligibility; and provided, further, that the indemnity agreement contained in this Section [10(a)] in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall not inure to the benefit of any Underwriter (or of any officer or director or Controlling Person of such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of the Debentures [of any series] to any person in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may be then supplemented or amended, furnished by such Underwriter to a person to whom any of the Debentures were sold (excluding in all cases, however, any document then incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement made in or omission from such preliminary prospectus supplement, Pricing Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a supplement or amendment to such preliminary prospectus supplement, Pricing Prospectus, Prospectus, or Issuer Free Writing Prospectus (excluding in all cases, however, any document then incorporated by reference therein) (i) is furnished on a timely basis by NEE [1or NEE Capital] to the Underwriter, (ii) is required by law or regulation to have been conveyed to such person by or on behalf of such Underwriter, at or prior to the entry into the contract of sale of the Debentures with such person, but was not so conveyed (which conveyance may be oral or written) by or on behalf of such Underwriter and (iii) would have cured the defect giving rise to such loss, claim, damage or liability. The indemnity agreement of NEE [1and NEE Capital] contained in this Section [10(a)] and the representations and warranties of NEE [1and NEE Capital] contained in [1Section 3 and Section 4] [2Section 3] hereof, [1respectively,] shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any of its officers, directors or Controlling Persons and shall survive the delivery of the Debentures [of each series]. Each Underwriter agrees promptly to notify [1each of] NEE [1and NEE Capital], and each other Underwriter, of the commencement of any litigation or proceedings against the notifying Underwriter, or any of its officers, directors or Controlling Persons in connection with the issuance and sale of the Debentures [of any series].

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(b)   Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless [1each of] NEE [1and NEE Capital], [1their respective] [2its] officers and directors, and each person who controls NEE [1or NEE Capital, as the case may be,] within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and to reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon and in conformity with information furnished in writing to NEE [1or NEE Capital] by or on behalf of such Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus, or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof. The Underwriters hereby furnish to NEE [1and NEE Capital] in writing, expressly for use in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus, the following: [insert information provided by the Underwriters]. NEE [1and NEE Capital each acknowledge] [2acknowledges] that the statements identified in the preceding [____] sentence[s] constitute the only information furnished in writing by or on behalf of the several Underwriters expressly for inclusion in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus. The respective indemnity agreement of each Underwriter contained in this Section [10(b)] shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of NEE [1or NEE Capital] or any of [1their respective] [2its] officers or directors or any person who controls NEE [1or NEE Capital] within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of any other Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Debentures [of each series]. NEE [1and NEE Capital agree] [2agrees] promptly to notify the Representatives of the commencement of any litigation or proceedings against NEE [1, NEE Capital] (or any of their respective controlling persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) or any of [1their respective] [2its] officers or directors in connection with the issuance and sale of the Debentures [of any series].

20 

 

(c)    NEE [1, NEE Capital] and each of the several Underwriters each agree that, upon the receipt of notice of the commencement of any action against it, its officers and directors, or any person controlling it as aforesaid, in respect of which indemnity or contribution may be sought under the provisions of this Section [10], it will promptly give written notice of the commencement thereof to the party or parties against whom indemnity or contribution shall be sought thereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party otherwise than on account of this indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall elect not to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and counsel for the indemnifying party shall have reasonably concluded that there may be a conflict of interest involved in the representation by such counsel of both the indemnifying party and the indemnified party, the indemnified party or parties shall have the right to select separate counsel, satisfactory to the indemnifying party or parties, to participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party or parties (it being understood, however, that the indemnifying party or parties shall not be liable for the expenses of more than one separate counsel representing the indemnified parties who are parties to such action). NEE [1, NEE Capital] and each of the several Underwriters each agree that without the prior written consent of the other parties to such action who are parties to this agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section [10], unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

21 

 

(d)   If, or to the extent, the indemnification provided for in Section [10(a)] or Section [10(b)] hereof shall be unenforceable under applicable law by an indemnified party, each indemnifying party agrees to contribute to such indemnified party with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in Section [10(a)] or Section [10(b)] hereof shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of NEE [1and NEE Capital] on the one hand and the Underwriters on the other hand in connection with the statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by NEE [1and NEE Capital] on the one hand and the Underwriters on the other hand from the offering of the Debentures pursuant to this agreement, and (iii) any other relevant equitable considerations; provided, however, that no indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any indemnifying party not guilty of such fraudulent misrepresentation. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by NEE [1and NEE Capital] or the Underwriters and each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. NEE [1, NEE Capital] and each of the Underwriters each agree that it would not be just and equitable if contribution pursuant to this Section [10(d)] were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section [10(d)], no Underwriter shall be required to contribute in excess of the amount equal to the excess of (i) the total price at which the Debentures underwritten by it were offered to the public, over (ii) the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Underwriter to contribute pursuant to this Section [10(d)] are several and not joint and shall be in the same proportion as such Underwriter’s obligation to underwrite the Debentures [of the series with respect to which contribution is sought] is to the total principal amount of the Debentures [of such series] set forth in Schedule II hereto.

 

11.         Termination. This agreement may be terminated by the Representatives by delivering written notice thereof to NEE [1and NEE Capital], at any time prior to the Closing Date, if after the date hereof and at or prior to the Closing Date:

 

(a)    (i) there shall have occurred any general suspension of trading in securities on The New York Stock Exchange LLC (the “NYSE”) or there shall have been established by the NYSE or by the Commission or by any federal or state agency or by the decision of any court any limitation on prices for such trading or any general restrictions on the distribution of securities, or trading in any securities of NEE [1or NEE Capital] shall have been suspended or limited by any exchange located in the United States or on the over-the-counter market located in the United States or a general banking moratorium declared by New York or federal authorities or (ii) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities, including, but not limited to, an escalation of hostilities which existed prior to the date hereof, any other national or international calamity or crisis or any material adverse change in financial, political or economic conditions affecting the United States, the effect of any such event specified in this clause (ii) being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Debentures [of any series] as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Debentures [of any series]; or

22 

 

(b)   (i) there shall have been any downgrading or any notice of any intended or potential downgrading in the ratings accorded to the Debentures [of any series] or any securities of [1NEE Capital] [2NEE] which are of the same class as the Debentures by either [Moody’s Investors Service, Inc. (“Moody’s”)] or [S&P Global Ratings, a division of S&P Global Inc. (“S&P”)], or (ii) either [Moody’s] or [S&P] shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Debentures [of any series] or any securities of [1NEE Capital] [2NEE] which are of the same class as the Debentures [of any series], the effect of any such event specified in (i) or (ii) above being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Debentures [of any series] as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Debentures [of any series].

 

This agreement may also be terminated at any time prior to the Closing Date if in the judgment of the Representatives the subject matter of any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus prepared and furnished by NEE [1and NEE Capital] after the date hereof reflects a material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole [1or NEE Capital and its subsidiaries taken as a whole] which renders it either inadvisable to proceed with such offering, if any, or inadvisable to proceed with the delivery of the Debentures [of any series] to be purchased hereunder. Any termination of this agreement pursuant to this Section [11] shall be without liability of any party to any other party except as otherwise provided in Section [7(d)] and Section [7(f)] hereof.

 

12.          Miscellaneous.

 

(a)   The validity and interpretation of this agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles thereunder. This agreement shall inure to the benefit of, and be binding upon, NEE [1, NEE Capital], the several Underwriters and, with respect to the provisions of Section [10] hereof, each officer, director or controlling person referred to in said Section [10], and their respective successors. Nothing in this agreement is intended or shall be construed to give to any other person or entity any legal or equitable right, remedy or claim under or in respect of this agreement or any provision herein contained. The term “successors” as used in this agreement shall not include any purchaser, as such purchaser, of any Debentures from any of the several Underwriters.

 

(b)   NEE [1and NEE Capital each acknowledge and agree] [2acknowledges and agrees] that the Underwriters are acting solely in the capacity of arm’s length contractual counterparties to NEE [1and NEE Capital] with respect to the offering of the Debentures as contemplated by this agreement and not as financial advisors or fiduciaries to NEE [1or NEE Capital] in connection herewith. Additionally, none of the Underwriters is advising NEE [1or NEE Capital] as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction in connection with the offering of the Debentures as contemplated by this agreement. Any review by the Underwriters of NEE [1and NEE Capital] in connection with the offering of the Debentures contemplated by this agreement and the transactions contemplated by this agreement will not be performed on behalf of NEE [1and NEE Capital].

23 

 

13.         Notices. All communications hereunder shall be in writing and, if to the Underwriters, shall be mailed or delivered to the Representatives at the address set forth in Schedule II hereto, or, if to NEE [1or NEE Capital], shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.

 

14.         Counterparts. This agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

15.          Recognition of the U.S. Special Resolution Regimes.

 

(a)    In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this agreement, and any interest and obligation in or under this agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)   In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this agreement were governed by the laws of the United States or a state of the United States.

 

(c)    For purpose of this Section [15], (A) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) the term “Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) the term “U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

24 

 

If the foregoing correctly sets forth our understanding, please indicate your acceptance on behalf of the Underwriters in the space provided below for that purpose, whereupon this letter and your acceptance on behalf of the Underwriters shall constitute a binding agreement between [NEE][, NEE Capital] and the Underwriters.

 

  Very truly yours,
   
  NextEra Energy, Inc.
   
  By:   
    Name:
    Title:
   
  [1NextEra Energy Capital Holdings, Inc.
   
  By:  
    Name:
    Title:]
     
Accepted and delivered as of  
the date first above written by the  
Representatives on behalf of the Underwriters:
       
   
   
By:     
  Name:  
  Title:  

25 

 

SCHEDULE I

 

[Name of Issuer]

 

Pricing Term Sheet

 

[Date]

 

Issuer:

 

Designation: 

Registration Format:

Principal Amount:

Date of Maturity:

Interest Payment Dates:

Coupon Rate:

Price to Public:

[Benchmark Treasury:

Benchmark Treasury Yield:

Spread to Benchmark

Treasury Yield:

Reoffer Yield:]

Redemption:

Trade Date:

Settlement Date:

CUSIP/ ISIN Number:

[Other Terms] 

Expected Credit Ratings:* 

Underwriters:

___________

*A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.

 

The terms “___________” and “__________” have the meanings ascribed to those terms in the Issuer’s Preliminary Prospectus Supplement, dated ___________.

 

The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling __________ toll-free at __________ or __________ toll-free at __________.

 

 

SCHEDULE II

 

Representatives   Addresses
   
     
     
     
     
     
Underwriters   Principal Amount
     
     
     
     
     
     
     
     
     
     
     
     
     
Total  

 

 

SCHEDULE III

 

PRICING DISCLOSURE PACKAGE

 

(1)      Base Prospectus, dated ________________

 

(2)      Preliminary Prospectus Supplement, dated _______________ (which shall be deemed to include the Incorporated Documents filed at or prior to the Applicable Time to the extent not superseded by Incorporated Documents filed at or prior to the Applicable Time)

 

(3)      Issuer Free Writing Prospectus

 

    (a)       Pricing Term Sheet in the form attached as Schedule I to the Underwriting Agreement dated __________, as filed with the SEC

 

Exhibit 1(b) 

 

[Name of Issuer]

[Name of Security] 

______________________________

 

UNDERWRITING AGREEMENT 

______________________________

 

[Date]

 

To the Representatives named in Schedule II
hereto, on behalf of the Underwriters
named in Schedule II hereto

 

Ladies and Gentlemen:

 

1.           Introductory. [1NextEra Energy, Inc., a Florida corporation (“NEE”), proposes to issue and sell shares of NEE’s common stock, $.01 par value (the “Common Stock”), with the terms and in the amount specified in Schedule I hereto (the “Securities”).] [2NextEra Energy, Inc., a Florida corporation (“NEE”), proposes to issue and sell NEE’s new equity securities with the terms and in the amount specified in Schedule I hereto (“Securities”), and in connection therewith NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and a wholly-owned subsidiary of NEE, proposes to issue and sell certain of its debt securities as specified herein. The Securities will consist of _______ equity units comprised of ______ of NEE’s corporate units (“Corporate Units”), with a stated amount per Corporate Unit of $__ (the “Stated Amount”).] [2Each of] NEE [2and NEE Capital] hereby confirms its agreement with the several Underwriters (as defined below) as set forth herein.

 

The term “Underwriters” as used herein shall be deemed to mean the entity or several entities named in Schedule II hereto and any underwriter substituted as provided in Section [6] hereof, and the term “Underwriter” shall be deemed to mean one of such Underwriters. If the entity or entities listed as a Representative in Schedule II hereto (the “Representatives”) are the same as the entity or entities listed as Underwriters in Schedule II hereto, then the terms “Underwriters” and “Representatives,” as used herein, shall each be deemed to refer to such entity or entities. The Representatives represent that they have been authorized by each Underwriter to enter into this agreement on behalf of such Underwriter and to act for it in the manner herein provided. All obligations of the Underwriters hereunder are several and not joint. If more than one entity is named as a Representative in Schedule II hereto, any action under or in respect of this agreement may be taken by such entities jointly as the Representatives or by one of the entities acting on behalf of the Representatives and such action will be binding upon all the Underwriters.

 

 
1 For use in connection with Common Stock. NEE may also issue warrants to purchase common stock. In that event, please refer to the provisions of this Form of Underwriting Agreement that relate to stock purchase contracts and to the Common Stock. Appropriate changes will be made for the issuance of warrants.

 

2 For use in connection with Stock Purchase Units. If, rather than debt securities of NEE Capital, NEE issues debt securities of NEE as a component of Stock Purchase Units, not all of the language indicated by reference to this footnote would be included in the related underwriting agreement. NEE may also substitute preferred stock for Common Stock in connection with the Stock Purchase Units. In that event, please refer to the Form of Underwriting Agreement with respect to preferred stock of NEE.

 

 

2.           [2Description of Securities. Each Corporate Unit will consist of a unit comprised of (a) a stock purchase contract (a “Purchase Contract”) under which (i) the holder will purchase from NEE not later than __________, ____ (the “Purchase Contract Settlement Date”), for $__ in cash, a fraction of a newly issued share (a “Share”) of NEE’s common stock, $.01 par value (the “Common Stock”) determined as provided in the Purchase Contract, and (ii) NEE will pay the holder unsecured contract adjustment payments (“Contract Adjustment Payments”) at the rate per annum ____% of the Stated Amount per Corporate Unit as set forth in the Pricing Term Sheet (as defined below), subject to the right of NEE to defer such payments, and (b) prior to the Purchase Contract Settlement Date, a ____% beneficial ownership interest in a Series __ Debenture due __________, ____ issued by NEE [Capital] (a “Debenture”), having a principal amount of $__. The Debentures will be a series of debentures issued by NEE [Capital] pursuant to the Indenture [(For Unsecured Debt Securities)] [(For Unsecured Subordinated Debt Securities)], dated as of [June 1, 1999] [September 1, 2006] between [__________] and The Bank of New York Mellon, as trustee (the “Trustee”), a copy of which Indenture has been heretofore delivered to the Representatives (together with any amendments or supplements thereto, the “Indenture”). The Debentures will be [absolutely, irrevocably and unconditionally] [unconditionally and irrevocably] guaranteed by NEE [pursuant to, and in accordance with, the terms of the Guarantee Agreement, dated as of June 1, 1999, between NEE, as Guarantor, and The Bank of New York Mellon, as Guarantee Trustee, a copy of which has been heretofore delivered to the Representatives (the “Guarantee Agreement”)] [on a subordinated basis by NEE, as set forth in the Indenture]. The term “Guarantee” as used in this agreement shall refer to the guarantee of NEE pursuant to the [Guarantee Agreement] [Indenture].] In accordance with the terms of the Purchase Contract Agreement, dated as of __________, ____ (the “Purchase Contract Agreement”), between NEE and The Bank of New York Mellon, as Purchase Contract Agent and Trustee (the “Purchase Contract Agent”), the Debentures constituting a part of the Corporate Units will be pledged by the Purchase Contract Agent, on behalf of the holders of the Securities (as defined herein), to __________, as Collateral Agent, pursuant to the Pledge Agreement, dated as of __________, ____ (the “Pledge Agreement”), between NEE, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary, to secure the holders’ obligations to purchase Shares pursuant to the Purchase Contracts. Under certain circumstances, holders of Corporate Units may substitute [certain U.S. Treasury securities for the Debentures that are a part of such holders’ Corporate Units and thereby create treasury units (“Treasury Units”)] in accordance with the terms of the Purchase Contract Agreement and the Pledge Agreement. Also, under certain circumstances, the Debentures will be subject to remarketing pursuant to a Remarketing Agreement, to be dated on or about _________, _____ between __________, as Remarketing Agent and as Reset Agent, NEE[, NEE Capital] and the Purchase Contract Agent (the “Remarketing Agreement”).]

2 

 

3.           [2Representations and Warranties of NEE Capital. NEE Capital represents and warrants to the several Underwriters that:

 

(a)    NEE Capital has filed with the Securities and Exchange Commission (the “Commission”) a joint registration statement with NEE and Florida Power & Light Company, a Florida corporation (“FPL”), on Form S-3 (Registration Statement Nos. 333-______, 333-______-01 and 333-______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE Capital, threatened by the Commission. References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Securities (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Securities and (B) the first contract of sale of the Securities), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to NEE and NEE Capital forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Securities deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Securities, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the Securities that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Securities and otherwise satisfies Section 10(a) of the Securities Act.

3 

 

The prospectus supplement relating to the Securities proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section [6] hereof), NEE Capital may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or NEE may file a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Securities.

 

(b)    The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act (“Rule 405”)) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by NEE Capital and not removed; and with respect to the Debentures, NEE Capital is a “well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of the definition of “well-known seasoned issuer” in Rule 405 and is not an “ineligible issuer” (as defined in Rule 405).

 

(c)    The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of [__________] [the date hereof] and at the Closing Date, and the Registration Statement and the Indenture, at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended (the “1939 Act”), respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of [__________] [the date hereof] and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(c) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”) or to any statements or omissions made in the Registration Statement or the Prospectus relating to The Depository Trust Company (“DTC”) Book-Entry-Only System [or the book-entry only systems of Clearstream Banking, société anonyme (“Clearstream”), or Euroclear Bank SA/NV, as operator of the Euroclear System (“Euroclear”)], that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear].

4 

 

(d)    As of the Applicable Time (as defined below), the Pricing Disclosure Package (as defined below) [will][did] not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(d) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus (as defined below), or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. References to the term “Pricing Disclosure Package” means the items listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act (“Rule 433”). References to the term “Applicable Time” means [____ [A.M./P.M.], New York City time, on [______] [the date hereof]][the time agreed upon by NEE, NEE Capital and the Underwriters on __________ as of which all the documents that comprise the Pricing Disclosure Package were made available to the Underwriters for purposes of confirming sales of the Securities under this agreement].

 

(e)    As of the Applicable Time, no Issuer Free Writing Prospectus [includes] will include] any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)    The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE Capital, and the fulfillment of the terms hereof on the part of NEE Capital to be fulfilled, have been duly authorized by all necessary corporate action of NEE Capital in accordance with the provisions of its Articles of Incorporation, as amended (the “NEE Capital Charter”), its Bylaws, as amended (the “NEE Capital Bylaws”), and applicable law, and the Debentures when issued and delivered by NEE Capital as provided herein will constitute valid and binding obligations of NEE Capital enforceable against NEE Capital in accordance with their terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought. The execution and delivery by NEE Capital of the Indenture did not require, and the execution and delivery by NEE Capital of this agreement and the Debentures and the performance by NEE Capital of its obligations under this agreement, the Debentures and the Indenture do not require, any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than those consents, approvals, authorizations, registrations or qualifications as have already been obtained and other than those required in connection or in compliance with the provisions of the blue sky laws of any jurisdiction.

5 

 

(g)   The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE Capital, the fulfillment of the terms hereof on the part of NEE Capital to be fulfilled, and the compliance by NEE Capital with all the terms and provisions of the Indenture and the Debentures will not result in a breach of any of the terms or provisions of, or constitute a default under, the NEE Capital Charter, the NEE Capital Bylaws or any indenture, mortgage, deed of trust or other agreement or instrument to which NEE Capital or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to NEE Capital or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over NEE Capital or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of NEE Capital and its subsidiaries taken as a whole.

 

(h)   NEE Capital or one or more of its direct or indirect subsidiaries owns all of the ownership interests in [insert names of significant subsidiaries] free and clear of all liens, encumbrances and adverse claims, except such as do not materially affect the value thereof and, in the case of any such significant subsidiary that is a limited partnership, except as may otherwise be provided in the applicable limited partnership agreement.

 

(i)    NEE Capital and each of its direct and indirect significant subsidiaries (as defined in Regulation S-X (17 CFR Part 210) (“Regulation S-X”)) has been duly organized, is validly existing and is in good standing under the laws of its respective jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which its respective ownership of properties or the conduct of its respective businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of NEE Capital and its subsidiaries taken as a whole, and has the power and authority as a corporation or other entity necessary to own or hold its respective properties and to conduct the businesses in which it is engaged.

 

(j)    The Debentures will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(k)   The Indenture (i) has been duly authorized by NEE Capital by all necessary corporate action, [has been duly] [and, when] executed and delivered by NEE Capital, and [is] [will be] a valid and binding instrument enforceable against NEE Capital in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(l)    NEE Capital is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds from the sale of the Securities as described in the Pricing Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (“1940 Act”).

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(m)    Except as described in the Pricing Disclosure Package and the Prospectus, NEE Capital or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of NEE Capital and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on NEE Capital and its subsidiaries taken as a whole.]

 

4.            Representations and Warranties of NEE. NEE represents and warrants to the several Underwriters that:

 

(a)    [1NEE has filed with the Securities and Exchange Commission (the “Commission”), together with NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and Florida Power & Light Company, a Florida corporation (“FPL”), a joint registration statement on Form S-3, including a prospectus (Registration Statement Nos. 333-_______, 333-______-01 and 333-_______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”),] [2NEE has filed with the Commission, together with NEE Capital and FPL, Registration Statement No. 333-______ for the registration under the Securities Act,] of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE, threatened by the Commission. [1References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Securities (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Securities and (B) the first contract of sale of the Securities), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to NEE and NEE Capital forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Securities deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Securities, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the __________ that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Securities and otherwise satisfies Section 10(a) of the Securities Act.]

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The prospectus supplement relating to the Securities proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section [6] hereof), NEE may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Securities.

 

(b)   The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by NEE and not removed; and NEE is a “well-known seasoned issuer” and is not an “ineligible issuer” (in each case as defined in Rule 405).

 

(c)   The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of [_________] [the date hereof] and at the Closing Date, and the Registration Statement [2, [the [Guarantee Agreement] [Indenture] and the Purchase Contract Agreement] at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act [2and the 1939 Act, respectively] and [2, in each case,] the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of [the date hereof] [__________] and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section [4(c)] shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE [2or NEE Capital] by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility [1on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”)] or to any statements or omissions made in the Registration Statement or the Prospectus relating to [1The Depository Trust Company (“DTC”)] [2the DTC] Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]; and the Incorporated Documents, when filed with the Commission, fully complied or will fully comply in all material respects with the applicable provisions of the [1Securities] Exchange Act [1of 1934, as amended (the “Exchange Act”),] and the applicable instructions, rules and regulations of the Commission thereunder.

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(d)    As of the Applicable Time [1(as defined below)], the Pricing Disclosure Package [1(as defined below)] [did] [will] not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section [4(d)] shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE [2or NEE Capital] by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus [1(as defined below)], or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. [1References to the term “Pricing Disclosure Package” means the documents listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433. References to the term “Applicable Time” means [____ [A.M./P.M.], New York City time, on [______] [the date hereof]][the time agreed upon by NEE and the Underwriters on __________ as of which all the documents that comprise the Pricing Disclosure Package were made available to the Underwriters for purposes of confirming sales of the Securities under this agreement].

 

(e)    As of the Applicable Time, no Issuer Free Writing Prospectus [includes] [will include] any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)    The financial statements included as part of or incorporated by reference in the Pricing Disclosure Package, the Prospectus and the Registration Statement present fairly the consolidated financial condition and results of operations of NEE and its subsidiaries taken as a whole at the respective dates or for the respective periods to which they apply; such financial statements have been prepared in each case in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as otherwise indicated in the Pricing Disclosure Package, the Prospectus and the Registration Statement; and Deloitte & Touche LLP, who has audited the audited financial statements of NEE, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder.

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(g)   Except as reflected in or contemplated by the Pricing Disclosure Package, since the respective most recent times as of which information is given in the Pricing Disclosure Package, there has not been any material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole, whether or not in the ordinary course of business, nor has any transaction been entered into by NEE or any of its subsidiaries that is material to NEE and its subsidiaries taken as a whole, other than changes and transactions contemplated by the Pricing Disclosure Package and transactions in the ordinary course of business. NEE and its subsidiaries have no contingent obligation material to NEE and its subsidiaries taken as a whole, which is not disclosed in or contemplated by the Pricing Disclosure Package.

 

(h)   The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE, and the fulfillment of the terms hereof on the part of NEE to be fulfilled, have been duly authorized by all necessary corporate action of NEE in accordance with the provisions of its Restated Articles of Incorporation (the “NEE Charter”), its Amended and Restated Bylaws, as amended (the “NEE Bylaws”), and applicable law[2, and the Securities when issued and delivered by NEE as provided herein will constitute valid and binding obligations of NEE enforceable against NEE in accordance with their terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought]. The execution and delivery by NEE [2of the Guarantee Agreement did not require, and the execution and delivery by NEE] of this agreement [2and the Purchase Contract Agreement] and the performance by NEE of its obligations under this agreement [2, the Purchase Contract Agreement and, with respect to the Debentures, under the Guarantee Agreement] do not require, any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than those consents, approvals, authorizations, registrations or qualifications as have already been obtained and other than those required in connection or in compliance with the provisions of the blue sky laws of any jurisdiction.

 

(i)     The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE [1and] [2,] the fulfillment of the terms hereof on the part of NEE to be fulfilled, [2and the compliance by NEE with all the terms and provisions of the Guarantee Agreement with respect to the Debentures] will not result in a breach of any of the terms or provisions of, or constitute a default under, the NEE Charter or the NEE Bylaws or any indenture, mortgage, deed of trust or other agreement or instrument to which NEE or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to NEE or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over NEE or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of NEE and its subsidiaries taken as a whole.

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(j)     NEE or one or more of its direct or indirect subsidiaries owns all of the common stock (with respect to those subsidiaries which are organized as corporations) or other ownership interests (with respect to those subsidiaries which are organized as limited liability companies or limited partnerships) in NEE’s direct or indirect significant subsidiaries (as defined in Regulation S-X [1(17 CFR Part 210) (“Regulation S-X”)]) free and clear of all liens, encumbrances and adverse claims, except such as do not materially affect the value thereof and, in the case of any such significant subsidiary that is a limited partnership, except as may otherwise be provided in the applicable limited partnership agreement. NEE’s direct and indirect significant subsidiaries (as defined in Regulation S-X) are [insert names of significant subsidiaries].

 

(k)   NEE and each of its direct and indirect significant subsidiaries (as defined in Regulation S-X) has been duly organized, is validly existing and is in good standing under the laws of its respective jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which its respective ownership of properties or the conduct of its respective businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of NEE and its subsidiaries taken as a whole, and has the power and authority as a corporation or other entity necessary to own or hold its respective properties and to conduct the businesses in which it is engaged.

 

(l)     [2The Guarantee Agreement (i) has been duly authorized by NEE by all necessary corporate action, has been duly executed and delivered by NEE and is a valid and binding instrument enforceable against NEE in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.]

 

(m) [2Each of the Purchase Contract Agreement, the Pledge Agreement and the Purchase Contracts forming a part of the Securities (i) has been authorized by all necessary corporate action on the part of NEE and, when duly executed and delivered as provided herein, will constitute a valid and binding obligation of NEE enforceable against NEE in accordance with their respective terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and, with respect to the Purchase Contract Agreement and the Pledge Agreement, subject to any principles of public policy limiting the rights to enforce the indemnification and exculpation provisions contained therein and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and Prospectus.]

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(n)   [1The Common Stock has been validly authorized and, when issued and delivered by NEE against payment therefor in accordance with the provisions of this agreement, will be fully paid and non-assessable and the holders of outstanding shares of Common Stock are not entitled to preemptive rights to subscribe for the Common Stock issued in accordance with the provisions of this agreement. [2The Common Stock issuable pursuant to the Purchase Contracts forming a part of the Securities has been validly authorized and reserved for issuance and, when issued and delivered by NEE against payment therefor in accordance with the provisions of the Purchase Contract Agreement, the Purchase Contracts and the Pledge Agreement, will be fully paid and non-assessable and the holders of outstanding shares of Common Stock are not entitled to preemptive rights to subscribe for the Common Stock issuable pursuant to the Purchase Contracts forming a part of the Securities.

 

(o)   [2The Indenture (i) has been duly authorized by NEE by all necessary corporate action, has been duly executed and delivered by NEE, and is a valid and binding instrument enforceable against NEE in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.]

 

(p)   NEE is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds from the sale of the Securities as described in the Pricing Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the [1Investment Company Act of 1940, as amended (“]1940 Act[1”)].

 

(q)   Except as described in the Pricing Disclosure Package and the Prospectus, NEE or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of NEE and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on NEE and its subsidiaries taken as a whole.

 

(r)    The interactive data in eXtensible Business Reporting Language filed as exhibits to NEE’s Form 10-K for the year ended ______ [and Form 10-Q[s] for the quarter[s] ended ______, ______ and ______] fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

5.          Purchase and Sale. Subject to the terms and conditions in this agreement (including the representations and warranties herein contained), NEE [2and NEE Capital agree] [1agrees] to sell to the respective Underwriters named in Schedule II hereto, severally and not jointly, and the respective Underwriters agree, severally and not jointly, to purchase from NEE [2and NEE Capital] for an aggregate purchase price of $__________, the respective number of the Securities set forth opposite their respective names in Schedule II hereto.

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The Underwriters agree to make a bona fide public offering of the Securities, as set forth in the Pricing Disclosure Package, such public offering to be made as soon after the execution of this agreement as practicable, subject, however, to the terms and conditions of this agreement. The Underwriters have advised NEE that the Securities will initially be offered to the public at the Price per [1share] [2Corporate Unit] set forth in the Pricing Term Sheet as the Price to Public and to certain dealers selected by the Representatives at a price which represents a concession. Such dealers’ concession may not be in excess of $____ per [1share] [2Corporate Unit].

 

[2The Debentures constituting a part of the Corporate Units will be pledged, together with other collateral, to the Collateral Agent to secure the holders’ obligations to purchase Common Stock under the Purchase Contracts. Such pledge shall be effected by delivery to the Collateral Agent of the Debentures to be pledged in certificated form endorsed in blank, at the Closing Date in accordance with the Pledge Agreement.]

 

Each Underwriter agrees that (i) no information that is presented by it to investors has been or will be inconsistent with the information contained in the Pricing Disclosure Package as it may then be amended or supplemented and (ii) it will make no offer that would constitute a Free Writing Prospectus that is required to be filed by NEE [2or NEE Capital] pursuant to Rule 433 other than an Issuer Free Writing Prospectus in accordance with Section [7(h)] hereof. References to the term “Free Writing Prospectus” means a free writing prospectus as defined in Rule 405.

 

6.         Time, Date and Place of Closing, Default of the Underwriters. Delivery of the Securities and payment therefor by wire transfer in federal funds [2, against delivery to the Collateral Agent of the Debentures constituting a part of the Corporate Units,] shall be made at 9:00 A.M., New York City time, on the settlement date set forth on Schedule I, at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, or at such other time, date or place as may be agreed upon in writing by NEE[2, NEE Capital] and the Representatives. The time and date of such delivery and payment are herein called the “Closing Date.”

 

[The Securities will be issued in the form of one or more global certificates in fully registered form.] The Securities shall be delivered to the Representatives for the respective accounts of the Underwriters against payment by the several Underwriters through the Representatives of the purchase price therefor. Delivery of the Securities shall be made through the facilities of DTC unless NEE [2NEE Capital] and the Representatives shall otherwise agree. For the purpose of expediting the checking of the Securities [2and the related Debentures] by the Representatives on behalf of the Underwriters, NEE [2and NEE Capital] (if delivery of the Securities [and the related Debentures] shall be made otherwise than through the facilities of DTC) [1agrees] [2agree] to make such Securities [2and the related Debentures] available to the Representatives for such purpose at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, not later than 2:00 P.M., New York City time, on the business day preceding the Closing Date, or at such other time, date or place as may be agreed upon by NEE [2, NEE Capital]and the Representatives.

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If any Underwriter shall fail to purchase and pay for the number of the Securities which such Underwriter has agreed to purchase and pay for hereunder (otherwise than by reason of any failure on the part of NEE [2or NEE Capital] to comply with any of the provisions contained herein), the non-defaulting Underwriters shall be obligated to purchase and pay for (in addition to the respective number of the Securities set forth opposite their respective names in Schedule II hereto) the number of the Securities which such defaulting Underwriter or Underwriters failed to purchase and pay for, up to a number thereof equal to, in the case of each such remaining Underwriter, ten percent (10%) of the aggregate number of the Securities set forth opposite the name of each such remaining Underwriter in said Schedule II, and such remaining Underwriters shall have the right, within 24 hours of receipt of such notice, either to (i) purchase and pay for (in such proportion as may be agreed upon among them) the remaining number of the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase, or (ii) substitute another Underwriter or Underwriters, satisfactory to NEE, to purchase and pay for the remaining number of the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase. If any of the Securities would still remain unpurchased, then NEE shall be entitled to a further period of 24 hours within which to procure another party or other parties that (i) are members of the Financial Industry Regulatory Authority, Inc. or else are not eligible for membership in said Authority but who agree (A) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (B) in making sales to comply with said Authority’s Conduct Rules, and (ii) are satisfactory to the Representatives to purchase such Securities on the terms herein set forth. In the event that, within the respective prescribed periods, (i) the non-defaulting Underwriters notify NEE that they have arranged for the purchase of such Securities or (ii) NEE notifies the non-defaulting Underwriters that it has arranged for the purchase of such Securities, the non-defaulting Underwriters or NEE shall have the right to postpone the Closing Date for a period of not more than three full business days beyond the expiration of the respective prescribed periods in order to effect whatever changes may thus be made necessary in the Registration Statement, the Prospectus or in any other documents or arrangements. In the event that neither the non-defaulting Underwriters nor NEE has arranged for the purchase of such Securities by another party or parties as above provided, then this agreement shall terminate without any liability on the part of NEE [2or NEE Capital] or any Underwriter (other than an Underwriter which shall have failed or refused, otherwise than for some reason sufficient to justify, in accordance with the terms hereof, the cancellation or termination of its obligations hereunder, to purchase and pay for the Securities which such Underwriter has agreed to purchase as provided in Section [5] hereof), except as otherwise provided in Section [7(d]), Section [7(f)] and Section [10] hereof.

 

7.           Covenants of NEE [2and NEE Capital]. NEE [2and NEE Capital agree] [1agrees] with the several Underwriters that:

 

(a)    NEE [2and NEE Capital] will timely file the Prospectus and any preliminary prospectus supplement used in connection with the offering of the Securities with the Commission pursuant to Rule 424. NEE [2and NEE Capital] have complied and will comply with Rule 433 in connection with the offering and sale of the Securities, including applicable provisions in respect of timely filing with the Commission, legending and record-keeping.

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(b)   NEE [2and NEE Capital] will prepare a final term sheet, containing a description of the pricing terms of the Securities, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433.

 

(c)    NEE will, upon request, deliver to the Representatives and to Counsel for the Underwriters (as defined below) one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of NEE to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date hereof, NEE will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus and any Issuer Free Writing Prospectus as the Representatives may reasonably request for the purposes contemplated by the Securities Act.

 

(d)   NEE has paid or caused to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus supplement, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Securities as provided in Section [6] hereof, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus supplement, the Prospectus [1and] [2,] any Issuer Free Writing Prospectus [2, the Indenture, the Guarantee Agreement, and the Purchase Contract Agreement]. NEE will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Securities. NEE shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters (other than in accordance with the provisions of Section [10] hereof), except that if this agreement shall be terminated in accordance with the provisions of Section [8], Section [9] [or] Section [11] hereof, NEE will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and NEE shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. [2Neither] NEE [2nor NEE Capital] shall [1not] in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.

 

(e)   During a period of nine months after the date hereof, if any event relating to or affecting NEE [2or NEE Capital] shall occur which, in the opinion of NEE [2or NEE Capital], should be set forth in a supplement to or an amendment to the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus, in the light of the circumstances pertaining when it is delivered to a purchaser, not misleading. [1NEE] [2NEE Capital] will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend the Prospectus so that as supplemented or amended it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances pertaining when the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date hereof, NEE upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.

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(f)    NEE [2and NEE Capital] will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Securities for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that [2neither] NEE [2nor NEE Capital] shall [1not] be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet other requirements deemed by NEE [2or NEE Capital] to be unduly burdensome.

 

(g)   NEE will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders (including holders of the Securities) as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.

 

(h)   Prior to the termination of the offering of the Securities, [2neither] NEE [2nor NEE Capital] will [1not] file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton Andrews Kurth LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. [2Neither] NEE [1has not] [2nor NEE Capital have] made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by NEE [2or NEE Capital] with the Commission or retained by NEE [2or NEE Capital] pursuant to Rule 433, other than a pricing term sheet substantially in the form as set forth on Schedule I, and [2neither] NEE [2nor NEE Capital] will [1not] make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters.

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(i)     NEE [2and NEE Capital] will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Securities, of official notice of the institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.

 

(j)     If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then pertaining, not misleading, NEE [or NEE Capital] promptly will notify the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.

 

(k)   [Insert lockup provision, if applicable]

 

8.          Conditions of Underwriters’ Obligations to Purchase and Pay for the Securities. The several obligations of the Underwriters to purchase and pay for the Securities shall be subject to the performance by NEE [2and NEE Capital] of [1its] [2their respective] obligations to be performed hereunder on or prior to the Closing Date and to the following conditions:

 

(a)    The [2respective] representations and warranties made by NEE [2and NEE Capital] herein and qualified by materiality shall be true and correct in all respects and the [2respective] representations and warranties made by NEE [2and NEE Capital] herein that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date, in each case, as if made on and as of such date and the Representatives shall have received, prior to payment for the Securities, a certificate from [2each of] NEE [2and NEE Capital] dated the Closing Date and signed by an officer of NEE [2and NEE Capital, as the case may be,] to that effect.

 

(b)   No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by NEE [2or NEE Capital] and not removed by the Closing Date; and the Representatives shall have received, prior to payment for the Securities, a certificate from [2each of] NEE [2and NEE Capital] dated the Closing Date and signed by an officer of NEE [2and NEE Capital, as the case may be,] to the effect that, to the best of his or her knowledge, no such orders are in effect, no proceedings for either such purpose are pending before, or to the knowledge of NEE [2or NEE Capital, as the case may be,] threatened by, the Commission, and no such notice of objection has been received and not removed.

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(c)    On the Closing Date, the Representatives shall have received from Squire Patton Boggs (US) LLP, counsel to NEE [2and NEE Capital], Morgan, Lewis & Bockius LLP, counsel to NEE [2and NEE Capital], and Hunton Andrews Kurth LLP, Counsel for the Underwriters, opinions (with a copy for each of the Underwriters) in substantially the form and substance prescribed in Schedule IV, Schedule V, and Schedule VI hereto (i) with such changes therein as may be agreed upon by NEE [2, NEE Capital] and the Representatives, with the approval of Counsel for the Underwriters, and (ii) if the Prospectus relating to the Securities shall be supplemented or amended after the Prospectus shall have been filed with the Commission pursuant to Rule 424, with any changes therein necessary to reflect such supplementation or amendment.

 

(d)   On the date hereof and on the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters (which may refer to letters previously delivered to the Representatives) (with copies thereof for each of the Underwriters) dated the respective dates of delivery thereof to the effect that (i) they are an independent registered public accounting firm with respect to NEE within the meaning of the Securities Act and the Exchange Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the consolidated financial statements of NEE audited by them and incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder; (iii) on the basis of performing a review of interim financial information as described in the Public Company Accounting Oversight Board (United States) (“PCAOB”) AS 4105, Reviews of Interim Financial Information, on the unaudited [condensed] consolidated financial statements of NEE, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, a reading of the latest available interim unaudited [condensed] consolidated financial statements of NEE, if any, since the close of NEE’s most recent audited fiscal year, a reading of the minutes and consents of the Board of Directors, the Audit Committee of the Board of Directors and the Finance & Investment Committee of the Board of Directors and of the shareholders of NEE [2and the minutes and consents of the Board of Directors and of the shareholder of NEE Capital] since the end of the most recent audited fiscal year, and inquiries of officials of NEE who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Underwriters’ purposes), nothing has come to their attention which caused them to believe that (a) the unaudited [condensed] consolidated financial statements of NEE, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, (1) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder and (2) except as disclosed in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements of NEE incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable; (b) at the date of the latest available interim balance sheet read by them and at a specified date not more than five days prior to the date of such letter, there was any change in the capital stock or increase in long-term debt including current maturities and excluding fair value swaps, if any, and unamortized premium and discount on long-term debt of NEE and its subsidiaries, or decrease in common shareholders’ equity of NEE and its subsidiaries, in each case as compared with amounts shown in the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, except in all instances for changes, increases or decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or as occasioned by the declaration, provision for, or payment of dividends, or as occasioned by the issuance, forfeiture or acquisition of common stock pursuant to or in connection with any employee or director benefit or compensation plan or the dividend reinvestment and direct stock purchase plan or which are described in such letter; or (c) for the period from the date of the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, to the latest available interim balance sheet read by them and for the period from the date of the latest available interim balance sheet read by them to a specified date not more than five days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated operating revenues or in net income, except in all instances for decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or which are described in such letter; and (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to certain amounts included in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, and such items as the Representatives may reasonably request.

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(e)    Since the respective most recent times as of which information is given in the Pricing Disclosure Package, and up to the Closing Date, (i) there shall have been no material adverse change in the business, properties or financial condition of [2(a) NEE Capital and its subsidiaries taken as a whole or (b)] NEE and its subsidiaries taken as a whole, except [2in each case] as disclosed in or contemplated by the Pricing Disclosure Package, and (ii) there shall have been no transaction entered into by [2(a) NEE Capital or any of its subsidiaries that is material to NEE Capital and its subsidiaries taken as a whole or (b)] NEE or any of its subsidiaries that is material to NEE and its subsidiaries taken as a whole, [2in each case] other than transactions disclosed in or contemplated by the Pricing Disclosure Package, and transactions in the ordinary course of business; and at the Closing Date, the Representatives shall have received a certificate to such effect from [2each of NEE Capital and] NEE signed by an officer of [2NEE Capital or] NEE[2, as the case may be].

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(f)    All legal proceedings to be taken in connection with the issuance and sale of the Securities shall have been satisfactory in form and substance to Counsel for the Underwriters.

 

(g)   [[1The Shares] [2The [Corporate Units and the Shares] to be issued by NEE upon settlement of the Purchase Contracts] will, upon official notice of issuance be listed on The New York Stock Exchange LLC (“NYSE”).].

 

In case any of the conditions specified above in this Section [8] shall not have been fulfilled, this agreement may be terminated by the Representatives upon mailing or delivering written notice thereof to NEE [2and NEE Capital]. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section [7(d)] and Section [7(f)] hereof.

 

9.           Condition[2s] of NEE’s [2and NEE Capital’s] Obligations. The [1obligation] [2obligations] of NEE [2and NEE Capital] to deliver the Securities [2and the Debentures, respectively,] [2and the obligation of NEE to deliver the Guarantee,] shall be subject to the following condition[2s]:

 

(a)    No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by NEE [2or NEE Capital] and not removed by the Closing Date.

 

(b)   [2No “Special Event” (as defined in the Purchase Contract Agreement) shall have occurred and be continuing on the Closing Date.]

 

In case the condition[2s] specified above in this Section [9] shall not have been fulfilled, this agreement may be terminated by NEE [2and NEE Capital] upon mailing or delivering written notice thereof to the Representatives. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section [7(d)] and Section [7(f)] hereof.

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10.          Indemnification.

 

(a)    NEE [2and NEE Capital, jointly and severally, agree] [1agrees] to indemnify and hold harmless each Underwriter, each officer and director of each Underwriter and each person (a “Controlling Person”) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each such Underwriter, officer, director and Controlling Person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, including all Incorporated Documents, or in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this Section [10(a)] shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished in writing, to NEE [2or NEE Capital] by or on behalf of any Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof, or arising out of, or based upon, statements in or omissions from the Statements of Eligibility; and provided, further, that the indemnity agreement contained in this Section [10(a)] in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall not inure to the benefit of any Underwriter (or of any officer or director or Controlling Person of such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of the Securities to any person in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may be then supplemented or amended, furnished by such Underwriter to a person to whom any of the Securities were sold (excluding in all cases, however, any document then incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement made in or omission from such preliminary prospectus supplement, Pricing Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a supplement or amendment to such preliminary prospectus supplement, Pricing Prospectus, Prospectus, or Issuer Free Writing Prospectus (excluding in all cases, however, any document then incorporated by reference therein) (i) is furnished on a timely basis by NEE [2or NEE Capital] to the Underwriter, (ii) is required by law or regulation to have been conveyed to such person by or on behalf of such Underwriter, at or prior to the entry into the contract of sale of the Securities with such person, but was not so conveyed (which conveyance may be oral or written) by or on behalf of such Underwriter and (iii) would have cured the defect giving rise to such loss, claim, damage or liability. The indemnity agreement of NEE [2and NEE Capital] contained in this Section [10(a)] and the representations and warranties of NEE [2and NEE Capital] contained in [1Section [3]] [2Section [3] and Section [4]] hereof, [2respectively,] shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Securities. Each Underwriter agrees promptly to notify [2each of] NEE [2and NEE Capital], and each other Underwriter, of the commencement of any litigation or proceedings against the notifying Underwriter, or any of its officers, directors or Controlling Persons in connection with the issuance and sale of the Securities.

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(b)   Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless [2each of] NEE [2and NEE Capital, their respective] [1, its] officers and directors, and each person who controls NEE [2or NEE Capital, as the case may be] within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and to reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon and in conformity with information furnished in writing to NEE [2or NEE Capital] by or on behalf of such Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof. The Underwriters hereby furnish to NEE [2and NEE Capital] in writing expressly for use in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus, the following: [insert information provided by the Underwriters]. NEE [2and NEE Capital each acknowledge] [1acknowledges] that the statements identified in the preceding [____] sentence[s] constitute the only information furnished in writing by or on behalf of the several Underwriters expressly for inclusion in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus. The respective indemnity agreement of each Underwriter contained in this Section [10(b)] shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of NEE [2or NEE Capital] or any of [2their respective] [1its] officers or directors or any person who controls NEE [2or NEE Capital] within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of any other Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Securities. NEE [2and NEE Capital agree] [1agrees] promptly to notify the Representatives of the commencement of any litigation or proceedings against NEE [2, NEE Capital] (or any of [1its][ 2their respective] controlling persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) or any of [1its] [2their respective] officers or directors in connection with the issuance and sale of the Securities.

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(c)    NEE [2, NEE Capital] and each of the several Underwriters each agree that, upon the receipt of notice of the commencement of any action against it, its officers and directors, or any person controlling it as aforesaid, in respect of which indemnity or contribution may be sought under the provisions of this Section [10], it will promptly give written notice of the commencement thereof to the party or parties against whom indemnity or contribution shall be sought thereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party otherwise than on account of this indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall elect not to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and counsel for the indemnifying party shall have reasonably concluded that there may be a conflict of interest involved in the representation by such counsel of both the indemnifying party and the indemnified party, the indemnified party or parties shall have the right to select separate counsel, satisfactory to the indemnifying party or parties, to participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party or parties (it being understood, however, that the indemnifying party or parties shall not be liable for the expenses of more than one separate counsel representing the indemnified parties who are parties to such action). NEE [2, NEE Capital] and each of the several Underwriters each agree that without the prior written consent of the other parties to such action who are parties to this agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section [10], unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

 

(d)   If, or to the extent, the indemnification provided for in Section [10(a)] or Section [10(b)] hereof shall be unenforceable under applicable law by an indemnified party, each indemnifying party agrees to contribute to such indemnified party with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in Section [10(a)] or Section [10(b)] hereof shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of NEE [2and NEE Capital] on the one hand and the Underwriters on the other hand in connection with the statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by NEE [2and NEE Capital] on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this agreement, and (iii) any other relevant equitable considerations; provided, however, that no indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any indemnifying party not guilty of such fraudulent misrepresentation. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by NEE [2and NEE Capital] or the Underwriters and each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. NEE [2, NEE Capital] and each of the Underwriters each agree that it would not be just and equitable if contribution pursuant to this Section [10(d)] were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section [10(d)], no Underwriter shall be required to contribute in excess of the amount equal to the excess of (i) the total price at which the Securities underwritten by it were offered to the public, over (ii) the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Underwriter to contribute pursuant to this Section [10(d)] are several and not joint and shall be in the same proportion as such Underwriter’s obligation to underwrite the Securities is to the total number of the Securities set forth in Schedule II hereto.

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11.         Termination. This agreement may be terminated by the Representatives by delivering written notice thereof to NEE [2and NEE Capital], at any time prior to the Closing Date, if after the date hereof and at or prior to the Closing Date:

 

(a)    (i) there shall have occurred any general suspension of trading in securities on the NYSE or there shall have been established by the NYSE or by the Commission or by any federal or state agency or by the decision of any court any limitation on prices for such trading or any general restrictions on the distribution of securities, or trading in any securities of NEE [2or NEE Capital] shall have been suspended or limited by any exchange located in the United States or on the over-the-counter market located in the United States or a general banking moratorium declared by New York or federal authorities or (ii) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities, including, but not limited to, an escalation of hostilities which existed prior to the date hereof, any other national or international calamity or crisis or any material adverse change in financial, political or economic conditions affecting the United States, the effect of any such event specified in this clause (ii) being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Securities as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Securities [2; or

 

(b)   (i) there shall have been any downgrading or any notice of any intended or potential downgrading in the ratings accorded to the Debentures or any securities of NEE [Capital] which are of the same class as the Debentures by either [Moody’s Investors Service, Inc. (“Moody’s”)] or [S&P Global Ratings, a division of S&P Global Inc. (“S&P”)], or (ii) either [Moody’s] or [S&P] shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Debentures or any securities of NEE [Capital] which are of the same class as the Debentures, the effect of any such event specified in (i) or (ii) above being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Securities as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Securities].

24 

 

This agreement may also be terminated at any time prior to the Closing Date if in the judgment of the Representatives the subject matter of any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus prepared and furnished by NEE [2and NEE Capital] after the date hereof reflects a material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole [2or NEE Capital and its subsidiaries taken as a whole] which renders it either inadvisable to proceed with such offering, if any, or inadvisable to proceed with the delivery of the Securities to be purchased hereunder. Any termination of this agreement pursuant to this Section [11] shall be without liability of any party to any other party except as otherwise provided in Section [7(d)] and Section [7(f)] hereof.

 

12.         Miscellaneous.

 

(a)    The validity and interpretation of this agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles thereunder. This agreement shall inure to the benefit of, and be binding upon, NEE [2, NEE Capital], the several Underwriters and, with respect to the provisions of Section [10] hereof, each officer, director or controlling person referred to in said Section [10], and their respective successors. Nothing in this agreement is intended or shall be construed to give to any other person or entity any legal or equitable right, remedy or claim under or in respect of this agreement or any provision herein contained. The term “successors” as used in this agreement shall not include any purchaser, as such purchaser, of any Securities from any of the several Underwriters.

 

(b)   NEE [2and NEE Capital each acknowledge and agree] [1acknowledges and agrees] that the Underwriters are acting solely in the capacity of arm’s length contractual counterparties to NEE [2and NEE Capital] with respect to the offering of the Securities as contemplated by this agreement and not as financial advisors or fiduciaries to NEE [2or NEE Capital] in connection herewith. Additionally, none of the Underwriters is advising NEE [2or NEE Capital] as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction in connection with the offering of the Securities as contemplated by this agreement. Any review by the Underwriters of NEE [2and NEE Capital] in connection with the offering of the Securities contemplated by this agreement and the transactions contemplated by this agreement will not be performed on behalf of NEE [2and NEE Capital].

 

13.        Notices. All communications hereunder shall be in writing and, if to the Underwriters, shall be mailed or delivered to the Representatives at the address set forth in Schedule II hereto, or, if to NEE [2or NEE Capital], shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.

 

14.         Counterparts. This agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. 

25 

 

15.         Recognition of the U.S. Special Resolution Regimes.

 

(a)           In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this agreement, and any interest and obligation in or under this agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)          In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this agreement were governed by the laws of the United States or a state of the United States.

 

(c)           For purpose of this Section [15], (A) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) the term “Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) the term “U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

26 

 

If the foregoing correctly sets forth our understanding, please indicate your acceptance on behalf of the Underwriters in the space provided below for that purpose, whereupon this letter and your acceptance on behalf of the Underwriters shall constitute a binding agreement between [NEE][, NEE Capital] and the Underwriters.

 

  Very truly yours,
   
  NextEra Energy, Inc.
   
  By:   
    Name:
    Title:
   
  [2NextEra Energy Capital Holdings, Inc.
   
  By:  
    Name:
    Title:]
     
Accepted and delivered as of  
the date first above written by the  
Representatives on behalf of the Underwriters:
       
   
   
By:     
  Name:  
  Title:  

27 

 

SCHEDULE I

 

[Name of Issuer]

 

Pricing Term Sheet

 

[Date]

 

Issuer: 

[1Common Stock Ticker:]

Designation:

Registration Format:

[1Number of shares of Common Stock:]

[2Number of Equity Units Offered:]

[2Aggregate Offering Amount:]

[2Stated Amount per Equity Unit:]

Price to Public:

Purchase Price:

Trade Date:

Settlement Date:

CUSIP/ISIN Number:

[Other Terms]

[2Expected Credit Ratings:*]

[2Debentures:

Designation:

Principal Amount:

Date of Maturity:

Interest Payment Dates:

Coupon Rate:]

Underwriters:

__________ 

*A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.

 

The terms “___________” and “__________” have the meanings ascribed to those terms in the Issuer’s Preliminary Prospectus Supplement, dated ___________.

 

The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling __________ toll-free at __________ or __________ toll-free at __________.

 

 

SCHEDULE II

 

Representatives   Addresses
     
     
     
   
     
     
Underwriters   Number of Securities
     
     
     
     
     
     
     
     
     
     
     
     
Total  

 

 

SCHEDULE III

 

PRICING DISCLOSURE PACKAGE

 

(1)        Base Prospectus, dated ________________

 

(2)        Preliminary Prospectus Supplement, dated _______________ (which shall be deemed to include the Incorporated Documents filed at or prior to the Applicable Time to the extent not superseded by Incorporated Documents filed at or prior to the Applicable Time)

 

(3)         Issuer Free Writing Prospectus

 

[(a) Pricing Term Sheet in the form attached as Schedule I to the Underwriting Agreement dated __________, as filed with the SEC]

 

Exhibit 1(c) 

 

[Name of Issuer]

[Preferred Stock] 

______________________________

 

UNDERWRITING AGREEMENT

______________________________

 

[Date]

 

To the Representatives named in Schedule II
hereto, on behalf of the Underwriters
named in Schedule II hereto

 

Ladies and Gentlemen:

 

1.           Introductory. [1NextEra Energy, Inc., a Florida corporation (“NEE”), proposes to issue and sell shares of NEE’s serial preferred stock, $.01 par value, with the terms and in the amount specified in Schedule I hereto (the “Preferred Stock” or the “Shares”).] [2NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and a [wholly-owned] subsidiary of NextEra Energy, Inc., a Florida corporation (“NEE”), proposes to issue and sell shares of NEE Capital’s preferred stock, $.01 par value, with the terms and in the amount specified in Schedule I hereto (the “Preferred Stock” or the “Shares”). The Preferred Stock will be fully and unconditionally guaranteed by NEE pursuant to and in accordance with the terms of the Guarantee Agreement, dated as of _________, ____, between NEE and the holders of the Preferred Stock (the “Guarantee Agreement”).] [1NEE hereby confirms its agreement with the several Underwriters (as defined below) as set forth herein.] [2Each of NEE and NEE Capital hereby confirms its agreement with the several Underwriters (as defined below) as set forth herein.]

 

The term “Underwriters” as used herein shall be deemed to mean the entity or several entities named in Schedule II hereto and any underwriter substituted as provided in Section [5] hereof, and the term “Underwriter” shall be deemed to mean one of such Underwriters. If the entity or entities listed as a Representative in Schedule II hereto (the “Representatives”) are the same as the entity or entities listed as Underwriters in Schedule II hereto, then the terms “Underwriters” and “Representatives,” as used herein, shall each be deemed to refer to such entity or entities. The Representatives represent that they have been authorized by each Underwriter to enter into this agreement on behalf of such Underwriter and to act for it in the manner herein provided. All obligations of the Underwriters hereunder are several and not joint. If more than one entity is named as a Representative in Schedule II hereto, any action under or in respect of this agreement may be taken by such entities jointly as the Representatives or by one of the entities acting on behalf of the Representatives and such action will be binding upon all the Underwriters.

 

 

1 For use in connection with Preferred Stock of NEE. NEE may also issue Depositary Shares. Appropriate changes will be made for the issuance of NEE Depositary Shares.

 

2 For use in connection with Preferred Stock of NEE Capital. NEE Capital may also issue Depositary Shares. Appropriate changes will made for the issuance of NEE Capital Depositary Shares.

 

 

2.            [2Representations and Warranties of NEE Capital. NEE Capital represents and warrants to the several Underwriters that:

 

(a)       NEE Capital has filed with the Securities and Exchange Commission (the “Commission”) a joint registration statement with NEE and Florida Power & Light Company, a Florida corporation (“FPL”), on Form S-3 (Registration Statement Nos. 333-______, 333-______-01 and 333-______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE Capital, threatened by the Commission. References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Shares (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Shares and (B) the first contract of sale of the Shares), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to NEE and NEE Capital forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Shares deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Preferred Stock, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the Shares that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Shares and otherwise satisfies Section 10(a) of the Securities Act. The prospectus supplement relating to the Shares proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section [6] hereof), NEE Capital may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or NEE may file a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Shares.

2 

 

(b)      The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act (“Rule 405”)) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by NEE Capital and not removed; and with respect to the Shares, NEE Capital is a “well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of the definition of “well-known seasoned issuer” in Rule 405 and is not an “ineligible issuer” (as defined in Rule 405).

 

(c)      The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of the date hereof and at the Closing Date, and the Registration Statement, at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of the date hereof and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 2(c) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”) or to any statements or omissions made in the Registration Statement or the Prospectus relating to The Depository Trust Company (“DTC”) Book-Entry-Only System [or the book-entry only systems of Clearstream Banking, société anonyme (“Clearstream”), or Euroclear Bank SA/NV, as operator of the Euroclear System (“Euroclear”)], that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear].

3 

 

(d)      As of the Applicable Time (as defined below), the Pricing Disclosure Package (as defined below) did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 2(d) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus (as defined below), or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. References to the term “Pricing Disclosure Package” means the items listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act (“Rule 433”). References to the term “Applicable Time” means ____ [A.M./P.M.], New York City time, on [______] [the date hereof].

 

(e)       As of the Applicable Time, no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)       The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE Capital, and the fulfillment of the terms hereof on the part of NEE Capital to be fulfilled, have been duly authorized by all necessary corporate action of NEE Capital in accordance with the provisions of its Articles of Incorporation, as amended (the “NEE Capital Charter”), its Bylaws, as amended (the “NEE Capital Bylaws”), and applicable law. The execution and delivery by NEE Capital of this agreement and of a certificate or certificates for the Shares and the performance by NEE Capital of its obligations under this agreement and under the Shares do not require any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than (i) those consents, approvals, authorizations, registrations or qualifications as have already been obtained, (ii) those consents, approvals, authorizations, registrations or qualifications required in connection or in compliance with the provisions of the blue sky laws of any jurisdiction, and (iii) the filing of Articles of Amendment to the NEE Capital Charter relating to the Shares (the “Articles of Amendment”) with the appropriate office of the Department of State, State of Florida which shall be filed by NEE Capital prior to the Closing Date.

 

(g)      The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE Capital and the fulfillment of the terms hereof on the part of NEE Capital to be fulfilled will not result in a breach of any of the terms or provisions of, or constitute a default under, the NEE Capital Charter (as amended by the Articles of Amendment), the NEE Capital Bylaws or any indenture, mortgage, deed of trust or other agreement or instrument to which NEE Capital or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to NEE Capital or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over NEE Capital or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of NEE Capital and its subsidiaries taken as a whole.

4 

 

(h)      NEE Capital or one or more of its direct or indirect subsidiaries owns all of the ownership interests in [insert names of significant subsidiaries] free and clear of all liens, encumbrances and adverse claims, except such as do not materially affect the value thereof and, in the case of any such significant subsidiary that is a limited partnership, except as may otherwise be provided in the applicable limited partnership agreement.

 

(i)       NEE Capital and each of its direct and indirect significant subsidiaries (as defined in Regulation S-X (17 CFR Part 210) (“Regulation S-X”)) has been duly organized, is validly existing and is in good standing under the laws of its respective jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which its respective ownership of properties or the conduct of its respective businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of NEE Capital and its subsidiaries taken as a whole, and has the power and authority as a corporation or other entity necessary to own or hold its respective properties and to conduct the businesses in which it is engaged.

 

(j)       The Shares conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(k)     The Preferred Stock has been validly authorized and, when issued and delivered by NEE Capital against payment therefor in accordance with the provisions of this agreement, will be fully paid and non-assessable.

 

(l)       The Preferred Stock will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(m)     NEE Capital is not, and after giving effect to the offering and sale of the Preferred Stock and the application of the proceeds from the sale of the Preferred Stock as described in the Pricing Disclosure Package and the Prospectus, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (“1940 Act”).

 

(n)     Except as described in the Pricing Disclosure Package and the Prospectus, NEE Capital or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of NEE Capital and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on NEE Capital and its subsidiaries taken as a whole.]

5 

 

3.            Representations and Warranties of NEE. NEE represents and warrants to the several Underwriters that:

 

(a)       [1NEE, together with NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and a [wholly-owned] subsidiary of NEE], and Florida Power & Light Company filed with the Securities and Exchange Commission (the “Commission”) a joint Registration Statement Nos. 333-_______, 333-______-01 and 333-_______-02 (“Registration Statement No. 333-______”), for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of (a) an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE, threatened by the Commission. References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Shares (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B [under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Shares and (B) the first contract of sale of the Shares), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to NEE and NEE Capital forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Shares deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Shares, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the __________ that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Shares and otherwise satisfies Section 10(a) of the Securities Act. The prospectus supplement relating to the Shares proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date [2as defined in Section [6] hereof], NEE may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Shares.]

6 

 

[2NEE, together with NEE Capital and Florida Power & Light Company, has filed with the Commission Registration Statement No. 333-_____ for the registration under the Securities Act of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of NEE, threatened by the Commission. Each of the Underwriters acknowledges that on or subsequent to the Closing Date, NEE may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel.]

 

(b)      The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by NEE and not removed; and NEE is a “well-known seasoned issuer” and is not an “ineligible issuer” (in each case as defined in Rule 405).

 

(c)      The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of the date hereof and at the Closing Date, and the Registration Statement at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of the date hereof and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section [3](c) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE [2or NEE Capital] by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility [1on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”)] or to any statements or omissions made in the Registration Statement or the Prospectus relating to [1The Depository Trust Company (“DTC”)] [2the DTC] Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]; and the Incorporated Documents, when filed with the Commission, fully complied or will fully comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable instructions, rules and regulations of the Commission thereunder.

7 

 

(d)      As of the Applicable Time [1(as defined below)], the Pricing Disclosure Package [1(as defined below)] did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section [3](d) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to NEE [2or NEE Capital] by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus [1(as defined below)], or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. [1References to the term “Pricing Disclosure Package” means the documents listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433. References to the term “Applicable Time” means ____[A.M./P.M.], New York City time, on [______] [the date hereof].

 

(e)       As of the Applicable Time, no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)       The financial statements included as part of or incorporated by reference in the Pricing Disclosure Package, the Prospectus and the Registration Statement present fairly the consolidated financial condition and results of operations of NEE and its subsidiaries taken as a whole at the respective dates or for the respective periods to which they apply; such financial statements have been prepared in each case in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as otherwise indicated in the Pricing Disclosure Package, the Prospectus and the Registration Statement; and Deloitte & Touche LLP, who has audited the audited financial statements of NEE, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder.

 

(g)      Except as reflected in or contemplated by the Pricing Disclosure Package, since the respective most recent times as of which information is given in the Pricing Disclosure Package, there has not been any material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole, whether or not in the ordinary course of business, nor has any transaction been entered into by NEE or any of its subsidiaries that is material to NEE and its subsidiaries taken as a whole, other than changes and transactions contemplated by the Pricing Disclosure Package and transactions in the ordinary course of business. NEE and its subsidiaries have no contingent obligation material to NEE and its subsidiaries taken as a whole, which is not disclosed in or contemplated by the Pricing Disclosure Package.

8 

 

(h)      The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE, and the fulfillment of the terms hereof on the part of NEE to be fulfilled, have been duly authorized by all necessary corporate action of NEE in accordance with the provisions of its Restated Articles of Incorporation (the “NEE Charter”), its Amended and Restated Bylaws, as amended (the “NEE Bylaws”), and applicable law. [1The execution and delivery by NEE of this agreement and of a certificate or certificates for the Shares and the performance by NEE of its obligations under this agreement and under the Shares do not require any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than (i) those consents, approvals, authorizations, registrations or qualifications as have already been obtained and (ii) the filing of Articles of Amendment to the NEE Charter relating to the Shares with the appropriate office of the Department of State, State of Florida which shall be filed by NEE prior to the Closing Date.] [2The execution and delivery by NEE of this agreement and of the Guarantee Agreement did not require, and the performance by NEE of its obligations under this agreement and under the Guarantee Agreement does not require, any consent, approval, authorization, registration or qualification of or by any governmental agency or body other than (i) those consents, approvals, authorizations, registrations or qualifications as have already been obtained, (ii) in connection or in compliance with the provisions of the blue sky laws of any jurisdiction and (iii) the filing of Articles of Amendment to the NEE Capital Charter relating to the Shares with the appropriate office of the Department of State, State of Florida].

 

(i)        The execution and delivery of this agreement and the consummation of the transactions herein contemplated by NEE [1and] [2,] the fulfillment of the terms hereof on the part of NEE to be fulfilled [2and the compliance by NEE with all the terms and provisions of the Guarantee Agreement] will not result in a breach of any of the terms or provisions of, or constitute a default under, the NEE Charter or the NEE Bylaws, or any indenture, mortgage, deed of trust or other agreement or instrument to which NEE or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to NEE or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over NEE or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of NEE and its subsidiaries taken as a whole.

 

(j)        NEE or one or more of its direct or indirect subsidiaries owns all of the common stock (with respect to those subsidiaries which are organized as corporations) or other ownership interests (with respect to those subsidiaries which are organized as limited liability companies or limited partnerships) in NEE’s direct or indirect significant subsidiaries (as defined in Regulation S-X [1(17 CFR Part 210) (“Regulation S-X”)]) free and clear of all liens, encumbrances and adverse claims, except such as do not materially affect the value thereof and, in the case of any such significant subsidiary that is a limited partnership, except as may otherwise be provided in the applicable limited partnership agreement. NEE’s direct and indirect significant subsidiaries (as defined in Regulation S-X) are [insert names of significant subsidiaries].

9 

 

(k)      NEE and each of its direct and indirect significant subsidiaries (as defined in Regulation S-X) has been duly organized, is validly existing and is in good standing under the laws of its respective jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation or other entity in each jurisdiction in which its respective ownership of properties or the conduct of its respective businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of NEE and its subsidiaries taken as a whole, and has the power and authority as a corporation or other entity necessary to own or hold its respective properties and to conduct the businesses in which it is engaged.

 

(l)       [2The Guarantee Agreement (i) has been duly authorized by NEE by all necessary corporate action and, when executed and delivered by NEE, will be a valid and binding instrument enforceable against NEE in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.]

 

(m)      [1The Shares conform in all material respect to the description thereof in the Pricing Disclosure Package and the Prospectus.]

 

(n)      [1The Preferred Stock has been validly authorized and, when issued and delivered by NEE against payment therefor in accordance with the provisions of this agreement, will be fully paid and non-assessable.]

 

(o)      [1The Preferred Stock will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.]

 

(p)      NEE is not, and after giving effect to the offering and sale of the Preferred Stock and the application of the proceeds from the sale of the Preferred Stock as described in the Pricing Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the [1Investment Company Act of 1940, as amended (“][21940 Act[1”)].

 

(q)     Except as described in the Pricing Disclosure Package and the Prospectus, NEE or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of NEE and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on NEE and its subsidiaries taken as a whole.

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(r)        The interactive data in eXtensible Business Reporting Language filed as exhibits to NEE’s Form 10-K for the year ended ______ [and Form 10-Q[s] for the quarter[s] ended ______, ______ and ______] fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

4.           Purchase and Sale. Subject to the terms and conditions in this agreement (including the representations and warranties herein contained), NEE [2and NEE Capital agree] [1agrees] to sell to the respective Underwriters named in Schedule II hereto, severally and not jointly, and the respective Underwriters agree, severally and not jointly, to purchase from [1NEE] [2NEE Capital] for an aggregate purchase price of $__________, the respective number of Shares set forth opposite their respective names in Schedule II hereto.

 

The Underwriters agree to make a bona fide public offering of the Shares, as set forth in the Pricing Disclosure Package, such public offering to be made as soon after the execution of this agreement as practicable, subject, however, to the terms and conditions of this agreement. The Underwriters have advised [1NEE] [2NEE Capital] that the Shares will be offered to the public at the Price per Share set forth in the Pricing Term Sheet as the Price to Public and to certain dealers selected by the Representatives at a price which represents a concession. Such dealers’ concession may not be in excess of $____ per Share.

 

Each Underwriter agrees that (i) no information that is presented by it to investors has been or will be inconsistent with the information contained in the Pricing Disclosure Package as it may then be amended or supplemented and (ii) it will make no offer that would constitute a Free Writing Prospectus that is required to be filed by NEE [2or NEE Capital] pursuant to Rule 433 other than an Issuer Free Writing Prospectus in accordance with Section [6(h)] hereof. References to the term “Free Writing Prospectus” means a free writing prospectus as defined in Rule 405.

 

5.           Time, Date and Place of Closing, Default of the Underwriters. Delivery of the Shares and payment therefor by wire transfer in federal funds shall be made at 9:00 A.M., New York City time, on the settlement date set forth on Schedule I, at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, or at such other time, date or place as may be agreed upon in writing by NEE [2, NEE Capital] and the Representatives. The time and date of such delivery and payment are herein called the “Closing Date.”

 

The Shares shall be delivered to the Representatives for the respective accounts of the Underwriters against payment by the several Underwriters through the Representatives of the purchase price therefor. Delivery of the Shares shall be made through the facilities of DTC unless [1NEE] [2NEE and NEE Capital] and the Representatives shall otherwise agree. For the purpose of expediting the checking of the Shares by the Representatives on behalf of the Underwriters, [1NEE] [2NEE Capital] (if delivery of the Shares shall be made otherwise than through the facilities of DTC) agrees to make such Shares available to the Representatives for such purpose at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, not later than 2:00 P.M., New York City time, on the business day preceding the Closing Date, or at such other time, date or place as may be agreed upon by [1NEE] [2 NEE Capital] and the Representatives.

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If any Underwriter shall fail to purchase and pay for the number of the Shares which such Underwriter has agreed to purchase and pay for hereunder (otherwise than by reason of any failure on the part of NEE [2or NEE Capital] to comply with any of the provisions contained herein), the non-defaulting Underwriters shall be obligated to purchase and pay for (in addition to the respective number of the Shares set forth opposite their respective names in Schedule II hereto) the number of the Shares which such defaulting Underwriter or Underwriters failed to purchase and pay for, up to a number thereof equal to, in the case of each such remaining Underwriter, ten percent (10%) of the aggregate number of the Shares set forth opposite the name of each such remaining Underwriter in said Schedule II, and such remaining Underwriters shall have the right, within 24 hours of receipt of such notice, either to (i) purchase and pay for (in such proportion as may be agreed upon among them) the remaining number of the Shares which the defaulting Underwriter or Underwriters agreed but failed to purchase, or (ii) substitute another Underwriter or Underwriters, satisfactory to NEE [2and NEE Capital], to purchase and pay for the remaining number of the Shares which the defaulting Underwriter or Underwriters agreed but failed to purchase. If any of the Shares would still remain unpurchased, then [1NEE] [2NEE Capital] shall be entitled to a further period of 24 hours within which to procure another party or other parties that (i) are members of the Financial Industry Regulatory Authority, Inc. or else are not eligible for membership in said Authority but who agree (A) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (B) in making sales to comply with said Authority’s Conduct Rules, and (ii) are satisfactory to the Representatives to purchase such Shares on the terms herein set forth. In the event that, within the respective prescribed periods, (i) the non-defaulting Underwriters notify [1NEE] [2NEE Capital] that they have arranged for the purchase of such Shares or (ii) [1NEE] [2NEE Capital] notifies the non-defaulting Underwriters that it has arranged for the purchase of such Shares, the non-defaulting Underwriters or [1NEE] [2NEE Capital] shall have the right to postpone the Closing Date for a period of not more than three full business days beyond the expiration of the respective prescribed periods in order to effect whatever changes may thus be made necessary in the Registration Statement, the Prospectus or in any other documents or arrangements. In the event that neither the non-defaulting Underwriters nor [1NEE] [2NEE Capital] has arranged for the purchase of such Shares by another party or parties as above provided, then this agreement shall terminate without any liability on the part of NEE [2or NEE Capital] or any Underwriter (other than an Underwriter which shall have failed or refused, otherwise than for some reason sufficient to justify, in accordance with the terms hereof, the cancellation or termination of its obligations hereunder, to purchase and pay for the Shares which such Underwriter has agreed to purchase as provided in Section [4] hereof), except as otherwise provided in Section [6](d), Section[6](f) and Section [9] hereof.

 

6.           Covenants of NEE [2and NEE Capital]. NEE [2and NEE Capital] [1agrees] [2agree] with the several Underwriters that:

 

(a)       NEE [2and NEE Capital] will timely file the Prospectus and any preliminary prospectus supplement used in connection with the offering of the Securities with the Commission pursuant to Rule 424. NEE [2 and NEE Capital] have complied and will comply with Rule 433 in connection with the offering and sale of the Shares, including applicable provisions in respect of timely filing with the Commission, legending and record-keeping.

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(b)      NEE [2and NEE Capital] will prepare a final term sheet, containing a description of the pricing terms of the Shares, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433.

 

(c)      [1NEE] [2NEE Capital] will, upon request, deliver to the Representatives and to Counsel for the Underwriters (as defined below) one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of [1NEE] [2NEE Capital] to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Shares, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date hereof, [1NEE] [2NEE Capital] will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus and any Issuer Free Writing Prospectus as the Representatives may reasonably request for the purposes contemplated by the Securities Act.

 

(d)      [1NEE] [2NEE Capital] has paid or caused to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus supplement, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Shares as provided in Section [5] hereof, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus supplement, the Prospectus [1and] [2,] any Issuer Free Writing Prospectus [2and the Guarantee Agreement]. [1NEE] [2NEE Capital] will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Shares. [1NEE] [2Neither NEE nor NEE Capital] shall [1not], however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters (other than in accordance with the provisions of Section [10] hereof), except that if this agreement shall be terminated in accordance with the provisions of Section [7], Section [8] or Section [10] hereof, [1NEE] [2NEE Capital] will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and [1NEE] [2NEE Capital] shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. [2Neither] NEE [2nor NEE Capital] shall [1not] in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.

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(e)       During a period of nine months after the date hereof, if any event relating to or affecting NEE [2or NEE Capital] shall occur which, in the opinion of NEE [2or NEE Capital], should be set forth in a supplement to or an amendment to the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus, in the light of the circumstances pertaining when it is delivered to a purchaser, not misleading. [1NEE] [2NEE Capital] will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend the Prospectus so that as supplemented or amended it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances pertaining when the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date hereof, [1NEE] [2NEE Capital] upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.

 

(f)       [1NEE] [2 and NEE Capital] will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Shares [2(including the guarantee pursuant to the Guarantee Agreement)] for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that [2neither] NEE [2nor NEE Capital] shall [1not] be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet other requirements deemed by NEE [2or NEE Capital] to be unduly burdensome.

 

(g)      NEE will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders (including holders of the Preferred Stock [2as guaranteed by the Guarantee Agreement]) as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.

 

(h)      Prior to the termination of the offering of the Shares, [2neither] NEE [2nor NEE Capital] will [1not] file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton Andrews Kurth LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. [2Neither] NEE [1has not] [2nor NEE Capital have] made any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by NEE [2or NEE Capital] with the Commission or retained by NEE [2or NEE Capital] pursuant to Rule 433, other than a pricing term sheet substantially in the form as set forth on Schedule I, and [2neither] NEE [2nor NEE Capital] will [1not] make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters.

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(i)        NEE [2and NEE Capital] will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Shares, of official notice of the institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.

 

(j)        If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then pertaining, not misleading, [1NEE] [2NEE Capital] promptly will notify the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.

 

(k)      [1NEE] [2NEE Capital] will use its commercially reasonable best efforts to deliver, in appropriate form for filing, to the Department of State, State of Florida, on or before the Closing Date the articles of amendment required by Section 607.0602, Florida Statues, relating to the Shares, and will use its commercially reasonable best efforts to have such articles of amendment accepted for filing by such Department of State on or before the Closing Date.

 

7.           Conditions of Underwriters’ Obligations to Purchase and Pay for the Shares. The several obligations of the Underwriters to purchase and pay for the Shares shall be subject to the performance by NEE [2and NEE Capital] of [1its] [2their respective] obligations to be performed hereunder on or prior to the Closing Date and to the following conditions:

 

(a)      The [2respective] representations and warranties made by NEE [2and NEE Capital] herein and qualified by materiality shall be true and correct in all respects and the [2respective] representations and warranties made by NEE [2and NEE Capital] herein that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date, in each case, as if made on and as of such date and the Representatives shall have received, prior to payment for the Shares, a certificate from [2each of] NEE [2and NEE Capital] dated the Closing Date and signed by an officer of NEE [2and NEE Capital, as the case may be,] to that effect.

15 

 

(b)      No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by NEE [2or NEE Capital] and not removed by the Closing Date; and the Representatives shall have received, prior to payment for the Shares, a certificate from [2each of] NEE [2and NEE Capital] dated the Closing Date and signed by an officer of NEE [2and NEE Capital, as the case may be,] to the effect that, to the best of his or her knowledge, no such orders are in effect, no proceedings for either such purpose are pending before, or to the knowledge of NEE [2or NEE Capital, as the case may be,] threatened by, the Commission, and no such notice of objection has been received and not removed.

 

(c)       On the Closing Date, the Representatives shall have received from Squire Patton Boggs (US) LLP, counsel to NEE [2and NEE Capital], Morgan, Lewis & Bockius LLP, counsel to NEE [2and NEE Capital], and Hunton Andrews Kurth LLP, Counsel for the Underwriters, opinions (with a copy for each of the Underwriters) in substantially the form and substance prescribed in Schedule IV, Schedule V, and Schedule VI hereto (i) with such changes therein as may be agreed upon by NEE [2, NEE Capital] and the Representatives, with the approval of Counsel for the Underwriters, and (ii) if the Prospectus relating to the Shares shall be supplemented or amended after the Prospectus shall have been filed with the Commission pursuant to Rule 424, with any changes therein necessary to reflect such supplementation or amendment.

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(d)      On the date hereof and on the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters (which may refer to letters previously delivered to the Representatives) (with copies thereof for each of the Underwriters) dated the respective dates of delivery thereof to the effect that (i) they are an independent registered public accounting firm with respect to NEE within the meaning of the Securities Act and the Exchange Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the consolidated financial statements of NEE audited by them and incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder; (iii) on the basis of performing a review of interim financial information as described in the Public Company Accounting Oversight Board (United States) (“PCAOB”) AS 4105, Reviews of Interim Financial Information, on the unaudited [condensed] consolidated financial statements of NEE, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, a reading of the latest available interim unaudited [condensed] consolidated financial statements of NEE, if any, since the close of NEE’s most recent audited fiscal year, a reading of the minutes and consents of the Board of Directors, the Audit Committee of the Board of Directors and the Finance & Investment Committee of the Board of Directors and of the shareholders of NEE [2and the minutes and consents of the Board of Directors and of the shareholder of NEE Capital] since the end of the most recent audited fiscal year, and inquiries of officials of NEE who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Underwriters’ purposes), nothing has come to their attention which caused them to believe that (a) the unaudited [condensed] consolidated financial statements of NEE, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, (1) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder and (2) except as disclosed in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements of NEE incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable; (b) at the date of the latest available interim balance sheet read by them and at a specified date not more than five days prior to the date of such letter, there was any change in the capital stock or increase in long-term debt including current maturities and excluding fair value swaps, if any, and unamortized premium and discount on long-term debt of NEE and its subsidiaries, or decrease in common shareholders’ equity of NEE and its subsidiaries, in each case as compared with amounts shown in the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, except in all instances for changes, increases or decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or as occasioned by the declaration, provision for, or payment of dividends, or as occasioned by the issuance, forfeiture or acquisition of common stock pursuant to or in connection with any employee or director benefit or compensation plan or the dividend reinvestment and direct stock purchase plan or which are described in such letter; or (c) for the period from the date of the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, to the latest available interim balance sheet read by them and for the period from the date of the latest available interim balance sheet read by them to a specified date not more than five days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated operating revenues or in net income, except in all instances for decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or which are described in such letter; and (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to certain amounts included in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, and such items as the Representatives may reasonably request.

 

(e)       Since the respective most recent times as of which information is given in the Pricing Disclosure Package, and up to the Closing Date, (i) there shall have been no material adverse change in the business, properties or financial condition of [2(a) NEE Capital and its subsidiaries taken as a whole or (b)] NEE and its subsidiaries taken as a whole, except [2in each case] as disclosed in or contemplated by the Pricing Disclosure Package, and (ii) there shall have been no transaction entered into by [2(a) NEE Capital or any of its subsidiaries that is material to NEE Capital and its subsidiaries taken as a whole or (b)] NEE or any of its subsidiaries that is material to NEE and its subsidiaries taken as a whole, [2in each case] other than transactions disclosed in or contemplated by the Pricing Disclosure Package, and transactions in the ordinary course of business; and at the Closing Date, the Representatives shall have received a certificate to such effect from [2each of NEE Capital and] NEE signed by an officer of [2NEE Capital or] NEE[2, as the case may be].

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(f)       All legal proceedings to be taken in connection with the issuance and sale of the Shares [2(including the guarantee pursuant to the Guarantee Agreement)] shall have been satisfactory in form and substance to Counsel for the Underwriters.

 

(g)      [The Shares shall have been approved for listing on The New York Stock Exchange LLC (“NYSE”) upon official notice of issuance.]

 

In case any of the conditions specified above in this Section [7] shall not have been fulfilled, this agreement may be terminated by the Representatives upon mailing or delivering written notice thereof to NEE [2and NEE Capital]. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section [6](d) and Section [6](f) hereof.

 

8.           Condition of NEE’s [2and NEE Capital’s] Obligations. The [1obligation] [2obligations] of NEE [2 Capital and NEE] to deliver the Shares [2and the Guarantee Agreement, respectively] shall be subject to the following condition:

 

(a)       No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by NEE [2or NEE Capital] and not removed by the Closing Date.

 

In case the condition specified above in this Section [8] shall not have been fulfilled, this agreement may be terminated by NEE [2and NEE Capital] upon mailing or delivering written notice thereof to the Representatives. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section [6](d) and Section [6](f) hereof.

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9.           Indemnification.

 

(a)       NEE [2and NEE Capital, jointly and severally, agree] [1agrees] to indemnify and hold harmless each Underwriter, each officer and director of each Underwriter and each person (a “Controlling Person”) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each such Underwriter, officer, director and Controlling Person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, including all Incorporated Documents, or in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this Section [9](a) shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished in writing, to NEE [2or NEE Capital] by or on behalf of any Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof, or arising out of, or based upon, statements in or omissions from the Statements of Eligibility; and provided, further, that the indemnity agreement contained in this Section [9](a) in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall not inure to the benefit of any Underwriter (or of any officer or director or Controlling Person of such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of the Shares to any person in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may be then supplemented or amended, furnished by such Underwriter to a person to whom any of the Shares were sold (excluding in all cases, however, any document then incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement made in or omission from such preliminary prospectus supplement, Pricing Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a supplement or amendment to such preliminary prospectus supplement, Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus (excluding in all cases, however, any document then incorporated by reference therein) (i) is furnished on a timely basis by [2NEE Capital or] NEE to the Underwriter, (ii) is required by law or regulation to have been conveyed to such person by or on behalf of such Underwriter, at or prior to the entry into the contract of sale of the Shares with such person, but was not so conveyed (which conveyance may be oral or written) by or on behalf of such Underwriter and (iii) would have cured the defect giving rise to such loss, claim, damage or liability. The indemnity agreement of NEE [2and NEE Capital] contained in this Section [9](a) and the representations and warranties of NEE [2and NEE Capital] contained in [1Section 2] [2Section 2 and Section 3] hereof, [2respectively,] shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Shares. Each Underwriter agrees promptly to notify [2each of] NEE [2and NEE Capital], and each other Underwriter, of the commencement of any litigation or proceedings against the notifying Underwriter, or any of its officers, directors or Controlling Persons in connection with the issuance and sale of the Shares.

19 

 

(b)      Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless [2each of] NEE [2and NEE Capital], [2their respective] [1its] officers and directors, and each person who controls NEE [2or NEE Capital, as the case may be] within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon and in conformity with information furnished in writing to NEE [2or NEE Capital] by or on behalf of such Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof. The Underwriters hereby furnish to NEE [2and NEE Capital] in writing expressly for use in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus, the following: [insert information provided by the Underwriters]. NEE [2and NEE Capital each acknowledge] [1acknowledges] that the statements identified in the preceding [____] sentence[s] constitute the only information furnished in writing by or on behalf of the several Underwriters expressly for inclusion in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus. The respective indemnity agreement of each Underwriter contained in this Section [9](b) shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of NEE [2or NEE Capital] or any of [2their respective] [1its] officers or directors or any person who controls NEE [2or NEE Capital] within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of any other Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Shares. NEE [2and NEE Capital agree] [1agrees] promptly to notify the Representatives of the commencement of any litigation or proceedings against NEE [2, NEE Capital] (or of [1its] [2their respective] controlling persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) or any of [1its] [2their respective] officers or directors in connection with the issuance and sale of the Shares.

20 

 

(c)       NEE [2, NEE Capital] and each of the several Underwriters each agree that, upon the receipt of notice of the commencement of any action against it, its officers and directors, or any person controlling it as aforesaid, in respect of which indemnity or contribution may be sought under the provisions of this Section [9], it will promptly give written notice of the commencement thereof to the party or parties against whom indemnity or contribution shall be sought thereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party otherwise than on account of this indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall elect not to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and counsel for the indemnifying party shall have reasonably concluded that there may be a conflict of interest involved in the representation by such counsel of both the indemnifying party and the indemnified party, the indemnified party or parties shall have the right to select separate counsel, satisfactory to the indemnifying party or parties, to participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party or parties (it being understood, however, that the indemnifying party or parties shall not be liable for the expenses of more than one separate counsel representing the indemnified parties who are parties to such action). NEE [2, NEE Capital] and each of the several Underwriters each agree that without the prior written consent of the other parties to such action who are parties to this agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section [9], unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

 

(d)      If, or to the extent, the indemnification provided for in Section [9](a) or Section[9](b) hereof shall be unenforceable under applicable law by an indemnified party, each indemnifying party agrees to contribute to such indemnified party with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in Section [9](a) or Section [9](b) hereof shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of NEE [2and NEE Capital] on the one hand and the Underwriters on the other hand in connection with the statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by NEE [2and NEE Capital] on the one hand and the Underwriters on the other hand from the offering of the Shares pursuant to this agreement, and (iii) any other relevant equitable considerations; provided, however, that no indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any indemnifying party not guilty of such fraudulent misrepresentation. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by NEE [2and NEE Capital] or the Underwriters and each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. NEE [2, NEE Capital] and each of the Underwriters each agree that it would not be just and equitable if contribution pursuant to this Section [9](d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section [9](d), no Underwriter shall be required to contribute in excess of the amount equal to the excess of (i) the total price at which the Shares underwritten by it were offered to the public, over (ii) the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Underwriter to contribute pursuant to this Section [9](d) are several and not joint and shall be in the same proportion as such Underwriter’s obligation to underwrite the Shares is to the total number of the Shares set forth in Schedule II hereto.

21 

 

10.       Termination. This agreement may be terminated by the Representatives by delivering written notice thereof to [1NEE] [2and NEE Capital], at any time prior to the Closing Date, if after the date hereof and at or prior to the Closing Date:

 

(a)       (i) there shall have occurred any general suspension of trading in securities on [The New York Stock Exchange LLC (the “NYSE”)] [the NYSE] or there shall have been established by the NYSE or by the Commission or by any federal or state agency or by the decision of any court any limitation on prices for such trading or any general restrictions on the distribution of securities, or trading in any securities of NEE [2or NEE Capital] shall have been suspended or limited by any exchange located in the United States or on the over-the-counter market located in the United States or a general banking moratorium declared by New York or federal authorities or (ii) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities, including, but not limited to, an escalation of hostilities which existed prior to the date hereof, any other national or international calamity or crisis or any material adverse change in financial, political or economic conditions affecting the United States, the effect of any such event specified in this clause (ii) being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Shares as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Shares[; or

 

(b)      (i) there shall have been any downgrading or any notice of any intended or potential downgrading in the ratings accorded to the Shares or any preferred stock of NEE [2Capital] which are of the same class as the Shares by either [Moody’s Investors Service, Inc. (“Moody’s”)] or [S&P Global Ratings, a division of S&P Global Inc. (“S&P”)], or (ii) either [Moody’s] or [S&P] shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Shares or any preferred stock of NEE [2Capital] which are of the same class as the Shares, the effect of any such event specified in (i) or (ii) above being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Shares as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Shares].

22 

 

This agreement may also be terminated at any time prior to the Closing Date if in the judgment of the Representatives the subject matter of any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus prepared and furnished by NEE [2and NEE Capital] after the date hereof reflects a material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole [2or NEE Capital and its subsidiaries taken as a whole] which renders it either inadvisable to proceed with such offering, if any, or inadvisable to proceed with the delivery of the Shares to be purchased hereunder. Any termination of this agreement pursuant to this Section [10] shall be without liability of any party to any other party except as otherwise provided in Section [6](d) and Section [6](f) hereof.

 

11.          Miscellaneous.

 

(a)       The validity and interpretation of this agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles thereunder. This agreement shall inure to the benefit of, and be binding upon, NEE [2, NEE Capital], the several Underwriters and, with respect to the provisions of Section [9] hereof, each officer, director or controlling person referred to in said Section [9], and their respective successors. Nothing in this agreement is intended or shall be construed to give to any other person or entity any legal or equitable right, remedy or claim under or in respect of this agreement or any provision herein contained. The term “successors” as used in this agreement shall not include any purchaser, as such purchaser, of any Shares from any of the several Underwriters.

 

(b)      NEE [2and NEE Capital each acknowledge and agree] [1acknowledges and agrees] that the Underwriters are acting solely in the capacity of arm’s length contractual counterparties to NEE [2and NEE Capital] with respect to the offering of the Shares as contemplated by this agreement and not as financial advisors or fiduciaries to NEE [2or NEE Capital] in connection herewith. Additionally, none of the Underwriters is advising NEE [2or NEE Capital] as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction in connection with the offering of the Shares as contemplated by this agreement. Any review by the Underwriters of NEE [2and NEE Capital] in connection with the offering of the Preferred Stock contemplated by this agreement and the transactions contemplated by this agreement will not be performed on behalf of NEE [2and NEE Capital].

 

12.       Notices. All communications hereunder shall be in writing and, if to the Underwriters, shall be mailed or delivered to the Representatives at the address set forth in Schedule II hereto, or, if to NEE [2or NEE Capital], shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.

23 

 

13.         Counterparts. This agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

14.         Recognition of the U.S. Special Resolution Regimes.

 

(a)           In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this agreement, and any interest and obligation in or under this agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)          In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this agreement were governed by the laws of the United States or a state of the United States.

 

(c)           For purpose of this Section [14], (A) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) the term “Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) the term “U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

24 

 

If the foregoing correctly sets forth our understanding, please indicate your acceptance on behalf of the Underwriters in the space provided below for that purpose, whereupon this letter and your acceptance, on behalf of the Underwriters, shall constitute a binding agreement between [NEE][, NEE Capital] and the Underwriters.

 

  Very truly yours,
   
  NextEra Energy, Inc.
   
  By:   
    Name:
    Title:
   
  [2NextEra Energy Capital Holdings, Inc.
   
  By:  
    Name:
    Title:]
     
Accepted and delivered as of  
the date first above written by the  
Representatives on behalf of the Underwriters:
       
   
   
By:     
  Name:  
  Title:  

25 

 

SCHEDULE I

 

[Name of Issuer]

 

Pricing Term Sheet

 

[Date]

 

Issuer:

 

Designation:

Registration Format:

Number of Shares:

Designation:

Dividend Rate:

Price to Public:

Trade Date:

Settlement Date:

Redemption:

CUSIP/ ISIN Number: 

[Other Terms]

Expected Credit Ratings:*

Underwriters: 

___________

*A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.

 

The terms “___________” and “__________” have the meanings ascribed to those terms in the Issuer’s Preliminary Prospectus Supplement, dated ___________.

 

The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling __________ toll-free at __________ or __________ toll-free at __________.

 

 

SCHEDULE II

 

Representatives   Addresses
   
     
     
     
     
     

Underwriters

 

Number of Shares 

     
     
     
     
     
     
     
     
     
     
     
     
     
Total  
     

 

 

SCHEDULE III

 

PRICING DISCLOSURE PACKAGE

 

(1)         Base Prospectus, dated ________________

 

(2)         Preliminary Prospectus Supplement, dated _______________ (which shall be deemed to include the Incorporated Documents filed at or prior to the Applicable Time to the extent not superseded by Incorporated Documents filed at or prior to the Applicable Time)

 

(3)         Issuer Free Writing Prospectus

 

(a)       Pricing Term Sheet in the form attached as Schedule I to the Underwriting Agreement dated __________, as filed with the SEC

 

Exhibit 1(d)

 

Florida Power & Light Company

First Mortgage Bonds

______________________________

 

UNDERWRITING AGREEMENT

______________________________

 

[Date]

 

To the Representatives named in Schedule II
hereto, on behalf of the Underwriters
named in Schedule II hereto

 

Ladies and Gentlemen:

 

1.           Introductory. Florida Power & Light Company, a Florida corporation (“FPL”), proposes to issue and sell its first mortgage bonds (“First Mortgage Bonds”) of the series designation[s], with the terms and in the principal amount[s] specified in Schedule I hereto (the “Bonds”). FPL hereby confirms its agreement with the several Underwriters (as defined below) as set forth herein.

 

The term “Underwriters” as used herein shall be deemed to mean the entity or several entities named in Schedule II hereto and any underwriter substituted as provided in Section 5 hereof, and the term “Underwriter” shall be deemed to mean one of such Underwriters. If the entity or entities listed as a Representative in Schedule II hereto (the “Representatives”) are the same as the entity or entities listed as Underwriters in Schedule II hereto, then the terms “Underwriters” and “Representatives,” as used herein, shall each be deemed to refer to such entity or entities. The Representatives represent that they have been authorized by each Underwriter to enter into this agreement on behalf of such Underwriter and to act for it in the manner herein provided. All obligations of the Underwriters hereunder are several and not joint. If more than one entity is named as a Representative in Schedule II hereto, any action under or in respect of this agreement may be taken by such entities jointly as the Representatives or by one of the entities acting on behalf of the Representatives and such action will be binding upon all the Underwriters.

 

2.           Description of Bonds. The Bonds [of each series] will be a series of First Mortgage Bonds issued by FPL under its Mortgage and Deed of Trust, dated as of January 1, 1944, to Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as Trustee (the “Mortgage Trustee”), and The Florida National Bank of Jacksonville (now resigned), as heretofore supplemented and as it will be further supplemented by a supplemental indenture relating to the Bonds (the “Supplemental Indenture”) in substantially the form heretofore delivered to the Representatives. Such Mortgage and Deed of Trust as it has been and will be so supplemented is hereinafter called the “Mortgage.”

 

 

 

3.            Representations and Warranties of FPL. FPL represents and warrants to the several Underwriters that:

 

(a)       FPL has filed with the Securities and Exchange Commission (the “Commission”) a joint registration statement with NextEra Energy, Inc., a Florida corporation (“NEE”), and NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”), on Form S-3 (Registration Statement Nos. 333-______, 333-______-01 and 333-______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of FPL, threatened by the Commission. References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Bonds (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Bonds and (B) the first contract of sale of the Bonds), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to FPL forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Bonds deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Bonds, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the Bonds that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Bonds and otherwise satisfies Section 10(a) of the Securities Act.

2 

 

 

The prospectus supplement relating to the Bonds proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section 5 hereof), FPL may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Bonds.

 

(b)       The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act (“Rule 405”)) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by FPL and not removed; and with respect to the Bonds, FPL is a “well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of the definition of “well-known seasoned issuer” in Rule 405 and is not an “ineligible issuer” (as defined in Rule 405).

 

(c)       The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of the date hereof and at the Closing Date, and the Registration Statement and the Mortgage, at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of the date hereof and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(c) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to FPL by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”) or to any statements or omissions made in the Registration Statement or the Prospectus relating to The Depository Trust Company (“DTC”) Book-Entry-Only System [or the book-entry only systems of Clearstream Banking, société anonyme (“Clearstream”), or Euroclear Bank SA/NV, as operator of the Euroclear System (“Euroclear”)], that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]; and the Incorporated Documents, when filed with the Commission, fully complied or will fully comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable instructions, rules and regulations of the Commission thereunder.

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(d)      As of the Applicable Time (as defined below), the Pricing Disclosure Package (as defined below) did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(d) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to FPL by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus (as defined below), or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. References to the term “Pricing Disclosure Package” means the items listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act (“Rule 433”). References to the term “Applicable Time” means ____ [A.M./P.M.], New York City time, on [______] [the date hereof].

 

(e)       As of the Applicable Time, no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)       The financial statements included as part of or incorporated by reference in the Pricing Disclosure Package, the Prospectus and the Registration Statement present fairly the consolidated financial condition and results of operations of FPL and its subsidiaries taken as a whole at the respective dates or for the respective periods to which they apply; such financial statements have been prepared in each case in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as otherwise indicated in the Pricing Disclosure Package, the Prospectus and the Registration Statement; and Deloitte & Touche LLP, who has audited the audited financial statements of FPL, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder.

 

(g)      Except as reflected in or contemplated by the Pricing Disclosure Package, since the respective most recent times as of which information is given in the Pricing Disclosure Package, there has not been any material adverse change in the business, properties or financial condition of FPL and its subsidiaries taken as a whole, whether or not in the ordinary course of business, nor has any transaction been entered into by FPL or any of its subsidiaries that is material to FPL and its subsidiaries taken as a whole, other than changes and transactions contemplated by the Pricing Disclosure Package and transactions in the ordinary course of business. FPL and its subsidiaries have no contingent obligation material to FPL and its subsidiaries taken as a whole, which is not disclosed in or contemplated by the Pricing Disclosure Package.

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(h)         The execution and delivery of this agreement and the consummation of the transactions herein contemplated by FPL, and the fulfillment of the terms hereof on the part of FPL to be fulfilled, have been duly authorized by all necessary corporate action of FPL in accordance with the provisions of its Restated Articles of Incorporation, its Amended and Restated Bylaws and applicable law, and the Bonds when issued and delivered by FPL as provided herein will constitute valid and binding obligations of FPL enforceable against FPL in accordance with their terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting mortgagees’ and other creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought.

 

(i)          The execution and delivery of this agreement and the consummation of the transactions herein contemplated by FPL, the fulfillment of the terms hereof on the part of FPL to be fulfilled, and the compliance by FPL with all the terms and provisions of the Mortgage will not result in a breach of any of the terms or provisions of, or constitute a default under, FPL’s Restated Articles of Incorporation, its Amended and Restated Bylaws or any indenture, mortgage, deed of trust or other agreement or instrument to which FPL or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to FPL or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over FPL or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of FPL and its subsidiaries taken as a whole.

 

(j)          FPL has no direct or indirect significant subsidiaries (as defined in Regulation S-X (17 CFR Part 210)).

 

(k)         FPL has been duly organized, is validly existing and is in good standing under the laws of its jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership of properties or the conduct of its businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of FPL and its subsidiaries taken as a whole, and has the power and authority as a corporation necessary to own or hold its properties and to conduct the businesses in which it is engaged.

 

(l)         The Bonds will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(m)        The Mortgage (i) has been duly authorized by FPL by all necessary corporate action, has been duly executed and delivered by FPL and is a valid and binding instrument enforceable against FPL in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting mortgagees’ and other creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

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(n)       FPL is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds from the sale of the Bonds as described in the Pricing Disclosure Package and the Prospectus, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(o)       Except as described in the Pricing Disclosure Package and the Prospectus, FPL or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of FPL and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on FPL and its subsidiaries taken as a whole.

 

(p)       The interactive data in eXtensible Business Reporting Language filed as exhibits to FPL’s Form 10-K for the year ended ______ [and Form 10-Q[s] for the quarter[s] ended ______, ______ and ______] fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

4.          Purchase and Sale. Subject to the terms and conditions in this agreement (including the representations and warranties herein contained), FPL agrees to sell to the respective Underwriters named in Schedule II hereto, severally and not jointly, and the respective Underwriters agree, severally and not jointly, to purchase from FPL for an aggregate purchase price of $__________, the respective principal amount of the Bonds [of each series] set forth opposite their respective names in Schedule II hereto.

 

The Underwriters agree to make a bona fide public offering of the Bonds as set forth in the Pricing Disclosure Package, such public offering to be made as soon after the execution of this agreement as practicable, subject, however, to the terms and conditions of this agreement. The Underwriters have advised FPL that the Bonds will be offered to the public at the amount per Bond [of each series] as set forth in Schedule I hereto as the Price to Public for the Bonds [of each series] and to certain dealers selected by the Representatives at a price which represents a concession. Such dealers’ concession may not be in excess of _____% of the principal amount per Bond [of each series].

 

Each Underwriter agrees that (i) no information that is presented by it to investors has been or will be inconsistent with the information contained in the Pricing Disclosure Package as it may then be amended or supplemented and (ii) it will make no offer that would constitute a Free Writing Prospectus that is required to be filed by FPL pursuant to Rule 433 other than an Issuer Free Writing Prospectus in accordance with Section 6(h) hereof. References to the term “Free Writing Prospectus” means a free writing prospectus as defined in Rule 405.

 

5.           Time, Date and Place of Closing, Default of the Underwriters. Delivery of the Bonds [of each series] and payment therefor by wire transfer in federal funds shall be made at 9:00 A.M., New York City time, on the settlement date set forth on Schedule I, at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, or at such other time, date or place as may be agreed upon in writing by FPL and the Representatives. The time and date of such delivery and payment are herein called the “Closing Date.”

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The Bonds will be issued in the form of one or more global certificates in fully registered form. The Bonds shall be delivered to the Representatives for the respective accounts of the Underwriters against payment by the several Underwriters through the Representatives of the purchase price therefor. Delivery of the Bonds shall be made through the facilities of DTC unless FPL and the Representatives shall otherwise agree. For the purpose of expediting the checking of the Bonds by the Representatives on behalf of the Underwriters, FPL (if delivery of the Bonds shall be made otherwise than through the facilities of DTC) agrees to make such Bonds available to the Representatives for such purpose at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, not later than 2:00 P.M., New York City time, on the business day preceding the Closing Date, or at such other time, date or place as may be agreed upon by FPL and the Representatives.

 

If any Underwriter shall fail to purchase and pay for the principal amount of the Bonds [of each series] which such Underwriter has agreed to purchase and pay for hereunder (otherwise than by reason of any failure on the part of FPL to comply with any of the provisions contained herein), the non-defaulting Underwriters shall be obligated to purchase and pay for (in addition to the respective principal amount of the Bonds [of each series] set forth opposite their respective names in Schedule II hereto) the principal amount of the Bonds [of each series] which such defaulting Underwriter or Underwriters failed to purchase and pay for, up to a principal amount thereof equal to, in the case of each such remaining Underwriter, ten percent (10%) of the aggregate principal amount of the Bonds [of the series as to which there is a default and which are] set forth opposite the name of each such remaining Underwriter in said Schedule II, and such remaining Underwriters shall have the right, within 24 hours of receipt of such notice, either to (i) purchase and pay for (in such proportion as may be agreed upon among them) the remaining principal amount of the Bonds [of each series] which the defaulting Underwriter or Underwriters agreed but failed to purchase, or (ii) substitute another Underwriter or Underwriters, satisfactory to FPL, to purchase and pay for the remaining principal amount of the Bonds [of each series] which the defaulting Underwriter or Underwriters agreed but failed to purchase. If any of the Bonds would still remain unpurchased, then FPL shall be entitled to a further period of 24 hours within which to procure another party or other parties that (i) are members of the Financial Industry Regulatory Authority, Inc. or else are not eligible for membership in said Authority but who agree (A) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (B) in making sales to comply with said Authority’s Conduct Rules, and (ii) are satisfactory to the Representatives to purchase such Bonds on the terms herein set forth. In the event that, within the respective prescribed periods, (i) the non-defaulting Underwriters notify FPL that they have arranged for the purchase of such Bonds or (ii) FPL notifies the non-defaulting Underwriters that it has arranged for the purchase of such Bonds, the non-defaulting Underwriters or FPL shall have the right to postpone the Closing Date for a period of not more than three full business days beyond the expiration of the respective prescribed periods in order to effect whatever changes may thus be made necessary in the Registration Statement, the Prospectus or in any other documents or arrangements. In the event that neither the non-defaulting Underwriters nor FPL has arranged for the purchase of such Bonds by another party or parties as above provided, then this agreement shall terminate without any liability on the part of FPL or any Underwriter (other than an Underwriter which shall have failed or refused, otherwise than for some reason sufficient to justify, in accordance with the terms hereof, the cancellation or termination of its obligations hereunder, to purchase and pay for the Bonds which such Underwriter has agreed to purchase as provided in Section 4 hereof), except as otherwise provided in Section 6(d), Section 6(f) and Section 9 hereof.

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6.            Covenants of FPL. FPL agrees with the several Underwriters that:

 

(a)       FPL will timely file the Prospectus and any preliminary prospectus supplement used in connection with the offering of the Bonds with the Commission pursuant to Rule 424. FPL has complied and will comply with Rule 433 in connection with the offering and sale of the Bonds, including applicable provisions in respect of timely filing with the Commission, legending and record-keeping.

 

(b)       FPL will prepare a final term sheet, containing a description of the pricing terms of the Bonds, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433.

 

(c)       FPL will, upon request, deliver to the Representatives and to Counsel for the Underwriters (as defined below) one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of FPL to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Bonds, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date hereof, FPL will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus and any Issuer Free Writing Prospectus as the Representatives may reasonably request for the purposes contemplated by the Securities Act.

 

(d)       FPL has paid or caused to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus supplement, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Bonds as provided in Section 5 hereof, (iii) preparation, execution, filing and recording of the Supplemental Indenture and (iv) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and the Supplemental Indenture. FPL will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Bonds and recordation of the Supplemental Indenture. FPL shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters (other than in accordance with the provisions of Section 9 hereof), except that if this agreement shall be terminated in accordance with the provisions of Section 7, Section 8, or Section 10 hereof, FPL will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and FPL shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. FPL shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.

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(e)       During a period of nine months after the date hereof, if any event relating to or affecting FPL shall occur which, in the opinion of FPL, should be set forth in a supplement to or an amendment to the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus, in the light of the circumstances pertaining when it is delivered to a purchaser, not misleading, FPL will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend the Prospectus so that as supplemented or amended it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances pertaining when the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date hereof, FPL upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.

 

(f)        FPL will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that FPL shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet other requirements deemed by FPL to be unduly burdensome.

 

(g)       FPL will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders (including holders of the Bonds) as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.

 

(h)       Prior to the termination of the offering of the Bonds, FPL will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton Andrews Kurth LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. FPL has not made any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by FPL with the Commission or retained by FPL pursuant to Rule 433, other than a pricing term sheet substantially in the form as set forth on Schedule I, and FPL will not make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters.

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(i)        FPL will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Bonds, of official notice of the institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.

 

(j)        If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then pertaining, not misleading, FPL promptly will notify the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.

 

(k)       On or before the Closing Date, FPL will, if applicable, cause (i) at least one counterpart of the Supplemental Indenture to be duly recorded in the States of Florida, Georgia and Mississippi and (ii) all intangible and documentary stamp taxes due in connection with the issuance of the Bonds and the recording of the Supplemental Indenture to be paid. Within 30 days following the Closing Date, FPL will, if applicable, cause the Supplemental Indenture to be duly recorded in all other counties in which property of FPL which is subject to the lien of the Mortgage is located.

 

(l)        All the property to be subjected to the lien of the Mortgage will be adequately described therein.

 

7.           Conditions of Underwriters’ Obligations to Purchase and Pay for the Bonds. The several obligations of the Underwriters to purchase and pay for the Bonds shall be subject to the performance by FPL of its obligations to be performed hereunder on or prior to the Closing Date and to the following conditions:

 

(a)       The representations and warranties made by FPL herein and qualified by materiality shall be true and correct in all respects and the representations and warranties made by FPL herein that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date, in each case, as if made on and as of such date and the Representatives shall have received, prior to payment for the Bonds, a certificate from FPL dated the Closing Date and signed by an officer of FPL to that effect.

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(b)      No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by FPL and not removed by the Closing Date; and the Representatives shall have received, prior to payment for the Bonds, a certificate from FPL dated the Closing Date and signed by an officer of FPL to the effect that, to the best of his or her knowledge, no such orders are in effect, no proceedings for either such purpose are pending before, or to the knowledge of FPL threatened by, the Commission, and no such notice of objection has been received and not removed.

 

(c)      On the Closing Date, there shall be in full force and effect an authorization of the Florida Public Service Commission with respect to the issuance and sale of the Bonds on the terms herein stated or contemplated, and containing no provision unacceptable to the Representatives by reason of the fact that it is materially adverse to FPL, it being understood that no authorization provided to Counsel for the Underwriters and in effect at the date hereof contains any such unacceptable provision.

 

(d)      On the Closing Date, the Representatives shall have received from Squire Patton Boggs (US) LLP, counsel to FPL, Morgan, Lewis & Bockius LLP, counsel to FPL, and Hunton Andrews Kurth LLP, Counsel for the Underwriters, opinions (with a copy for each of the Underwriters) in substantially the form and substance prescribed in Schedule IV, Schedule V, and Schedule VI hereto (i) with such changes therein as may be agreed upon by FPL and the Representatives, with the approval of Counsel for the Underwriters, and (ii) if the Prospectus relating to the Bonds shall be supplemented or amended after the Prospectus shall have been filed with the Commission pursuant to Rule 424, with any changes therein necessary to reflect such supplementation or amendment.

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(e)       On the date hereof and on the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters (which may refer to letters previously delivered to the Representatives) (with copies thereof for each of the Underwriters) dated the respective dates of delivery thereof to the effect that (i) they are an independent registered public accounting firm with respect to FPL within the meaning of the Securities Act and the Exchange Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the consolidated financial statements of FPL audited by them and incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder; (iii) on the basis of performing a review of interim financial information as described in the Public Company Accounting Oversight Board (United States) (“PCAOB”) AS 4105, Reviews of Interim Financial Information, on the unaudited [condensed] consolidated financial statements of FPL, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, a reading of the latest available interim unaudited [condensed] consolidated financial statements of FPL, if any, since the close of FPL’s most recent audited fiscal year, a reading of the minutes and consents of the Board of Directors, the Finance Committee of the Board of Directors and the Stock Issuance Committee of the Board of Directors and of the sole common shareholder of FPL since the end of the most recent audited fiscal year, and inquiries of officials of FPL who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Underwriters’ purposes), nothing has come to their attention which caused them to believe that (a) the unaudited [condensed] consolidated financial statements of FPL, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, (1) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder and (2) except as disclosed in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements of FPL incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable; (b) at the date of the latest available interim balance sheet read by them and at a specified date not more than five days prior to the date of such letter, there was any change in the common stock or additional paid-in capital or increase in the preferred stock or long-term debt including current maturities and excluding fair value swaps, if any, and unamortized premium and discount on long-term debt of FPL and its subsidiaries, or decrease in common shareholder’s equity of FPL and its subsidiaries, in each case as compared with amounts shown in the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, except in all instances for changes, increases or decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or as occasioned by the declaration, provision for, or payment of dividends, or which are described in such letter; or (c) for the period from the date of the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, to the latest available interim balance sheet read by them and for the period from the date of the latest available interim balance sheet read by them to a specified date not more than five days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated operating revenues or in net income, except in all instances for decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or which are described in such letter; and (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to such items as the Representatives may reasonably request.

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(f)        Since the respective most recent times as of which information is given in the Pricing Disclosure Package, and up to the Closing Date, (i) there shall have been no material adverse change in the business, properties or financial condition of FPL and its subsidiaries taken as a whole, except as disclosed in or contemplated by the Pricing Disclosure Package, and (ii) there shall have been no transaction entered into by FPL or any of its subsidiaries that is material to FPL and its subsidiaries taken as a whole, other than transactions disclosed in or contemplated by the Pricing Disclosure Package, and transactions in the ordinary course of business; and at the Closing Date the Representatives shall have received a certificate to such effect from FPL signed by an officer of FPL.

 

(g)       All legal proceedings to be taken in connection with the issuance and sale of the Bonds shall have been satisfactory in form and substance to Counsel for the Underwriters.

 

In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this agreement may be terminated by the Representatives upon mailing or delivering written notice thereof to FPL. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section 6(d) and Section 6(f) hereof.

 

8.           Conditions of FPL’s Obligations. The obligation of FPL to deliver the Bonds shall be subject to the following conditions:

 

(a)       No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by FPL and not removed by the Closing Date.

 

(b)       On the Closing Date, there shall be in full force and effect an authorization of the Florida Public Service Commission with respect to the issuance and sale of the Bonds on the terms herein stated or contemplated, and containing no provision unacceptable to FPL by reason of the fact that it is materially adverse to FPL, it being understood that no authorization in effect at the date hereof contains any such unacceptable provision.

 

In case the conditions specified above in this Section 8 shall not have been fulfilled, this agreement may be terminated by FPL upon mailing or delivering written notice thereof to the Representatives. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section 6(d) and Section 6(f) hereof.

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9.           Indemnification.

 

(a)       FPL agrees to indemnify and hold harmless each Underwriter, each officer and director of each Underwriter and each person (a “Controlling Person”) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and to reimburse each such Underwriter, officer, director and Controlling Person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, including all Incorporated Documents, or in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this Section 9(a) shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished in writing, to FPL by or on behalf of any Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof, or arising out of, or based upon, statements in or omissions from the Statements of Eligibility; and provided, further, that the indemnity agreement contained in this Section 9(a) in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall not inure to the benefit of any Underwriter (or of any officer or director or Controlling Person of such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of the Bonds [of any series] to any person in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may be then supplemented or amended, furnished by such Underwriter to a person to whom any of the Bonds were sold (excluding in all cases, however, any document then incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement made in or omission from such preliminary prospectus supplement, Pricing Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a supplement or amendment to such preliminary prospectus supplement, Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus (excluding in all cases, however, any document then incorporated by reference therein) (i) is furnished on a timely basis by FPL to the Underwriter, (ii) is required by law or regulation to have been conveyed to such person by or on behalf of such Underwriter, at or prior to the entry into the contract of sale of the Bonds with such person, but was not so conveyed (which conveyance may be oral or written) by or on behalf of such Underwriter and (iii) would have cured the defect giving rise to such loss, claim, damage or liability. The indemnity agreement of FPL contained in this Section 9(a) and the representations and warranties of FPL contained in Section 3 hereof shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Bonds [of each series]. Each Underwriter agrees promptly to notify FPL, and each other Underwriter, of the commencement of any litigation or proceedings against the notifying Underwriter, or any of its officers, directors or Controlling Persons, in connection with the issuance and sale of the Bonds [of any series].

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(b)       Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless FPL, its officers and directors, and each person who controls FPL within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon and in conformity with information furnished in writing to FPL by or on behalf of such Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof. The Underwriters hereby furnish to FPL in writing, expressly for use in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus, the following: [insert information provided by the Underwriters]. FPL acknowledges that the statements identified in the preceding [___] sentences[s] constitute the only information furnished in writing by or on behalf of the several Underwriters expressly for inclusion in the preliminary prospectus supplement, dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus. The respective indemnity agreement of each Underwriter contained in this Section 9(b) shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of FPL or any of its officers or directors or any person who controls FPL within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of any other Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Bonds [of each series]. FPL agrees promptly to notify the Representatives of the commencement of any litigation or proceedings against FPL (or any of its controlling persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) or any of its officers or directors in connection with the issuance and sale of the Bonds [of any series].

15 

 

 

(c)      FPL and each of the several Underwriters each agree that, upon the receipt of notice of the commencement of any action against it, its officers and directors, or any person controlling it as aforesaid, in respect of which indemnity or contribution may be sought under the provisions of this Section 9, it will promptly give written notice of the commencement thereof to the party or parties against whom indemnity or contribution shall be sought thereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party otherwise than on account of this indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall elect not to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and counsel for the indemnifying party shall have reasonably concluded that there may be a conflict of interest involved in the representation by such counsel of both the indemnifying party and the indemnified party, the indemnified party or parties shall have the right to select separate counsel, satisfactory to the indemnifying party or parties, to participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party or parties (it being understood, however, that the indemnifying party or parties shall not be liable for the expenses of more than one separate counsel representing the indemnified parties who are parties to such action). FPL and each of the several Underwriters each agree that without the prior written consent of the other parties to such action who are parties to this agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section 9, unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

 

(d)      If, or to the extent, the indemnification provided for in Section 9(a) or Section 9(b) hereof shall be unenforceable under applicable law by an indemnified party, each indemnifying party agrees to contribute to such indemnified party with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in Section 9(a) or Section 9(b) hereof shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of FPL on the one hand and the Underwriters on the other hand in connection with the statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by FPL on the one hand and the Underwriters on the other hand from the offering of the Bonds pursuant to this agreement, and (iii) any other relevant equitable considerations; provided, however, that no indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any indemnifying party not guilty of such fraudulent misrepresentation. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by FPL or the Underwriters and each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. FPL and each of the Underwriters each agree that it would not be just and equitable if contribution pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 9(d), no Underwriter shall be required to contribute in excess of the amount equal to the excess of (i) the total price at which the Bonds underwritten by it were offered to the public, over (ii) the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Underwriter to contribute pursuant to this Section 9(d) are several and not joint and shall be in the same proportion as such Underwriter’s obligation to underwrite the Bonds [of the series with respect to which contribution is sought] is to the total principal amount of the Bonds [of such series] set forth in Schedule II hereto.

16 

 

 

10.        Termination. This agreement may be terminated by the Representatives by delivering written notice thereof to FPL, at any time prior to the Closing Date, if after the date hereof and at or prior to the Closing Date:

 

(a) (i)   there shall have occurred any general suspension of trading in securities on The New York Stock Exchange LLC (the “NYSE”) or there shall have been established by the NYSE or by the Commission or by any federal or state agency or by the decision of any court any limitation on prices for such trading or any general restrictions on the distribution of securities, or trading in any securities of FPL shall have been suspended or limited by any exchange located in the United States or on the over-the-counter market located in the United States or a general banking moratorium declared by New York or federal authorities or (ii) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities, including, but not limited to, an escalation of hostilities which existed prior to the date hereof, any other national or international calamity or crisis or any material adverse change in financial, political or economic conditions affecting the United States, the effect of any such event specified in this clause (ii) being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Bonds [of any series] as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Bonds [of any series]; or

 

(b) (i)   there shall have been any downgrading or any notice of any intended or potential downgrading in the ratings accorded to the Bonds [of any series] or any securities of FPL which are of the same class as the Bonds by either [Moody’s Investors Service, Inc. (“Moody’s”)] or [S&P Global Ratings, a division of S&P Global Inc. (“S&P”)], or (ii) either [Moody’s] or [S&P] shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Bonds [of any series] or any securities of FPL which are of the same class as the Bonds [of any series], the effect of any such event specified in (i) or (ii) above being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Bonds [of any series] as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Bonds [of any series].

17 

 

 

This agreement may also be terminated at any time prior to the Closing Date if in the judgment of the Representatives the subject matter of any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus prepared and furnished by FPL after the date hereof reflects a material adverse change in the business, properties or financial condition of FPL and its subsidiaries taken as a whole which renders it either inadvisable to proceed with such offering, if any, or inadvisable to proceed with the delivery of the Bonds [of any series] to be purchased hereunder. Any termination of this agreement pursuant to this Section 10 shall be without liability of any party to any other party except as otherwise provided in Section 6(d) and Section 6(f) hereof.

 

11.          Miscellaneous.

 

(a)          The validity and interpretation of this agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles thereunder. This agreement shall inure to the benefit of, and be binding upon, FPL, the several Underwriters and, with respect to the provisions of Section 9 hereof, each officer, director or controlling person referred to in said Section 9, and their respective successors. Nothing in this agreement is intended or shall be construed to give to any other person or entity any legal or equitable right, remedy or claim under or in respect of this agreement or any provision herein contained. The term “successors” as used in this agreement shall not include any purchaser, as such purchaser, of any Bonds from any of the several Underwriters.

 

(b)         FPL acknowledges and agrees that the Underwriters are acting solely in the capacity of arm’s length contractual counterparties to FPL with respect to the offering of the Bonds as contemplated by this agreement and not as financial advisors or fiduciaries to FPL in connection herewith. Additionally, none of the Underwriters is advising FPL as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction in connection with the offering of the Bonds as contemplated by this agreement. Any review by the Underwriters of FPL in connection with the offering of the Bonds contemplated by this agreement and the transactions contemplated by this agreement will not be performed on behalf of FPL.

 

12.        Notices. All communications hereunder shall be in writing and, if to the Underwriters, shall be mailed or delivered to the Representatives at the address set forth in Schedule II hereto, or, if to FPL, shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.

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13.         Counterparts. This agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

14.         Recognition of the U.S. Special Resolution Regimes.

 

(a)       In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this agreement, and any interest and obligation in or under this agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)      In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this agreement were governed by the laws of the United States or a state of the United States.

 

(c)       For purpose of this Section 14, (A) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) the term “Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) the term “U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

19 

 

If the foregoing correctly sets forth our understanding, please indicate your acceptance on behalf of the Underwriters in the space provided below for that purpose, whereupon this letter and your acceptance on behalf of the Underwriters shall constitute a binding agreement between FPL and the Underwriters.

 

  Very truly yours,
   
  Florida Power & Light Company
   
  By:   
    Name:
    Title:
   
Accepted and delivered as of  
the date first above written by the  
Representatives on behalf of the Underwriters
       
   
   
By:     
  Name:  
  Title:  

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SCHEDULE I

 

Florida Power & Light Company

 

Pricing Term Sheet

 

[Date]

 

Issuer: Florida Power & Light Company 

Designation:

Registration Format:

Principal Amount:

Date of Maturity:

Interest Payment Dates:

Coupon Rate:

Price to Public:

[Benchmark Treasury:

Benchmark Treasury Yield:

Spread to Benchmark

Treasury Yield:

Reoffer Yield:]

Redemption:

Trade Date:

Settlement Date:

CUSIP/ ISIN Number:

[Other Terms] 

Expected Credit Ratings:*

Underwriters: 

___________

*A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.

 

The terms “___________” and “__________” have the meanings ascribed to those terms in the Issuer’s Preliminary Prospectus Supplement, dated ___________.

 

The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling __________ toll-free at __________ or __________ toll-free at __________.

 

 

 

SCHEDULE II

 

Representatives   Addresses
   
     
     
     
     
     
Underwriters   Principal Amount
     
     
     
     
     
     
     
     
     
     
     
     
     
Total    
     

 

 

SCHEDULE III

 

PRICING DISCLOSURE PACKAGE

 

(1)         Base Prospectus, dated ________________

 

(2)         Preliminary Prospectus Supplement, dated _______________ (which shall be deemed to include the Incorporated Documents filed at or prior to the Applicable Time to the extent not superseded by Incorporated Documents filed at or prior to the Applicable Time)

 

(3)         Issuer Free Writing Prospectus

 

(a)       Pricing Term Sheet in the form attached as Schedule I to the Underwriting Agreement dated __________, as filed with the SEC

 

Exhibit 1(f)

 

Florida Power & Light Company

Notes1

______________________________

 

UNDERWRITING AGREEMENT

______________________________

 

[Date]

 

To the Representatives named in Schedule II
hereto, on behalf of the Underwriters
named in Schedule II hereto

 

Ladies and Gentlemen:

 

1.           Introductory. Florida Power & Light Company, a Florida corporation (“FPL”), proposes to issue and sell its debt securities of the series designation[s], with the terms and in the principal amount[s] specified in Schedule I hereto (the “Notes”). FPL hereby confirms its agreement with the several Underwriters (as defined below) as set forth herein.

 

The term “Underwriters” as used herein shall be deemed to mean the entity or several entities named in Schedule II hereto and any underwriter substituted as provided in Section 5 hereof, and the term “Underwriter” shall be deemed to mean one of such Underwriters. If the entity or entities listed as a Representative in Schedule II hereto (the “Representatives”) are the same as the entity or entities listed as Underwriters in Schedule II hereto, then the terms “Underwriters” and “Representatives,” as used herein, shall each be deemed to refer to such entity or entities. The Representatives represent that they have been authorized by each Underwriter to enter into this agreement on behalf of such Underwriter and to act for it in the manner herein provided. All obligations of the Underwriters hereunder are several and not joint. If more than one entity is named as a Representative in Schedule II hereto, any action under or in respect of this agreement may be taken by such entities jointly as the Representatives or by one of the entities acting on behalf of the Representatives and such action will be binding upon all the Underwriters.

 

2.           Description of Notes. The Notes [of each series] will be a series of notes issued by FPL pursuant to the Indenture [(For Unsecured Debt Securities)] [__________], dated as of [November 1, 2017] [__________], between FPL and The Bank of New York Mellon, as trustee (“Trustee”), a copy of which Indenture [has been heretofore] [will be] delivered to the Representatives (together with any amendments or supplements thereto, the “Indenture”).

 

 

1 Securities to be designated as debentures if debt securities are subordinated.

 

 

3.           Representations and Warranties of FPL. FPL represents and warrants to the several Underwriters that:

 

(a)    FPL has filed with the Securities and Exchange Commission (the “Commission”) a joint registration statement with NextEra Energy, Inc., a Florida corporation (“NEE”), and NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”), on Form S-3 (Registration Statement Nos. 333-______, 333-______-01 and 333-______-02) (“Registration Statement No. 333-______”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an unspecified aggregate amount of [insert description of securities registered]. Such registration statement has become effective and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of FPL, threatened by the Commission. References herein to the term “Registration Statement” (i) as of any given time means Registration Statement No. 333-______, as amended or supplemented to such time, including all documents incorporated by reference therein as of such time pursuant to Item 12 of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Notes (any reference to any preliminary prospectus supplement or any prospectus supplement shall be understood to include the Base Prospectus (as defined below)) deemed to be a part thereof as of such time pursuant to Rule 430B under the Securities Act (“Rule 430B”) that has not been superseded or modified as of such time and (ii) without reference to any given time means the Registration Statement as of ____ [A.M./P.M.], New York City time, on [______] [the date hereof] (which date and time is the earlier of the date and time of (A) the first use of the preliminary prospectus supplement relating to the Notes and (B) the first contract of sale of the Notes), which time shall be considered the “Effective Date” of the Registration Statement. For purposes of the definition of Registration Statement in the preceding sentence, information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. References herein to the term “Pricing Prospectus” means (i) the prospectus relating to FPL forming a part of Registration Statement No. 333-______, including all Incorporated Documents (the “Base Prospectus”), and (ii) any prospectus, preliminary prospectus supplement or prospectus supplement relating to the Notes deemed to be a part of the Registration Statement that has not been superseded or modified (for purposes of the definition of Pricing Prospectus with respect to a particular offering of the Notes, information contained in a prospectus, preliminary prospectus supplement or prospectus supplement relating to the Notes that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Pricing Prospectus as of the time that prospectus, preliminary prospectus supplement or prospectus supplement is filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”)). References herein to the term “Prospectus” means the Pricing Prospectus that discloses the public offering price and other final terms of the Notes and otherwise satisfies Section 10(a) of the Securities Act.

2 

 

The prospectus supplement relating to the Notes proposed to be filed pursuant to Rule 424 shall be substantially in the form delivered to the Representatives prior to the execution of this agreement. Each of the Underwriters acknowledges that on or subsequent to the Closing Date (as defined in Section 5 hereof), FPL may file a post-effective amendment to the Registration Statement pursuant to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in order to file one or more unqualified opinions of counsel and any documents executed in connection with the offering of the Notes.

 

(b)   The Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act (“Rule 405”)) filed within three years of the date hereof; the Registration Statement became effective upon filing; no notice of objection of the Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by FPL and not removed; and, with respect to the Notes, FPL is a “well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of the definition of “well-known seasoned issuer” in Rule 405 and is not an “ineligible issuer” (as defined in Rule 405).

 

(c)    The Registration Statement at the Effective Date fully complied, and the Prospectus, both as of the date hereof and at the Closing Date, and the Registration Statement and the Indenture, at the Closing Date, will fully comply, in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act of 1939, as amended, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at the Effective Date, did not, and the Registration Statement, at the Closing Date, will not, contain an untrue statement of a material fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, both as of the date hereof and at the Closing Date, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(c) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to FPL by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Registration Statement or the Prospectus, or to any statements in or omissions from the Statements of Eligibility on Form T-1, or amendments thereto, filed as exhibits to the Registration Statement (collectively, the “Statements of Eligibility”) or to any statements or omissions made in the Registration Statement or the Prospectus relating to The Depository Trust Company (“DTC”) Book-Entry-Only System [or the book-entry only systems of Clearstream Banking, société anonyme (“Clearstream”), or Euroclear Bank SA/NV, as operator of the Euroclear System (“Euroclear”)], that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]; and the Incorporated Documents, when filed with the Commission, fully complied or will fully comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable instructions, rules and regulations of the Commission thereunder.

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(d)    As of the Applicable Time (as defined below), the Pricing Disclosure Package (as defined below) did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, that the foregoing representations and warranties in this Section 3(d) shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to FPL by or on behalf of any Underwriter through the Representatives expressly for use in connection with the preparation of the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus (as defined below), or to any statements in or omissions from the Pricing Prospectus, any preliminary prospectus supplement or any Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System [or the book-entry only systems of Clearstream or Euroclear] that are based solely on information contained in published reports of DTC[, Clearstream or Euroclear]. References to the term “Pricing Disclosure Package” means the items listed in Schedule III, taken together as a whole. References to the term “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act (“Rule 433”). References to the term “Applicable Time” means ____ [A.M./P.M.], New York City time, on [______] [the date hereof].

 

(e)    As of the Applicable Time, no Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, the Prospectus or the Pricing Prospectus, including any document incorporated by reference therein that has not been superseded or modified.

 

(f)    The financial statements included as part of or incorporated by reference in the Pricing Disclosure Package, the Prospectus and the Registration Statement present fairly the consolidated financial condition and results of operations of FPL and its subsidiaries taken as a whole at the respective dates or for the respective periods to which they apply; such financial statements have been prepared in each case in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as otherwise indicated in the Pricing Disclosure Package, the Prospectus and the Registration Statement; and Deloitte & Touche LLP, who has audited the audited financial statements of FPL, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder.

 

(g)    Except as reflected in or contemplated by the Pricing Disclosure Package, since the respective most recent times as of which information is given in the Pricing Disclosure Package, there has not been any material adverse change in the business, properties or financial condition of FPL and its subsidiaries taken as a whole, whether or not in the ordinary course of business, nor has any transaction been entered into by FPL or any of its subsidiaries that is material to FPL and its subsidiaries taken as a whole, other than changes and transactions contemplated by the Pricing Disclosure Package and transactions in the ordinary course of business. FPL and its subsidiaries have no contingent obligation material to FPL and its subsidiaries taken as a whole, which is not disclosed in or contemplated by the Pricing Disclosure Package.

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(h)    The execution and delivery of this agreement and the consummation of the transactions herein contemplated by FPL, and the fulfillment of the terms hereof on the part of FPL to be fulfilled, have been duly authorized by all necessary corporate action of FPL in accordance with the provisions of its Restated Articles of Incorporation or Amended and Restated Bylaws and applicable law, and the Notes when issued and delivered by FPL as provided herein will constitute valid and binding obligations of FPL enforceable against FPL in accordance with their terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought.

 

(i)     The execution and delivery of this agreement and the consummation of the transactions herein contemplated by FPL, the fulfillment of the terms hereof on the part of FPL to be fulfilled, and the compliance by FPL with all the terms and provisions of the Indenture will not result in a breach of any of the terms or provisions of, or constitute a default under, FPL’s Restated Articles of Incorporation, its Amended and Restated Bylaws or any indenture, mortgage, deed of trust or other agreement or instrument to which FPL or any of its subsidiaries is now a party, or violate any law or any order, rule, decree or regulation applicable to FPL or any of its subsidiaries of any federal or state court, regulatory board or body or administrative agency having jurisdiction over FPL or any of its subsidiaries or any of their respective property, except where such breach, default or violation would not have a material adverse effect on the business, properties or financial condition of FPL and its subsidiaries taken as a whole.

 

(j)     FPL has no direct or indirect significant subsidiaries (as defined in Regulation S-X (17 CFR Part 210)).

 

(k)    FPL has been duly organized, is validly existing and is in good standing under the laws of its jurisdiction of organization, and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership of properties or the conduct of its businesses requires such qualification, except where the failure so to qualify would not have a material adverse effect on the business, properties or financial condition of FPL and its subsidiaries taken as a whole, and has the power and authority as a corporation necessary to own or hold its properties and to conduct the businesses in which it is engaged.

 

(l)   The Notes will conform in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

 

(m)   The Indenture (i) has been duly authorized by FPL by all necessary corporate action, [has been] [and when] duly executed and delivered by FPL, [and is] [will be] a valid and binding instrument enforceable against FPL in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and (ii) conforms in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus.

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(n)   FPL is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds from the sale of the Notes as described in the Pricing Disclosure Package and the Prospectus will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(o)   Except as described in the Pricing Disclosure Package and the Prospectus, FPL or its subsidiaries have valid franchises, licenses and permits adequate for the conduct of the business of FPL and its subsidiaries as described in the Pricing Disclosure Package and the Prospectus, except where the failure to have such franchises, licenses and permits would not reasonably be expected to have a material adverse effect on FPL and its subsidiaries taken as a whole.

 

(p)   The interactive data in eXtensible Business Reporting Language filed as exhibits to FPL’s Form 10-K for the year ended ______ [and Form 10-Q[s] for the quarter[s] ended ______, ______ and ______] fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

 

4.           Purchase and Sale. Subject to the terms and conditions in this agreement (including the representations and warranties herein contained), FPL agrees to sell to the respective Underwriters named in Schedule II hereto, severally and not jointly, and the respective Underwriters agree, severally and not jointly, to purchase from FPL for an aggregate purchase price of $__________, the respective principal amount of the Notes [of each series] set forth opposite their respective names in Schedule II hereto.

 

The Underwriters agree to make a bona fide public offering of the Notes, as set forth in the Pricing Disclosure Package, such public offering to be made as soon after the execution of this agreement as practicable, subject, however, to the terms and conditions of this agreement. The Underwriters have advised FPL that the Notes will be offered to the public at the amount per Note [of each series] as set forth in Schedule I hereto as the Price to Public [of each series] and to certain dealers selected by the Representatives at a price which represents a concession. Such dealers’ concession may not be in excess of _____% of the principal amount per Note [of each series].

 

Each Underwriter agrees that (i) no information that is presented by it to investors has been or will be inconsistent with the information contained in the Pricing Disclosure Package as it may then be amended or supplemented and (ii) it will make no offer that would constitute a Free Writing Prospectus that is required to be filed by FPL pursuant to Rule 433 other than an Issuer Free Writing Prospectus in accordance with Section 6(h) hereof. References to the term “Free Writing Prospectus” means a free writing prospectus as defined in Rule 405.

 

5.           Time, Date and Place of Closing, Default of the Underwriters. Delivery of the Notes [of each series] and payment therefor by wire transfer in federal funds shall be made at 9:00 A.M., New York City time, on the settlement date set forth on Schedule I, at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, or at such other time, date or place as may be agreed upon in writing by FPL and the Representatives. The time and date of such delivery and payment are herein called the “Closing Date.”

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The Notes will be issued in the form of one or more global certificates in fully registered form. The Notes shall be delivered to the Representatives for the respective accounts of the Underwriters against payment by the several Underwriters through the Representatives of the purchase price therefor. Delivery of the Notes shall be made through the facilities of DTC unless FPL and the Representatives shall otherwise agree. For the purpose of expediting the checking of the Notes by the Representatives on behalf of the Underwriters, FPL (if delivery of the Notes shall be made otherwise than through the facilities of DTC) agrees to make such Notes available to the Representatives for such purpose at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York 10178, not later than 2:00 P.M., New York City time, on the business day preceding the Closing Date, or at such other time, date or place as may be agreed upon by FPL and the Representatives.

 

If any Underwriter shall fail to purchase and pay for the principal amount of the Notes [of each series] which such Underwriter has agreed to purchase and pay for hereunder (otherwise than by reason of any failure on the part of FPL to comply with any of the provisions contained herein), the non-defaulting Underwriters shall be obligated to purchase and pay for (in addition to the respective principal amount of the Notes [of each series] set forth opposite their respective names in Schedule II hereto) the principal amount of the Notes [of each series] which such defaulting Underwriter or Underwriters failed to purchase and pay for, up to a principal amount thereof equal to, in the case of each such remaining Underwriter, ten percent (10%) of the aggregate principal amount of the Notes [of the series as to which there is a default and which are] set forth opposite the name of each such remaining Underwriter in said Schedule II, and such remaining Underwriters shall have the right, within 24 hours of receipt of such notice, either to (i) purchase and pay for (in such proportion as may be agreed upon among them) the remaining principal amount of the Notes [of each series] which the defaulting Underwriter or Underwriters agreed but failed to purchase, or (ii) substitute another Underwriter or Underwriters, satisfactory to FPL, to purchase and pay for the remaining principal amount of the Notes [of each series] which the defaulting Underwriter or Underwriters agreed but failed to purchase. If any of the Notes would still remain unpurchased, then FPL shall be entitled to a further period of 24 hours within which to procure another party or other parties that (i) are members of the Financial Industry Regulatory Authority, Inc. or else are not eligible for membership in said Authority but who agree (A) to make no sales within the United States, its territories or its possessions or to persons who are citizens thereof or residents therein and (B) in making sales to comply with said Authority’s Conduct Rules, and (ii) are satisfactory to the Representatives to purchase such Notes on the terms herein set forth. In the event that, within the respective prescribed periods, (i) the non-defaulting Underwriters notify FPL that they have arranged for the purchase of such Notes or (ii) FPL notifies the non-defaulting Underwriters that it has arranged for the purchase of such Notes, the non-defaulting Underwriters or FPL shall have the right to postpone the Closing Date for a period of not more than three full business days beyond the expiration of the respective prescribed periods in order to effect whatever changes may thus be made necessary in the Registration Statement, the Prospectus or in any other documents or arrangements. In the event that neither the non-defaulting Underwriters nor FPL has arranged for the purchase of such Notes by another party or parties as above provided, then this agreement shall terminate without any liability on the part of FPL or any Underwriter (other than an Underwriter which shall have failed or refused, otherwise than for some reason sufficient to justify, in accordance with the terms hereof, the cancellation or termination of its obligations hereunder, to purchase and pay for the Notes which such Underwriter has agreed to purchase as provided in Section 4 hereof), except as otherwise provided in Section 6(d), Section 6(f) and Section 9 hereof.

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6.           Covenants of FPL. FPL agrees with the several Underwriters that:

 

(a)    FPL will timely file the Prospectus and any preliminary prospectus supplement used in connection with the offering of the Notes with the Commission pursuant to Rule 424. FPL has complied and will comply with Rule 433 in connection with the offering and sale of the Notes, including applicable provisions in respect of timely filing with the Commission, legending and record-keeping.

 

(b)   FPL will prepare a final term sheet, containing a description of the pricing terms of the Notes, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433.

 

(c)    FPL will, upon request, deliver to the Representatives and to Counsel for the Underwriters (as defined below) one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of FPL to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Notes, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date hereof, FPL will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus and any Issuer Free Writing Prospectus as the Representatives may reasonably request for the purposes contemplated by the Securities Act.

 

(d)   FPL has paid or caused to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus supplement, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Notes as provided in Section 5 hereof, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and the Indenture. FPL will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Notes. FPL shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters (other than in accordance with the provisions of Section 9 hereof), except that if this agreement shall be terminated in accordance with the provisions of Section 7, Section 8, or Section 10 hereof, FPL will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and FPL shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. FPL shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.

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(e)    During a period of nine months after the date hereof, if any event relating to or affecting FPL shall occur which, in the opinion of FPL, should be set forth in a supplement to or an amendment to the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus, in the light of the circumstances pertaining when it is delivered to a purchaser, not misleading, FPL will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend the Prospectus so that as supplemented or amended it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances pertaining when the Prospectus is delivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date hereof, FPL upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.

 

(f)    FPL will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Notes for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that FPL shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet other requirements deemed by FPL to be unduly burdensome.

 

(g)   FPL will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders (including holders of the Notes) as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.

 

(h)   Prior to the termination of the offering of the Notes, FPL will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton Andrews Kurth LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. FPL has not made any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by FPL with the Commission or retained by FPL pursuant to Rule 433, other than [(1) a preliminary pricing term sheet dated __________ and (2)] a pricing term sheet substantially in the form as set forth on Schedule I, and FPL will not make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters.

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(i)     FPL will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Notes, of official notice of the institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.

 

(j)     If there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then pertaining, not misleading, FPL promptly will notify the Representatives so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.

 

7.           Conditions of Underwriters’ Obligations to Purchase and Pay for the Notes. The several obligations of the Underwriters to purchase and pay for the Notes shall be subject to the performance by FPL of its obligations to be performed hereunder on or prior to the Closing Date and to the following conditions:

 

(a)    The representations and warranties made by FPL herein and qualified by materiality shall be true and correct in all respects and the representations and warranties made by FPL herein that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date, in each case, as if made on and as of such date and the Representatives shall have received, prior to payment for the Notes, a certificate from FPL dated the Closing Date and signed by an officer of FPL to that effect.

 

(b)   No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by FPL and not removed by the Closing Date; and the Representatives shall have received, prior to payment for the Notes, a certificate from FPL dated the Closing Date and signed by an officer of FPL to the effect that, to the best of his or her knowledge, no such orders are in effect, no proceedings for either such purpose are pending before, or to the knowledge of FPL threatened by, the Commission, and no such notice of objection has been received and not removed.

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(c)    On the Closing Date, there shall be in full force and effect an authorization of the Florida Public Service Commission with respect to the issuance and sale of the Notes on the terms herein stated or contemplated, and containing no provision unacceptable to the Representatives by reason of the fact that it is materially adverse to FPL, it being understood that no authorization provided to Counsel for the Underwriters and in effect at the date hereof contains any such unacceptable provision.

 

(d)   On the Closing Date, the Representatives shall have received from Squire Patton Boggs (US) LLP, counsel to FPL, Morgan, Lewis & Bockius LLP, counsel to FPL, and Hunton Andrews Kurth LLP, Counsel for the Underwriters, opinions (with a copy for each of the Underwriters) in substantially the form and substance prescribed in Schedule IV, Schedule V, and Schedule VI hereto (i) with such changes therein as may be agreed upon by FPL and the Representatives, with the approval of Counsel for the Underwriters, and (ii) if the Prospectus relating to the Notes shall be supplemented or amended after the Prospectus shall have been filed with the Commission pursuant to Rule 424, with any changes therein necessary to reflect such supplementation or amendment.

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(e)   On the date hereof and on the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter or letters (which may refer to letters previously delivered to the Representatives) (with copies thereof for each of the Underwriters) dated the respective dates of delivery thereof to the effect that (i) they are an independent registered public accounting firm with respect to FPL within the meaning of the Securities Act and the Exchange Act and the applicable published rules and regulations thereunder; (ii) in their opinion, the consolidated financial statements of FPL audited by them and incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder; (iii) on the basis of performing a review of interim financial information as described in the Public Company Accounting Oversight Board (United States) (“PCAOB”) AS 4105, Reviews of Interim Financial Information, on the unaudited [condensed] consolidated financial statements of FPL, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, a reading of the latest available interim unaudited [condensed] consolidated financial statements of FPL, if any, since the close of FPL’s most recent audited fiscal year, a reading of the minutes and consents of the Board of Directors, the Finance Committee of the Board of Directors and the Stock Issuance Committee of the Board of Directors and of the sole common shareholder of FPL since the end of the most recent audited fiscal year, and inquiries of officials of FPL who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Underwriters’ purposes), nothing has come to their attention which caused them to believe that (a) the unaudited [condensed] consolidated financial statements of FPL, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, (1) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder and (2) except as disclosed in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements of FPL incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable; (b) at the date of the latest available interim balance sheet read by them and at a specified date not more than five days prior to the date of such letter, there was any change in the common stock or additional paid-in capital or increase in the preferred stock or long-term debt including current maturities and excluding fair value swaps, if any, and unamortized premium and discount on long-term debt of FPL and its subsidiaries, or decrease in common shareholder’s equity of FPL and its subsidiaries, in each case as compared with amounts shown in the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, except in all instances for changes, increases or decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or as occasioned by the declaration, provision for, or payment of dividends, or which are described in such letter; or (c) for the period from the date of the most recent [condensed] consolidated balance sheet, if any, incorporated by reference in the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, to the latest available interim balance sheet read by them and for the period from the date of the latest available interim balance sheet read by them to a specified date not more than five days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated operating revenues or in net income, except in all instances for decreases which the Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable, discloses have occurred or may occur, or which are described in such letter; and (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to such items as the Representatives may reasonably request.

 

(f)    Since the respective most recent times as of which information is given in the Pricing Disclosure Package, and up to the Closing Date, (i) there shall have been no material adverse change in the business, properties or financial condition of FPL and its subsidiaries taken as a whole, except as disclosed in or contemplated by the Pricing Disclosure Package, and (ii) there shall have been no transaction entered into by FPL or any of its subsidiaries that is material to FPL and its subsidiaries taken as a whole, other than transactions disclosed in or contemplated by the Pricing Disclosure Package, and transactions in the ordinary course of business; and at the Closing Date the Representatives shall have received a certificate to such effect from FPL signed by an officer of FPL.

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(g)   All legal proceedings to be taken in connection with the issuance and sale of the Notes shall have been satisfactory in form and substance to Counsel for the Underwriters.

 

In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this agreement may be terminated by the Representatives upon mailing or delivering written notice thereof to FPL. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section 6(d) and Section 6(f) hereof.

 

8.           Conditions of FPL’s Obligations. The obligation of FPL to deliver the Notes shall be subject to the following conditions:

 

(a)    No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date; no order of the Commission directed to the adequacy of any Incorporated Document shall be in effect on the Closing Date; no proceedings for either such purpose shall be pending before, or threatened by, the Commission on the Closing Date; and no notice of objection by the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received by FPL and not removed by the Closing Date.

 

(b)   On the Closing Date, there shall be in full force and effect an authorization of the Florida Public Service Commission with respect to the issuance and sale of the Notes on the terms herein stated or contemplated, and containing no provision unacceptable to FPL by reason of the fact that it is materially adverse to FPL, it being understood that no authorization in effect at the date hereof contains any such unacceptable provision.

 

In case the conditions specified above in this Section 8 shall not have been fulfilled, this agreement may be terminated by FPL upon mailing or delivering written notice thereof to the Representatives. Any such termination shall be without liability of any party to any other party except as otherwise provided in Section 6(d) and Section 6(f) hereof.

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9.           Indemnification.

 

(a)    FPL agrees to indemnify and hold harmless each Underwriter, each officer and director of each Underwriter and each person (a “Controlling Person”) who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and to reimburse each such Underwriter, officer, director and Controlling Person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, including all Incorporated Documents, or in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this Section 9(a) shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished in writing, to FPL by or on behalf of any Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof, or arising out of, or based upon, statements in or omissions from the Statements of Eligibility; and provided, further, that the indemnity agreement contained in this Section 9(a) in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall not inure to the benefit of any Underwriter (or of any officer or director or Controlling Person of such Underwriter) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of the Notes [of any series] to any person in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may be then supplemented or amended, furnished by such Underwriter to a person to whom any of the Notes were sold (excluding in all cases, however, any document then incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement made in or omission from such preliminary prospectus supplement, Pricing Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a supplement or amendment to such preliminary prospectus supplement, Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus (excluding in all cases, however, any document then incorporated by reference therein) (i) is furnished on a timely basis by FPL to the Underwriter, (ii) is required by law or regulation to have been conveyed to such person by or on behalf of such Underwriter, at or prior to the entry into the contract of sale of the Notes with such person, but was not so conveyed (which conveyance may be oral or written) by or on behalf of such Underwriter and (iii) would have cured the defect giving rise to such loss, claim, damage or liability. The indemnity agreement of FPL contained in this Section 9(a) and the representations and warranties of FPL contained in Section 3 hereof shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Notes [of each series]. Each Underwriter agrees promptly to notify FPL, and each other Underwriter, of the commencement of any litigation or proceedings against the notifying Underwriter, or any of its officers, directors or Controlling Persons, in connection with the issuance and sale of the Notes [of any series].

14 

 

(b)   Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless FPL, its officers and directors, and each person who controls FPL within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon and in conformity with information furnished in writing to FPL by or on behalf of such Underwriter, through the Representatives, expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof. The Underwriters hereby furnish to FPL in writing, expressly for use in the preliminary prospectus supplement dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus, the following: [insert information provided by the Underwriters]. FPL acknowledges that the statements identified in the preceding [___] sentence[s] constitute the only information furnished in writing by or on behalf of the several Underwriters expressly for inclusion in the preliminary prospectus supplement dated __________, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus. The respective indemnity agreement of each Underwriter contained in this Section 9(b) shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of FPL or any of its officers or directors or any person who controls FPL within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of any other Underwriter or any of its officers, directors or Controlling Persons, and shall survive the delivery of the Notes [of each series]. FPL agrees promptly to notify the Representatives of the commencement of any litigation or proceedings against FPL (or any of its controlling persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) or any of its officers or directors in connection with the issuance and sale of the Notes [of any series].

15 

 

(c)    FPL and each of the several Underwriters each agree that, upon the receipt of notice of the commencement of any action against it, its officers and directors, or any person controlling it as aforesaid, in respect of which indemnity or contribution may be sought under the provisions of this Section 9, it will promptly give written notice of the commencement thereof to the party or parties against whom indemnity or contribution shall be sought thereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party otherwise than on account of this indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall elect not to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and counsel for the indemnifying party shall have reasonably concluded that there may be a conflict of interest involved in the representation by such counsel of both the indemnifying party and the indemnified party, the indemnified party or parties shall have the right to select separate counsel, satisfactory to the indemnifying party or parties, to participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party or parties (it being understood, however, that the indemnifying party or parties shall not be liable for the expenses of more than one separate counsel representing the indemnified parties who are parties to such action). FPL and each of the several Underwriters each agree that without the prior written consent of the other parties to such action who are parties to this agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section 9, unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

 

(d)   If, or to the extent, the indemnification provided for in Section 9(a) or Section 9(b) hereof shall be unenforceable under applicable law by an indemnified party, each indemnifying party agrees to contribute to such indemnified party with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in Section 9(a) or Section 9(b) hereof shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of FPL on the one hand and the Underwriters on the other hand in connection with the statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by FPL on the one hand and the Underwriters on the other hand from the offering of the Notes pursuant to this agreement, and (iii) any other relevant equitable considerations; provided, however, that no indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any indemnifying party not guilty of such fraudulent misrepresentation. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by FPL or the Underwriters and each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. FPL and each of the Underwriters each agree that it would not be just and equitable if contribution pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 9(d), no Underwriter shall be required to contribute in excess of the amount equal to the excess of (i) the total price at which the Notes underwritten by it were offered to the public, over (ii) the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Underwriter to contribute pursuant to this Section 9(d) are several and not joint and shall be in the same proportion as such Underwriter’s obligation to underwrite the Notes [of the series with respect to which contribution is sought] is to the total principal amount of the Notes [of such series] set forth in Schedule II hereto.

16 

 

10.        Termination. This agreement may be terminated by the Representatives by delivering written notice thereof to FPL, at any time prior to the Closing Date, if after the date hereof and at or prior to the Closing Date:

 

(a)   (i) there shall have occurred any general suspension of trading in securities on The New York Stock Exchange LLC (the “NYSE”) or there shall have been established by the NYSE or by the Commission or by any federal or state agency or by the decision of any court any limitation on prices for such trading or any general restrictions on the distribution of securities, or trading in any securities of FPL shall have been suspended or limited by any exchange located in the United States or on the over-the-counter market located in the United States or a general banking moratorium declared by New York or federal authorities or (ii) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities, including, but not limited to, an escalation of hostilities which existed prior to the date hereof, any other national or international calamity or crisis or any material adverse change in financial, political or economic conditions affecting the United States, the effect of any such event specified in this clause (ii) being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Notes [of any series] as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Notes [of any series]; or

 

(b)   (i) there shall have been any downgrading or any notice of any intended or potential downgrading in the ratings accorded to the Notes [of any series] or any securities of FPL which are of the same class as the Notes by either [Moody’s Investors Service, Inc. (“Moody’s”)] or [S&P Global Ratings, a division of S&P Global Inc. (“S&P”)], or (ii) either [Moody’s] or [S&P] shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes [of any series] or any securities of FPL which are of the same class as the Notes [of any series], the effect of any such event specified in (i) or (ii) above being such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Notes [of any series] as contemplated in the Pricing Disclosure Package or for the Underwriters to enforce contracts for the sale of the Notes [of any series].

 

This agreement may also be terminated at any time prior to the Closing Date if in the judgment of the Representatives the subject matter of any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus prepared and furnished by FPL after the date hereof reflects a material adverse change in the business, properties or financial condition of FPL and its subsidiaries taken as a whole which renders it either inadvisable to proceed with such offering, if any, or inadvisable to proceed with the delivery of the Notes [of any series] to be purchased hereunder. Any termination of this agreement pursuant to this Section 10 shall be without liability of any party to any other party except as otherwise provided in Section 6(d) and Section 6(f) hereof.

17 

 

11.          Miscellaneous.

 

(a)    The validity and interpretation of this agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles thereunder. This agreement shall inure to the benefit of, and be binding upon, FPL, the several Underwriters and, with respect to the provisions of Section 9 hereof, each officer, director or controlling person referred to in said Section 9, and their respective successors. Nothing in this agreement is intended or shall be construed to give to any other person or entity any legal or equitable right, remedy or claim under or in respect of this agreement or any provision herein contained. The term “successors” as used in this agreement shall not include any purchaser, as such purchaser, of any Notes from any of the several Underwriters.

 

(b)   FPL acknowledges and agrees that the Underwriters are acting solely in the capacity of arm’s length contractual counterparties to FPL with respect to the offering of the Notes as contemplated by this agreement and not as financial advisors or fiduciaries to FPL in connection herewith. Additionally, none of the Underwriters is advising FPL as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction in connection with the offering of the Notes as contemplated by this agreement. Any review by the Underwriters of FPL in connection with the offering of the Notes contemplated by this agreement and the transactions contemplated by this agreement will not be performed on behalf of FPL.

 

12.         Notices. All communications hereunder shall be in writing and, if to the Underwriters, shall be mailed or delivered to the Representatives at the address set forth in Schedule II hereto, or, if to FPL, shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.

 

13.         Counterparts. This agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

14.          Recognition of the U.S. Special Resolution Regimes.

 

(a)    In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this agreement, and any interest and obligation in or under this agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

18 

 

(b)   In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this agreement were governed by the laws of the United States or a state of the United States.

 

(c)    For purpose of this Section 14, (A) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) the term “Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) the term “U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

19 

 

If the foregoing correctly sets forth our understanding, please indicate your acceptance on behalf of the Underwriters in the space provided below for that purpose, whereupon this letter and your acceptance on behalf of the Underwriters shall constitute a binding agreement between FPL and the Underwriters.

 

  Very truly yours,
   
  Florida Power & Light Company
   
  By:   
    Name:
    Title:
   
Accepted and delivered as of  
the date first above written by the  
Representatives on behalf of the Underwriters
       
   
   
By:    
  Name:  
  Title:  

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SCHEDULE I

 

Florida Power & Light Company

 

Pricing Term Sheet

 

[Date]

 

Issuer: Florida Power & Light Company

Designation:

Registration Format:

Principal Amount:

Date of Maturity:

Interest Payment Dates:

Coupon Rate:

Price to Public:

[Benchmark Treasury:

Benchmark Treasury Yield:

Spread to Benchmark

Treasury Yield:

Reoffer Yield:]

Redemption:

Trade Date:

Settlement Date:

CUSIP/ ISIN Number:

[Other Terms]

Expected Credit Ratings:*

Underwriters: 

___________

*A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.

 

The terms “___________” and “__________” have the meanings ascribed to those terms in the Issuer’s Preliminary Prospectus Supplement, dated ___________.

 

The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling __________ toll-free at __________ or __________ toll-free at __________.

 

 

SCHEDULE II

 

Representatives   Addresses
   
     
     
     
     
     
Underwriters   Principal Amount
     
     
     
     
     
     
     
     
     
     
     
Total  

 

 

SCHEDULE III

 

PRICING DISCLOSURE PACKAGE

 

(1)         Base Prospectus, dated ________________

 

(2)         Preliminary Prospectus Supplement, dated _______________ (which shall be deemed to include the Incorporated Documents filed at or prior to the Applicable Time to the extent not superseded by Incorporated Documents filed at or prior to the Applicable Time)

 

(3)         Issuer Free Writing Prospectus

 

(a)       Pricing Term Sheet in the form attached as Schedule I to the Underwriting Agreement dated __________, as filed with the SEC

 

Exhibit 1(h) 

 

REMARKETING AGREEMENT

 

REMARKETING AGREEMENT, dated ________________ (the “Agreement”) between NextEra Energy, Inc., a Florida corporation (“NEE”), NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”) and a wholly-owned subsidiary of NEE, and The Bank of New York Mellon, not individually but solely as purchase contract agent and attorney-in-fact for the holders of Purchase Contracts (the “Purchase Contract Agent”), and ________________ (“__________”), ________________ (“__________”) and ________________ (“__________”), as remarketing agents (the “Remarketing Agents”) and reset agents (the “Reset Agents”).

 

WITNESSETH:

 

WHEREAS, NEE will issue $__________ (or $__________ if the overallotment option provided for in the Underwriting Agreement, dated __________, relating to the offer and sale of Corporate Units (as defined below) between the Company, NEE Capital and __________ (the “Underwriting Agreement”) is exercised in full) aggregate stated amount of its Equity Units (initially consisting of Corporate Units (as defined below)) under the Purchase Contract Agreement, dated as of ________________ (the “Purchase Contract Agreement”), by and between the Purchase Contract Agent and NEE; and

 

WHEREAS, the Corporate Units will initially consist of __________ units (or __________ units if the overallotment option provided for in the Underwriting Agreement is exercised in full) referred to as “Corporate Units”; and

 

WHEREAS, NEE Capital will issue concurrently with NEE’s issuance of the Corporate Units $________________ aggregate principal amount (or $__________ aggregate principal amount if the overallotment option provided for in the Underwriting Agreement is exercised in full) of its Series __ Debentures due ________________ (“Debentures”) issued pursuant to the Indenture (For Unsecured Debt Securities), dated as of June 1, 1999 (as amended, the “Indenture”), between The Bank of New York Mellon, as Indenture Trustee, and NEE Capital, and NEE will absolutely, irrevocably and unconditionally guarantee the payment of principal, interest and premium, if any, on the Debentures pursuant to the Guarantee Agreement, dated as of June 1, 1999, between NEE and The Bank of New York Mellon, as guarantee trustee; and

 

WHEREAS, the Applicable Ownership Interests in Debentures that are a component of the Corporate Units will be pledged pursuant to the Pledge Agreement (the “Pledge Agreement”), dated as of ________________, between NEE, __________, as collateral agent, securities intermediary and custodial agent (the “Collateral Agent”), and the Purchase Contract Agent, to secure a Corporate Unit holder’s obligation to purchase common stock, $0.01 par value per share (“Common Stock”)1, of NEE under the related Purchase Contract on the Purchase Contract Settlement Date; and

 

 

1 To be revised if preferred stock or depositary shares are to be issued upon settlement of Purchase Contracts.

 

 

WHEREAS, unless a Special Event Redemption or a Mandatory Redemption has occurred, NEE Capital may, at its option and in its sole discretion, elect to remarket the Debentures underlying the Applicable Ownership Interest in Debentures that are a component of Corporate Units during the Period for Early Remarketing; and

 

WHEREAS, unless a Special Event Redemption or a Mandatory Redemption has occurred, or unless there has been a Successful Remarketing during the Period for Early Remarketing, or a Holder settles the Purchase Contract underlying a Corporate Unit through the early delivery of cash to the Purchase Contract Agent in the manner described in Section 5.9 or Section 5.6(b) of the Purchase Contract Agreement, each Holder of a Corporate Unit must notify the Purchase Contract Agent of its intention to effect a Cash Settlement of the Purchase Contracts on the Purchase Contract Settlement Date, at or prior to 5:00 p.m., New York City time, on the seventh Business Day immediately preceding the Purchase Contract Settlement Date; and

 

WHEREAS, if a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its intention to effect a Cash Settlement in accordance with the Purchase Contract Agreement, such Holder shall be deemed to have consented to the disposition of the related Pledged Applicable Ownership Interests in Debentures pursuant to the Remarketing; and

 

WHEREAS, holders of Separate Debentures may elect to have their Debentures remarketed during the Period for Early Remarketing, if NEE Capital elects to conduct a Remarketing during such period, or during the Final Three-Day Remarketing Period, by providing notice of such election on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first Remarketing Date of the applicable Three-Day Remarketing Period, but no earlier than the fifth Business Day immediately preceding such first Remarketing Date of the applicable Three-Day Remarketing Period, and delivering their Debentures to the Custodial Agent; and

 

WHEREAS, upon a Successful Remarketing during the Period for Early Remarketing, the interest rate on the Debentures will be reset to the Reset Rate on the Reset Effective Date to be determined by the Reset Agents as the rate at which such Debentures should bear interest in order to have a price equal to or greater than 100% of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price (as defined in the Officer’s Certificate), plus the applicable Remarketing Fee; provided that in the determination of such Reset Rate, NEE and NEE Capital shall, if applicable, limit the Reset Rate to the maximum permitted by law; and

 

WHEREAS, upon a Successful Remarketing during the Final Three-Day Remarketing Period, the interest rate on the Debentures will be reset to the Reset Rate on the Reset Effective Date to be determined by the Reset Agents as the rate at which such Debentures should bear interest in order to have a price equal to or greater than 100% of the aggregate principal amount of the Debentures remarketed, plus the applicable Remarketing Fee; provided that (i) in the determination of such Reset Rate, NEE and NEE Capital shall, if applicable, limit the Reset Rate to the maximum permitted by law and (ii) in the event that there is no Successful Remarketing on or prior to the final Remarketing Date, the interest rate on the Debentures will not be reset; and

2 

 

WHEREAS, NEE and NEE Capital have requested __________, __________ and __________ to each act as a Reset Agent and a Remarketing Agent and in such capacities to perform the services described herein; and

 

WHEREAS, __________, __________ and __________ are each willing to act as Reset Agent and as Remarketing Agent and, in each such capacity, are willing to perform the duties of the Reset Agent and the Remarketing Agent on the terms and conditions expressly set forth herein;

 

NOW, THEREFORE, for and in consideration of the covenants herein made, and subject to the conditions herein set forth, the parties hereto agree as follows:

 

Section 1. Definitions. Capitalized terms used and not defined in this Agreement shall have the meanings assigned to them in the Purchase Contract Agreement.

 

Section 2. Appointment and Obligations of the Reset Agents and the Remarketing Agents. NEE and NEE Capital hereby appoint __________, __________ and __________ and __________, __________ and __________ each hereby accepts such appointment, as the Remarketing Agents to remarket the Debentures (i) of Separate Debenture holders electing to have their Debentures remarketed during a Remarketing Period and (ii) (x) underlying Pledged Applicable Ownership Interests in Debentures of all Corporate Unit holders as to a Remarketing during the Period for Early Remarketing and (y) underlying Pledged Applicable Ownership Interests in Debentures, if there is not a Successful Remarketing during the Period for Early Remarketing, of Corporate Unit holders who have failed to notify the Purchase Contract Agent, on or prior to the seventh Business Day immediately preceding the Purchase Contract Settlement Date, of their intention to settle the related Purchase Contracts through Cash Settlement, for settlement on the Purchase Contract Settlement Date (all such Debentures specified in clauses (i) and (ii) above are hereinafter referred to as the “Subject Debentures”), such Remarketing in each case will be pursuant to the Supplemental Remarketing Agreement attached hereto as Exhibit A, between NEE, NEE Capital, the Purchase Contract Agent and the Remarketing Agents (with such changes as NEE, NEE Capital, the Purchase Contract Agent and the Remarketing Agents may agree upon, it being understood that changes may be necessary in the representations, warranties, covenants and other provisions of the Supplemental Remarketing Agreement due to changes in law or facts and circumstances). Pursuant to the Supplemental Remarketing Agreement, the Remarketing Agents will agree, subject to the terms and conditions set forth therein, that the Remarketing Agents will use their commercially reasonable efforts to remarket the Subject Debentures

 

(i)        on each Remarketing Date, if any, occurring during the Period for Early Remarketing, at a price equal to or greater than 100% of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price, plus the applicable Remarketing Fee; or

 

(ii)       on each Remarketing Date, if any, occurring during the Final Three-Day Remarketing Period, at a price equal to or greater than 100% of the aggregate principal amount of the Subject Debentures, plus the applicable Remarketing Fee.

3 

 

The Remarketing Agents shall not remarket any Subject Debentures for a price less than (i) 100% of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price (in the case of a Remarketing during the Period for Early Remarketing) and (ii) 100% of the aggregate principal amount of the Subject Debentures (in the case of a Remarketing during the Final Three-Day Remarketing Period), and shall not be required to purchase any Subject Debentures not successfully remarketed. The proceeds of such Remarketing shall be paid to the Collateral Agent in accordance with Section 6.2(b) of the Pledge Agreement and Section 4.3(b) of the Purchase Contract Agreement (in the case of a Remarketing during the Period for Early Remarketing) and Section 4.6 of the Pledge Agreement and Section 5.4 of the Purchase Contract Agreement (in the case of a Remarketing during the Final Three-Day Remarketing Period) (all of which Sections are incorporated herein by reference). If fewer than all of the Subject Debentures are remarketed in accordance with the terms hereof, or a condition precedent set forth in the Purchase Contract Agreement is not fulfilled, a Remarketing shall be deemed to have failed as to all Subject Debentures.

 

A holder of Separate Debentures shall have no right to have such Separate Debentures remarketed unless (i) the Remarketing Agents conduct a Remarketing pursuant to the terms of this Agreement, (ii) the Subject Debentures have not been called for Mandatory Redemption or Special Event Redemption, (iii) the Remarketing Agents are able to find a purchaser or purchasers for all Subject Debentures, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agents. The Remarketing Agents are not obligated to purchase any Subject Debentures that would otherwise remain unsold in a Remarketing. The Remarketing Agents shall not be obligated in any case to provide funds to make payment upon tender of Subject Debentures for Remarketing.

 

Section 3. Fees. With respect to a Successful Remarketing during the Period for Early Remarketing, the Remarketing Agents shall retain as a Remarketing Fee an amount but only to the extent that such amount may be deducted from any portion of the proceeds from the Remarketing that is in excess of the sum of the Remarketing Treasury Portfolio Purchase Price and the Separate Debentures Purchase Price, equal to ___ basis points (___%) of the aggregate of the Remarketing Treasury Portfolio Purchase Price and the Separate Debentures Purchase Price. With respect to a Successful Remarketing during the Final Three-Day Remarketing Period, the Remarketing Agents shall retain as a Remarketing Fee an amount but only to the extent that such amount may be deducted from any portion of the proceeds from the Remarketing that is in excess of the aggregate principal amount of the Subject Debentures, equal to ___ basis points (___%) of the aggregate principal amount of the Subject Debentures. In addition, the Reset Agents shall receive from NEE Capital a reasonable and customary fee for acting as the Reset Agents (the “Reset Agent Fee”); provided, however, that if a Remarketing Agent shall also act as a Reset Agent, then such Reset Agent shall not be entitled to receive any such Reset Agent Fee. Payment of such Reset Agent Fee, if any, shall be made by NEE Capital on the Reset Effective Date in immediately available funds or, upon the instructions of a Reset Agent, by certified or official bank check or checks or by wire transfer.

 

Section 4. Replacement and Resignation of Remarketing Agents and Reset Agents. (a) NEE and NEE Capital may in their absolute discretion replace any of __________, __________ and __________ as a Remarketing Agent and/or a Reset Agent hereunder by giving notice prior to 3:00 p.m., New York City time, on the eighth Business Day immediately prior to any Period for Early Remarketing or the Final Three-Day Remarketing Period. Any such replacement shall become effective upon NEE’s and NEE Capital’s appointment of a successor or successors to perform the services that would otherwise be performed hereunder by a Remarketing Agent and/or a Reset Agent. Upon providing such notice, NEE and NEE Capital shall use all reasonable efforts to appoint such a successor or successors and to enter into a remarketing agreement with such successor or successors as soon as reasonably practicable.

4 

 

(b) __________, __________ and __________ each may resign at any time and be discharged from its duties and obligations hereunder as a Remarketing Agent and/or a Reset Agent by giving notice prior to 3:00 p.m., New York City time, on the eighth Business Day immediately prior to any Period for Early Remarketing or the Final Three-Day Remarketing Period. Any such resignation shall become effective (1) on the date specified in the notice of resignation, provided that there would still be at least one Remarketing Agent or Reset Agent, as the case may be, continuing in such capacity on and after such date, and (2) upon NEE’s and NEE Capital’s appointment of a successor or successors to perform the services that are to be performed hereunder by a Remarketing Agent and/or a Reset Agent, if there otherwise would not be a Remarketing Agent or Reset Agent, as the case may be, on and after the date specified in the notice of resignation. Upon receiving notice from a Remarketing Agent and/or a Reset Agent that it wishes to resign hereunder, and if there would otherwise not be a Remarketing Agent or Reset Agent, as the case may be, at such time, NEE and NEE Capital shall appoint such a successor or successors and enter into a remarketing agreement with it or them as soon as reasonably practicable.

 

Section 5. Dealing in Relevant Securities. The Remarketing Agents, when acting hereunder or acting in their individual or any other capacity, may, to the extent permitted by law, buy, sell, hold or deal in any of the Debentures, Corporate Units, Treasury Units or any other securities of NEE or NEE Capital (collectively, the “Relevant Securities”). With respect to any Relevant Securities owned by it, each Remarketing Agent may exercise any vote or join in any action with like effect as if it did not act in any capacity hereunder. Each Remarketing Agent, in its individual capacity, either as principal or agent, may also engage in or have an interest in any financial or other transaction with NEE or NEE Capital as freely as if it did not act in any capacity hereunder.

 

Section 6. Registration Statement and Prospectus. In connection with a Remarketing, if and to the extent required (in the opinion of counsel for the Remarketing Agents or NEE and NEE Capital) by applicable law, regulations or interpretations in effect at the time of such Remarketing, NEE and NEE Capital shall use their commercially reasonable efforts to have a registration statement relating to the Subject Debentures effective under the Securities Act of 1933, as amended (the “Securities Act”), by the Business Day immediately preceding the first of the three sequential Remarketing Dates comprising a Three-Day Remarketing Period or the Final Three-Day Remarketing Period, as applicable, and shall furnish a current prospectus and/or prospectus supplement to be used in such Remarketing by the Remarketing Agents under the Supplemental Remarketing Agreement.

 

Section 7. Conditions to the Remarketing Agents’ Obligations. (a) The obligations of the Remarketing Agents to remarket and purchase the Subject Debentures shall be subject to the terms and conditions of the Supplemental Remarketing Agreement.

5 

 

(b) If at any time during the term of this Agreement, any Event of Default (as defined in the Indenture), or event that with the passage of time or the giving of notice or both would become an Event of Default, has occurred and is continuing, then the obligations and duties of the Remarketing Agents under this Agreement shall be suspended until such Event of Default or event has been cured. NEE and NEE Capital will cause the Indenture Trustee to give the Remarketing Agents notice of all such Events of Default and events of which the Indenture Trustee is aware.

 

Section 8. Indemnification. (a) NEE and NEE Capital, jointly and severally, agree to indemnify each Remarketing Agent and each Reset Agent, and their respective affiliates, directors and officers and each person who controls a Remarketing Agent or Reset Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such person being an “Indemnified Party”) from and against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject under any applicable federal or state statute, regulation or common law, and related to or arising out of any acts or omissions of the Remarketing Agents and Reset Agents in connection with their respective duties and obligations as contemplated by Section 2 of this Agreement and will reimburse any Indemnified Party for all expenses (including, to the extent hereinafter provided, reasonable attorney fees and expenses) as they are incurred by them in connection with the investigation or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party. Neither NEE nor NEE Capital will be liable to any Indemnified Party under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from a Remarketing Agent’s or Reset Agent’s bad faith, willful misconduct or negligence. NEE and NEE Capital also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to NEE, NEE Capital or any of their respective security holders or creditors related to or arising out of any acts or omissions of a Remarketing Agent or Reset Agent in connection with its duties and obligations as contemplated by Section 2 hereof, except to the extent that any loss, claim, damage or liability is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from a Remarketing Agent’s or Reset Agent’s bad faith, willful misconduct or negligence.

 

(b) If the indemnification provided for in Section 8(a) shall be unenforceable for any reason, NEE and NEE Capital, jointly and severally, agree to contribute to the losses, claims, damages and liabilities for which such indemnification shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of NEE and NEE Capital on the one hand and the Remarketing Agents and/or Reset Agents, as the case may be, on the other in connection with the acts or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by NEE and NEE Capital of the work performed by the Remarketing Agents and Reset Agents as contemplated by the Agreement, on the one hand, and the value of the engagement to the Remarketing Agents and Reset Agents on the other hand, and (iii) any other relevant equitable considerations; provided, however, that no Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any party who is not guilty of such fraudulent misrepresentation. NEE, NEE Capital and each Remarketing Agent and Reset Agent agrees that it would not be just and equitable if contribution pursuant to this Section 8(b) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above.

6 

 

(c) Each Indemnified Party shall give written notice as promptly as reasonably practicable to NEE and NEE Capital of any action commenced against it in respect of which indemnification or contribution may be sought hereunder but failure to so notify NEE and NEE Capital hereunder of any such action shall not relieve NEE or NEE Capital of any liability hereunder except to the extent NEE or NEE Capital is materially prejudiced as a result of such failure to notify. NEE and NEE Capital may participate at their own expense in the defense of any such action and may, at their option, jointly assume the defense thereof with counsel selected by NEE and NEE Capital and reasonably acceptable to the Indemnified Party who shall be a defendant in such action, and such Indemnified Party shall bear the fees and expenses of any additional counsel retained by it. If the defendants in any such action include both the Indemnified Party and NEE or NEE Capital or both and counsel for NEE and/or NEE Capital shall have reasonably concluded that there may be a conflict of interest involved in the representation by a single counsel of both the Indemnified Party and NEE and/or NEE Capital, the Indemnified Party shall have the right to select separate counsel, satisfactory to NEE and NEE Capital, provided that, in no event shall NEE and NEE Capital be liable for the fees and expenses of more than one counsel separate from their own counsel in addition to local counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. NEE, NEE Capital, the Remarketing Agents and the Reset Agents each agree that without the prior written consent of the other parties to such action who are parties to this Agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section 8, unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

 

Section 9. Termination of Remarketing Agreement. Unless otherwise terminated in accordance with the provisions hereof and except as otherwise provided herein, this Agreement shall remain in full force and effect from the date hereof until the first day after the date on which no Debentures are outstanding, or, if earlier, the Business Day immediately following the earlier of (i) the Reset Effective Date or (ii) the Purchase Contract Settlement Date. Notwithstanding any such termination, the obligations set forth in Section 3 and Section 8 hereof shall survive and remain in full force and effect until all amounts payable under said Section 3 and Section 8 shall have been paid in full. In addition, each former Remarketing Agent and Reset Agent shall be entitled to the rights and benefits, and subject to the obligations, under Section 8 hereof, notwithstanding any such termination or the replacement or resignation of such Remarketing Agent or Reset Agent.

 

Section 10. Performance; Duty of Care. The duties and obligations of the Remarketing Agents and of the Reset Agents hereunder shall be determined solely by the express provisions of this Agreement and the Supplemental Remarketing Agreement.

7 

 

Section 11. Governing Law. The validity and interpretation of this Agreement shall be governed by the laws of the State of New York, including Section 5-1401 of the New York General Obligations Law, without regard to conflict of laws principles thereunder.

 

Section 12. Successors and Assigns. The rights and obligations of NEE or NEE Capital hereunder may not be assigned or delegated to any other person without the prior written consent of the Remarketing Agents, the Reset Agents and the Purchase Contract Agent. The rights and obligations of the Remarketing Agents or the Reset Agents hereunder may not be assigned or delegated to any other person without the prior written consent of NEE and NEE Capital. This Agreement shall inure to the benefit of and be binding upon NEE, NEE Capital, the Purchase Contract Agent, the Remarketing Agents and the Reset Agents, and their respective successors and assigns. The terms “successors” and “assigns” shall not include any purchaser of the Debentures merely because of such purchase.

 

Section 13. Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement.

 

Section 14. Severability. If any provision of this Agreement shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any or all jurisdictions because it conflicts with any provisions of any constitution, statute, rule or public policy or for any other reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case, circumstances or jurisdiction, or of rendering any other provision or provisions of this Agreement invalid, inoperative or unenforceable to any extent whatsoever.

 

Section 15. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

Section 16. Amendments. This Agreement may be amended by any instrument in writing signed by the parties hereto.

 

Section 17. Notices. Unless otherwise specified, any notices, requests, consents or other communications given or made hereunder or pursuant hereto shall be made in writing or transmitted by any standard form of telecommunication, including telephone or facsimile, and confirmed in writing. All written notices and confirmations of notices by telecommunication shall be deemed to have been validly given or made when delivered or mailed, by registered or certified mail, return receipt requested and postage prepaid or transmitted by facsimile. All such notices, requests, consents or other communications shall be addressed as follows: if to NEE or NEE Capital, to NextEra Energy, Inc., 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer; if to the Remarketing Agents or the Reset Agents, to __________, ________________________________________, __________, __________, __________, __________ __________ and __________, __________, __________, __________ __________; and if to the Purchase Contract Agent, The Bank of New York Mellon, __________, __________, __________, __________ __________, Attention: __________, or to such other address, or such facsimile number, as any of the above shall specify to the others in writing.

8 

 

Section 18. Rights of the Purchase Contract Agent. Notwithstanding any other provision of this Agreement, the Purchase Contract Agent shall be entitled to all the rights, protections and privileges granted to the Purchase Contract Agent in the Purchase Contract Agreement. The Purchase Contract Agent assumes no responsibility for correctness of the recitals contained herein. The Purchase Contract Agent makes no representations as to the validity or sufficiency of this Agreement or the validity of the Debentures. The Purchase Contract Agent shall not be accountable for the use or application of the proceeds from the Debentures, including without limitation, the Subject Debentures.

9 

 

IN WITNESS WHEREOF, each of NEE, NEE Capital, the Remarketing Agents, the Reset Agents and the Purchase Contract Agent has caused this Remarketing Agreement to be executed in its name and on its behalf by one of its duly authorized officers as of the date first above written.

 

  NEXTERA ENERGY, INC.
     
  By:   
    Name:
    Title:
     
  NEXTERA ENERGY CAPITAL HOLDINGS, INC.
     
  By:   
    Name:
    Title:

 

CONFIRMED AND ACCEPTED:    
     
________________,   THE BANK OF NEW YORK MELLON
as Remarketing Agent and Reset Agent   not individually but solely as Purchase
    Contract Agent and as attorney-in-fact for
    the holders of the Purchase Contracts
By:       
     
    By:   
      Name:
________________,     Title:
as Remarketing Agent and Reset Agent  
     
By:       
     
________________,    
as Remarketing Agent and Reset Agent    
     
By:       
         

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Exhibit A to

Remarketing Agreement

 

FORM OF SUPPLEMENTAL REMARKETING AGREEMENT

 

1.            Introductory. This Supplemental Remarketing Agreement (this “Agreement”) supplements the Remarketing Agreement, dated ________________ (the “Remarketing Agreement”), between the parties hereto, and the terms of this Agreement, taken together with the terms of the Remarketing Agreement, constitute the entire agreement between the parties with respect to the Remarketing of $__________ aggregate principal amount of NextEra Energy Capital Holdings, Inc.’s (“NEE Capital”) Series __ Debentures due ________________ (the “Subject Debentures”). All such Subject Debentures have been tendered for Remarketing by the holders thereof who have elected to have their Separate Debentures remarketed during the Period for Early Remarketing or during the Final Three-Day Remarketing Period, or are Debentures underlying the Pledged Applicable Ownership Interests in Debentures of Holders of Corporate Units with respect to a Remarketing during the Period for Early Remarketing, or are Debentures underlying the Pledged Applicable Ownership Interests in Debentures of Holders of Corporate Units who have not given notice that they intend to effect a Cash Settlement of the Purchase Contracts that are a component of their Corporate Units in accordance with the Purchase Contract Agreement with respect to a Remarketing during the Final Three-Day Remarketing Period and have not early settled their Purchase Contracts, and such Subject Debentures have not been called for Mandatory Redemption or Special Event Redemption. Each of __________, __________ and __________ (the “Remarketing agents”) hereby agrees, subject to the terms and conditions set forth herein or incorporated herein, to use its commercially reasonable efforts to remarket the Subject Debentures on the terms set forth in Schedule I hereto.

 

2.            Definitions. Terms defined or incorporated by reference in the Remarketing Agreement are used herein with the meaning ascribed to them therein or in the definitions incorporated therein by reference.

 

3.            Registration Statement and Prospectus. [If required (in the opinion of counsel to either (i) the Remarketing Agents or (ii) NextEra Energy, Inc. and NEE Capital) by applicable law, regulations or interpretations currently in effect;] NextEra Energy, Inc. (“NEE”) and NEE Capital have filed with the Securities and Exchange Commission (“Commission”), and there has become effective, a registration statement on Form S-3 [(Nos. 333-__________] relating to the Subject Debentures. Such registration statement and the documents incorporated by reference therein, as amended to the date of this Agreement, is hereinafter referred to as the “Registration Statement,” and the prospectus included in the Registration Statement, as amended or supplemented to the date of this Agreement to relate to the Subject Debentures and to the Remarketing of the Subject Debentures and the documents incorporated by reference therein, is hereinafter referred to as the “Prospectus.”

 

 

4.            Provisions Incorporated by Reference.

 

[incorporate the following text, beginning with paragraph (a), including the specified replacement text for Section 10 of the Underwriting Agreement (as defined below), if the Remarketing Agents have determined, based on advice of counsel, that applicable law, regulations or interpretations of the Commission make it necessary or advisable to deliver a current prospectus or other offering document in connection with this Remarketing:

 

(a) The entirety of the Underwriting Agreement, dated ________________ (the “Underwriting Agreement”), between NEE, NEE Capital and the representatives of the underwriters (other than the Schedules thereto and Section __, Section __, Section __ and Section __ thereof and Section __(__), Section __(__), and Section __(__) thereof) shall be incorporated by reference into this Agreement and, to the extent they are relevant to a Remarketing of the Subject Debentures, made applicable hereto, except as explicitly amended hereby; provided that (i) the representations and warranties contained in the Underwriting Agreement shall be modified, to the extent necessary and in form and substance reasonably acceptable to the Remarketing Agents, to reflect any changes in the operations and business of NEE and NEE Capital that occurred between the date of the execution of the Remarketing Agreement and the date of the execution of this Agreement, (ii) the following representation shall be added as a representation of both NEE and NEE Capital: “The Remarketing Agreement and this Agreement each constitutes a valid and binding obligation of [NEE] [NEE Capital] enforceable against [NEE] [NEE Capital] in accordance with its terms, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought and subject to any principles of public policy limiting the rights to enforce the indemnification and exculpation provisions contained in the Remarketing Agreement and this Agreement.” and (ii) the following Section 10 shall replace Section 10 of the Underwriting Agreement in its entirety:

A-2 

 

“10. Indemnification.

 

(a) NEE and NEE Capital, jointly and severally, agree to indemnify and hold harmless each Remarketing Agent, each officer and director of each Remarketing Agent, and each person (a “Controlling Person”) who controls any Remarketing Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law, and to reimburse each such Remarketing Agent, officer, director and Controlling Person for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, including all Incorporated Documents, or in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the indemnity agreement contained in this Section 10(a) shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with information furnished in writing, to NEE or NEE Capital by or on behalf of any Remarketing Agent expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof, or arising out of, or based upon, statements in or omissions from the Statements of Eligibility; and provided, further, that the indemnity agreement contained in this Section 10(a) in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall not inure to the benefit of any Remarketing Agent (or of any officer or director or Controlling Person of such Remarketing Agent) on account of any such losses, claims, damages, liabilities, expenses or actions arising from the Remarketing of the Subject Debentures to any person in respect of any preliminary prospectus supplement, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may be then supplemented or amended, furnished by such Remarketing Agent to a person to whom any of the Subject Debentures were remarketed (excluding in all cases, however, any document then incorporated by reference therein), insofar as such indemnity relates to any untrue or misleading statement made in or omission from such preliminary prospectus supplement, Pricing Prospectus, Issuer Free Writing Prospectus or Prospectus, if a copy of a supplement or amendment to such preliminary prospectus supplement, Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus (excluding in all cases, however, any document then incorporated by reference therein) (i) is furnished on a timely basis by NEE Capital or NEE to the Remarketing Agent, (ii) is required by law or regulation to have been conveyed to such person by or on behalf of such Remarketing Agent, at or prior to the entry into the contract of sale of the Subject Debentures with such person, but was not so conveyed (which conveyance may be oral or written) by or on behalf of such Remarketing Agent and (iii) would have cured the defect giving rise to such loss, claim, damage or liability. The indemnity agreement of NEE and NEE Capital contained in this Section 10(a) and the representations and warranties of NEE and NEE Capital contained in Section 3 and Section 4 hereof, respectively, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Remarketing Agent or any of its officers, directors or Controlling Persons, and shall survive the Remarketing of the Subject Debentures. Each Remarketing Agent agrees promptly to notify each of NEE and NEE Capital, and each other Remarketing Agent, of the commencement of any litigation or proceedings against the notifying Remarketing Agent, or any of its officers, directors or Controlling Persons, in connection with the Remarketing of the Subject Debentures.

A-3 

 

(b) Each Remarketing Agent, severally and not jointly, agrees to indemnify and hold harmless each of NEE and NEE Capital, their respective officers and directors, and each person who controls NEE or NEE Capital, as the case may be, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and to reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) when and as incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon and in conformity with information furnished in writing to NEE or NEE Capital by or on behalf of such Remarketing Agent expressly for use in connection with the preparation of any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any thereof. The Remarketing Agents hereby furnish to NEE and NEE Capital in writing expressly for use in the preliminary prospectus supplement, dated ________, the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus, the following: [insert information provided by the Remarketing Agents]. NEE and NEE Capital each acknowledge that the statements identified in the preceding [__] sentence[s] constitute the only information furnished in writing by or on behalf of the Remarketing Agents expressly for inclusion in the preliminary prospectus supplement, dated ___________, the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus. The respective indemnity agreement of each Remarketing Agent contained in this Section 10(b) shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of NEE or NEE Capital or any of their respective officers or directors or any person who controls NEE or NEE Capital within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of any other Remarketing Agent or any of its officers, directors or Controlling Persons, and shall survive the Remarketing of the Subject Debentures. NEE and NEE Capital agree promptly to notify the Remarketing Agents of the commencement of any litigation or proceedings against NEE, NEE Capital (or any of their respective controlling persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) or any of their respective officers or directors in connection with the Remarketing of the Subject Debentures.

A-4 

 

(c) NEE, NEE Capital and each of the several Remarketing Agents each agree that, upon the receipt of notice of the commencement of any action against it, its officers and directors, or any person controlling it as aforesaid, in respect of which indemnity or contribution may be sought under the provisions of this Section 10, it will promptly give written notice of the commencement thereof to the party or parties against whom indemnity or contribution shall be sought thereunder, but the omission so to notify such indemnifying party or parties of any such action shall not relieve such indemnifying party or parties from any liability which it or they may have to the indemnified party otherwise than on account of this indemnity agreement. In case such notice of any such action shall be so given, such indemnifying party or parties shall be entitled to participate at its own expense in the defense or, if it so elects, to assume (in conjunction with any other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party or parties and reasonably satisfactory to the indemnified party or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel retained by them; but if the indemnifying party or parties shall elect not to assume the defense of such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and counsel for the indemnifying party shall have reasonably concluded that there may be a conflict of interest involved in the representation by such counsel of both the indemnifying party and the indemnified party, the indemnified party or parties shall have the right to select separate counsel, satisfactory to the indemnifying party or parties, to participate in the defense of such action on behalf of such indemnified party or parties at the expense of the indemnifying party or parties (it being understood, however, that the indemnifying party or parties shall not be liable for the expenses of more than one separate counsel representing the indemnified parties who are parties to such action). NEE, NEE Capital and each of the several Remarketing Agents each agree that without the prior written consent of the other parties to such action who are parties to this Agreement, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim or proceeding in respect of which such party intends to seek indemnity or contribution under the provisions of this Section 10, unless such settlement, compromise or consent (i) includes an unconditional release of such other parties from all liability arising out of such claim or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other parties.

A-5 

 

(d) If, or to the extent, the indemnification provided for in Section 10(a) or Section 10(b) hereof shall be unenforceable under applicable law by an indemnified party, each indemnifying party agrees to contribute to such indemnified party with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in Section 10(a) or Section 10(b) hereof shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative fault of NEE and NEE Capital on the one hand and the Remarketing Agents on the other hand in connection with the statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, (ii) the relative benefits received by NEE and NEE Capital on the one hand and the Remarketing Agents on the other hand from the Remarketing of the Subject Debentures pursuant to this Agreement, and (iii) any other relevant equitable considerations; provided, however, that no indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution with respect thereto from any indemnifying party not guilty of such fraudulent misrepresentation. Relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by NEE and NEE Capital or the Remarketing Agents and each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. NEE, NEE Capital and each of the Remarketing Agents each agree that it would not be just and equitable if contribution pursuant to this Section 10(d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 10(d), no Remarketing Agent shall be required to contribute in excess of the amount equal to the excess of (i) the total price at which the Subject Debentures remarketed by it were offered to the public, over (ii) the amount of any damages which such Remarketing Agent has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Remarketing Agent to contribute pursuant to this Section 10(d) are several and not joint and shall be in the same proportion as such Remarketing Agent’s obligation to remarket the Subject Debentures is to the total principal amount of the Subject Debentures set forth in Schedule II hereto.”]

 

[(b)] To the extent the Underwriting Agreement is applicable hereto, references therein to (i) the “Underwriter” or “Underwriters” or the “Representative” or “Representatives”, as the case may be, shall be deemed to refer to the Remarketing Agent or Remarketing Agents, as the case may be; (ii) “Securities” shall be deemed to refer to the Subject Debentures; (iii) “this Agreement” shall be deemed to refer to the Remarketing Agreement as supplemented by this Agreement, (iv) “the date hereof” shall be deemed to refer to the date of a Successful Remarketing, and (v) “Closing Date” shall be deemed to refer to the Remarketing Closing Date (as defined below). To the extent the provisions of the Underwriting Agreement refer to the “preliminary prospectus supplement,” the “Prospectus,” the “Pricing Prospectus,” the “Registration Statement,” the “Pricing Disclosure Package,” a “Free Writing Prospectus,” and an “Issuer Free Writing Prospectus,” such references shall be deemed to (i) refer to any preliminary prospectus supplement, prospectus, pricing prospectus, registration statement, free writing prospectus or issuer free writing prospectus, or other offering document, that NEE and NEE Capital are required to prepare or file with respect to the Subject Debentures, or the documents which constitute the pricing disclosure package with respect to the Subject Debentures, pursuant to applicable law, regulations or interpretations of the Commission in effect at the time of the Remarketing of such Subject Debentures, including all documents incorporated by reference therein and (ii) refer to each such document as amended or supplemented to the date of a Successful Remarketing. The term “Incorporated Documents” in the Underwriting Agreement shall be deemed to include those filed by NEE and incorporated by reference in the Registration Statement. References to issuance and/or sale of Debentures shall be deemed to refer to Remarketing of the Subject Debentures.

A-6 

 

5.            Purchase and Sale; Remarketing Fee. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth or incorporated herein, the Remarketing Agents agree to use their commercially reasonable efforts to remarket, and to purchase from the registered holder or holders thereof in the manner specified in Section 6 hereof, the principal amount of the Subject Debentures set forth in Schedule I hereto at a price equal to or greater than 100% of [the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price]2 [the aggregate principal amount of the Subject Debentures]3 plus the applicable Remarketing Fee. In connection therewith, under the terms of the Debentures the registered holder or holders thereof has/have agreed, in the manner, and from the portion of the proceeds, specified in Section 6 hereof, to pay to the Remarketing Agents a Remarketing Fee equal to ___ basis points (___%) of [the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price] [the aggregate principal amount of the Subject Debentures]. If fewer than all of the Subject Debentures are remarketed in accordance with the terms hereof, or a condition precedent set forth in the Purchase Contract Agreement is not fulfilled, the Remarketing shall be deemed to have failed as to all Subject Debentures.

 

6.            Time, Date and Place of Closing. Delivery of the Subject Debentures and payment therefor by wire transfer in federal funds shall be made at ______ [A.M./P.M.], New York City time, on the settlement date set forth on Schedule I, at the offices of ____________, ____________, ____________, ____________. The time and date of such delivery and payment are herein called the “Remarketing Closing Date”), which date and time may be postponed by agreement between the Remarketing Agents, NEE, NEE Capital and the registered holder or holders of the Subject Debentures. Delivery of the Subject Debentures to be remarketed shall be made by the Collateral Agent and the Custodial Agent, as applicable, to the Remarketing Agents on the Business Day immediately preceding the first Remarketing Date of the applicable Three-Day Remarketing Period [selected by NEE Capital pursuant to the Officer’s Certificate]. Upon a successful Remarketing, the Remarketing Agents may deduct the Remarketing Fee from any amount of such Remarketing proceeds in excess of the [Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price] [aggregate principal amount of the Subject Debentures] or, if the remarketed Debentures are represented by a global certificate, payment of the Remarketing Fee may be made by any method of transfer agreed upon by the Remarketing Agents and the Depositary for the Debentures under the Indenture. Upon a Successful Remarketing, the Remarketing Agents shall deliver the proceeds of such Remarketing (after deducting the Remarketing Fee described in the preceding sentence) to the Collateral Agent in exchange for the Pledged Debentures in accordance with Section 4.3 of the Purchase Contract Agreement.

 

 

2 With respect to a Successful Remarketing during the Period for Early Remarketing. 

3 With respect to a Successful Remarketing during the Final Three-Day Remarketing Period.

A-7 

 

If the Debentures are not represented by a global certificate, certificates for the Debentures shall be registered in such names and denominations as the Remarketing Agents may request, and NEE Capital agrees to have such certificates available for inspection, packaging and checking by the Remarketing Agents in New York, New York not later than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.

 

7.           Notices. All communications hereunder shall be in writing and, if to the Remarketing Agents or the Reset Agents, shall be mailed or delivered to the Remarketing Agents or Reset Agents to __________, __________, __________, __________ __________, __________, __________, __________, __________ __________ and __________, __________, __________, __________ __________, if to NEE or NEE Capital, shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer, or if to the Purchase Contract Agent, The Bank of New York Mellon, __________, __________, __________, __________ __________, Attention: __________, or to such other address as any of the above shall specify to the other in writing. All written notices and confirmations of notices by telecommunication shall be deemed to have been validly given or made when delivered or mailed, by registered or certified mail, return receipt requested and postage prepaid.

 

8.            Termination. This Agreement may be terminated by the Remarketing Agents by delivering written notice thereof to NEE and NEE Capital, at any time prior to the Remarketing Closing Date, if after the date hereof and at or prior to the Remarketing Closing Date:

 

(a) (i) there shall have occurred any general suspension of trading in securities on The New York Stock Exchange LLC (the “NYSE”) or there shall have been established by the NYSE or by the Commission or by any federal or state agency or by the decision of any court any limitation on prices for such trading or any general restrictions on the distribution of securities, or trading in any securities of NEE or NEE Capital shall have been suspended or limited by any exchange located in the United States or on the over-the-counter market located in the United States or a general banking moratorium declared by New York or federal authorities or (ii) there shall have occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities, including, but not limited to, an escalation of hostilities which existed prior to the date hereof, any other national or international calamity or crisis or any material adverse change in financial, political or economic conditions affecting the United States, the effect of any such event specified in this clause (ii) being such as to make it, in the reasonable judgment of the Remarketing Agents, impracticable or inadvisable to proceed with the Remarketing of the Subject Debentures as contemplated in the Pricing Disclosure Package or for the Remarketing Agents to enforce contracts for the sale of the Subject Debentures; or

 

(b) (i) there shall have been any downgrading or any notice of any intended or potential downgrading in the ratings accorded to the Subject Debentures or any securities of NEE Capital which are of the same class as the Subject Debentures by either Moody’s Investors Service, Inc. (“Moody’s”) or S&P Global Ratings, a division of S&P Global Inc. (“S&P”), or (ii) either Moody’s or S&P shall have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Subject Debentures or any securities of NEE Capital which are of the same class as the Subject Debentures, the effect of any such event specified in (i) or (ii) above being such as to make it, in the reasonable judgment of the Remarketing Agents, impracticable or inadvisable to proceed with the Remarketing of the Subject Debentures as contemplated in the Pricing Disclosure Package or for the Remarketing Agents to enforce contracts for the sale of the Subject Debentures.

A-8 

 

This Agreement may also be terminated at any time prior to the Remarketing Closing Date if in the judgment of the Remarketing Agents the subject matter of any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus prepared and furnished by NEE and NEE Capital after the date hereof reflects a material adverse change in the business, properties or financial condition of NEE and its subsidiaries taken as a whole or NEE Capital and its subsidiaries taken as a whole which renders it either inadvisable to proceed with such Remarketing or inadvisable to proceed with the delivery of, or to enforce contracts for the sale of, the Subject Debentures. Any termination of this Agreement pursuant to this Section 8 shall be without liability of any party to any other party except as otherwise provided in Section ___ and Section ___ hereof.

 

9.            Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

10.          Recognition of the U.S. Special Resolution Regimes.

 

(a)         In the event that any Remarketing Agent that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Remarketing Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)         In the event that any Remarketing Agent that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Remarketing Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Remarketing Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

A-9 

 

(c)         For purpose of this Section 10, (A) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) the term “Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) the term “U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

A-10 

 

If the foregoing correctly sets forth our understanding, please indicate your acceptance in the space provided below for that purpose, whereupon this letter and your acceptance shall constitute a binding agreement between NEE, NEE Capital, the Remarketing Agents and the Purchase Contract Agent.

 

  Very truly yours,
   
  NEXTERA ENERGY, INC.
   
  By:   
    Name:
    Title:
   
  NEXTERA ENERGY CAPITAL HOLDINGS, INC.
   
  By:   
    Name:
    Title:

 

Accepted and delivered as of    
the date first above written:    
     
________________,   THE BANK OF NEW YORK MELLON
as Remarketing Agent and Reset Agent   not individually but solely as Purchase
    Contract Agent and as attorney-in-fact
    for the holders of the Purchase Contracts
By:      
     
________________,   By:  
as Remarketing Agent and Reset Agent     Name:
      Title:
     
By:      
     
________________,    
as Remarketing Agent and Reset Agent    
     
By:      
         
     

A-11 

 

SCHEDULE I

 

Title of Subject Debentures: Series __ Debentures due ________________

 

Principal Amount of Subject Debentures:

 

Date of Maturity of Subject Debentures:

 

Interest Payment Dates:

 

Coupon Rate:

 

Price to Public:

 

Settlement Date:

 

[Include additional pricing information]

A-12

 

Exhibit 4(k)

 

This instrument was prepared by:

 

Florida Power & Light Company

700 Universe Boulevard

Juno Beach, Florida 33408

 

 

 

FLORIDA POWER & LIGHT COMPANY

 

to

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

(formerly known as Bankers Trust Company)

 

As Trustee under Florida Power & Light
Company’s Mortgage and Deed of Trust,
Dated as of January 1, 1944.

 

________________________ Supplemental Indenture

 

[Relating to $___________ Principal Amount
of First Mortgage Bonds, ____% Series
due _________, ____]

 

[Relating to a Principal Amount
Not To Exceed $____
of First Mortgage Bonds, designated
Secured Medium-Term Notes, Series ____]

 

Dated as of ___________, ____

 

 

 

 

 

 

FLORIDA POWER & LIGHT COMPANY

 

Reconciliation and Tie of Provisions of Trust Indenture Act of 1939 to provisions of Mortgage and Deed of Trust to Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) and The Florida National Bank of Jacksonville (now resigned), as Trustees, dated as of January 1, 1944, as amended. 

 

Sections of Act:   Sections of Mortgage and
Supplemental Indentures
     
310(a) (1) (2) (3)   Mortgage, 35(a), 88 and 103
310(a) (4)   Not Applicable
310(b)   Mortgage, 99; First Supplemental, 14; Seventh Supplemental, 6
311(a)   Mortgage, 98
311(b)   Mortgage, 98
312(a)   Mortgage, 43(a) and 43(b)
312(b)   Mortgage, 43(c)
312(c)   Mortgage, 43(d)
313(a)   Mortgage, 100(a)
313(b)   Mortgage, 100(b); First Supplemental, 15
313(c)   Mortgage, 100(c)
313(d)   Mortgage, 100(d)
314(a)   Mortgage, 44
314(b)   Mortgage, 42
314(c)   Mortgage, 121, 3, 61 and 7
314(d)   Mortgage, 59(3), 60, 3 and 28(4)
314(e)   Mortgage, 121, 3 and 61
314(f)   Omitted
315(a)   Mortgage, 89 and 88; First Supplemental, 13
315(b)   Mortgage, 66 and 3; First Supplemental, 11
315(c)   Mortgage, 88
315(d)   Mortgage, 89; First Supplemental, 13
315(e)   Mortgage, 122
316(a) (1)   Mortgage, 71; First Supplemental, 12
316(a) (2)   Omitted
316(b)   Mortgage, 80
317(a)   Mortgage, 78
317(b)   Mortgage, 35(c) and 95; First Supplemental, 7
318(a)   Mortgage, 124

 

 

 

 

________________________ SUPPLEMENTAL INDENTURE

 

INDENTURE, dated as of the ___ day of _________, ____, made and entered into by and between Florida Power & Light Company, a corporation of the State of Florida, whose post office address is 700 Universe Boulevard, Juno Beach, Florida 33408 (hereinafter sometimes called “FPL”), and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), a corporation of the State of New York, whose post office address is 60 Wall Street, 24th Floor, New York, New York 10005 (hereinafter called the “Trustee”), as the ________________________ supplemental indenture (hereinafter called the “________________________ Supplemental Indenture”) to the Mortgage and Deed of Trust, dated as of January 1, 1944 (hereinafter called the “Mortgage”), made and entered into by FPL, the Trustee and The Florida National Bank of Jacksonville, as Co-Trustee (now resigned), the Trustee now acting as the sole trustee under the Mortgage, which Mortgage was executed and delivered by FPL to secure the payment of bonds issued or to be issued under and in accordance with the provisions thereof, reference to which Mortgage is hereby made, this ________________________ Supplemental Indenture being supplemental thereto;

 

Whereas, by an instrument, dated as of April 15, 2002, filed with the Banking Department of the State of New York, Bankers Trust Company effected a corporate name change pursuant to which, effective such date, it is known as Deutsche Bank Trust Company Americas; and

 

Whereas, FPL has transferred to New Hampshire Transmission, LLC, a Delaware limited liability company, all of FPL’s property located in the State of New Hampshire that previously was subject to the lien of the Mortgage, and the Trustee by instrument dated June 29, 2010 (the “Release”) released such property from the lien of the Mortgage, and released and discharged the supplemental indentures and mortgages recorded in the State of New Hampshire listed on Exhibit B to the Release; and

 

Whereas, Section 8 of the Mortgage provides that the form of each series of bonds (other than the first series) issued thereunder shall be established by Resolution of the Board of Directors of FPL and that the form of such series, as established by said Board of Directors, shall specify the descriptive title of the bonds and various other terms thereof, and may also contain such provisions not inconsistent with the provisions of the Mortgage as the Board of Directors may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Mortgage; and

 

Whereas, Section 120 of the Mortgage provides, among other things, that any power, privilege or right expressly or impliedly reserved to or in any way conferred upon FPL by any provision of the Mortgage, whether such power, privilege or right is in any way restricted or is unrestricted, may be in whole or in part waived or surrendered or subjected to any restriction if at the time unrestricted or to additional restriction if already restricted, and FPL may enter into any further covenants, limitations or restrictions for the benefit of any one or more series of bonds issued thereunder, or FPL may cure any ambiguity contained therein, or in any supplemental indenture, or may establish the terms and provisions of any series of bonds other than the first series, by an instrument in writing executed and acknowledged by FPL in such manner as would be necessary to entitle a conveyance of real estate to be recorded in all of the states in which any property at the time subject to the Lien of the Mortgage shall be situated; and

 

- 1 -

 

 

Whereas, as of 12:01 a.m. on January 1, 2021, pursuant to the Agreement and Plan of Merger dated as of December 18, 2020 between Gulf Power Company, a corporation of the State of Florida (hereinafter called “Gulf Power”), and FPL, Gulf Power was merged into FPL with FPL as the surviving corporation; and

 

Whereas, FPL now desires to create the series of bonds described in Article I hereof and to add to its covenants and agreements contained in the Mortgage certain other covenants and agreements to be observed by it and to alter and amend in certain respects the covenants and provisions contained in the Mortgage; and

 

Whereas, the execution and delivery by FPL of this ________________________ Supplemental Indenture, and the terms of the bonds, hereinafter referred to in Article I, have been duly authorized by the Board of Directors of FPL by appropriate resolutions of said Board of Directors;

 

Now, Therefore, This Indenture Witnesseth: That FPL, in consideration of the premises and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in further evidence of assurance of the estate, title and rights of the Trustee and in order further to secure the payment of both the principal of and interest and premium, if any, on the bonds from time to time issued under the Mortgage, according to their tenor and effect, and the performance of all the provisions of the Mortgage (including any instruments supplemental thereto and any modification made as in the Mortgage provided) and of said bonds, hereby grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, pledges, sets over and confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of the Mortgage) unto Deutsche Bank Trust Company Americas, as Trustee under the Mortgage, and to its successor or successors in said trust, and to said Trustee and its successors and assigns forever, all property, real, personal and mixed, acquired by FPL after the date of the execution and delivery of the Mortgage (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted), now owned (except any properties heretofore released pursuant to any provisions of the Mortgage and in the process of being sold or disposed of by FPL) or, subject to the provisions of Section 87 of the Mortgage, hereafter acquired by FPL and wheresoever situated, including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing) all lands, power sites, flowage rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites, aqueducts, and all rights or means for appropriating, conveying, storing and supplying water; all rights of way and roads; all plants for the generation of electricity by steam, water and/or other power; all power houses, gas plants, street lighting systems, standards and other equipment incidental thereto, telephone, radio and television systems, air-conditioning systems and equipment incidental thereto, water works, water systems, steam heat and hot water plants, substations, lines, service and supply systems, bridges, culverts, tracks, ice or refrigeration plants and equipment, offices, buildings and other structures and the equipment thereof; all machinery, engines, boilers, dynamos, electric, gas and other machines, regulators, meters, transformers, generators, motors, electrical, gas and mechanical appliances, conduits, cables, water, steam heat, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and connections, pole and transmission lines, wires, cables, tools, implements, apparatus, furniture, chattels, and choses in action; all municipal and other franchises, consents or permits; all lines for the transmission and distribution of electric current, gas, steam heat or water for any purpose including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus for use in connection therewith; all real estate, lands, easements, servitudes, licenses, permits, franchises, privileges, rights of way and other rights in or relating to real estate or the occupancy of the same and (except as herein or in the Mortgage, as heretofore supplemented, expressly excepted) all the right, title and interest of FPL in and to all other property of any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in connection with any property hereinbefore or in the Mortgage, as heretofore supplemented, described.

 

- 2 -

 

 

Together With all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which FPL now has or may hereinafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.

 

It Is Hereby Agreed by FPL that, subject to the provisions of Section 87 of the Mortgage, all the property, rights, and franchises acquired by FPL after the date hereof (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted) shall be and are as fully granted and conveyed hereby and as fully embraced within the Lien of the Mortgage, as if such property, rights and franchises were now owned by FPL and were specifically described herein and conveyed hereby.

 

Provided that the following are not and are not intended to be now or hereafter granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed hereunder and are hereby expressly excepted from the Lien and operation of this ________________________ Supplemental Indenture and from the Lien and operation of the Mortgage, as heretofore supplemented, viz: (1) cash, shares of stock, bonds, notes and other obligations and other securities not hereafter specifically pledged, paid, deposited, delivered or held under the Mortgage or covenanted so to be; (2) merchandise, equipment, materials or supplies held for the purpose of sale in the usual course of business and fuel (including Nuclear Fuel unless expressly subjected to the Lien and operation of the Mortgage by FPL in a future supplemental indenture), oil and similar materials and supplies consumable in the operation of any properties of FPL; rolling stock, buses, motor coaches, automobiles and other vehicles; (3) bills, notes and accounts receivable, and all contracts, leases and operating agreements not specifically pledged under the Mortgage or covenanted so to be; (4) the last day of the term of any lease or leasehold which may hereafter become subject to the Lien of the Mortgage; (5) electric energy, gas, ice, and other materials or products generated, manufactured, produced or purchased by FPL for sale, distribution or use in the ordinary course of its business; all timber, minerals, mineral rights and royalties; (6) FPL’s franchise to be a corporation; and (7) the properties already sold or in the process of being sold by FPL and heretofore released from the Mortgage and Deed of Trust, dated as of January 1, 1926, from Florida Power & Light Company to Bankers Trust Company and The Florida National Bank of Jacksonville, trustees, and specifically described in three separate releases executed by Bankers Trust Company and The Florida National Bank of Jacksonville, dated July 28, 1943, October 6, 1943 and December 11, 1943, which releases have heretofore been delivered by the said trustees to FPL and recorded by FPL among the Public Records of all Counties in which such properties are located; provided, however, that the property and rights expressly excepted from the Lien and operation of the Mortgage in the above subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so excepted in the event and as of the date that the Trustee or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XIII of the Mortgage by reason of the occurrence of a Default as defined in Section 65 thereof.

 

- 3 -

 

 

To Have And To Hold all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by FPL as aforesaid, or intended so to be, unto Deutsche Bank Trust Company Americas, the Trustee, and its successors and assigns forever.

 

In Trust Nevertheless, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisos and covenants as are set forth in the Mortgage, as heretofore supplemented, this ________________________ Supplemental Indenture being supplemental thereto.

 

And It Is Hereby Covenanted by FPL that all terms, conditions, provisos, covenants and provisions contained in the Mortgage shall affect and apply to the property hereinbefore described and conveyed and to the estate, rights, obligations and duties of FPL and the Trustee and the beneficiaries of the trust with respect to said property, and to the Trustee and its successors as Trustee of said property in the same manner and with the same effect as if said property had been owned by FPL at the time of the execution of the Mortgage, and had been specifically and at length described in and conveyed to said Trustee, by the Mortgage as a part of the property therein stated to be conveyed.

 

FPL further covenants and agrees to and with the Trustee and its successors in said trust under the Mortgage, as follows:

 

ARTICLE I
_____________________ Series of Bonds

 

Section 1.     1(I) There shall be a series of bonds designated “____% Series due _________, ____”, herein sometimes referred to as the “_____________________ Series”, each of which shall also bear the descriptive title First Mortgage Bond, and the form thereof, which shall be established by Resolution of the Board of Directors of FPL, shall contain suitable provisions with respect to the matters hereinafter in this Section specified. Bonds of the _____________________ Series shall mature on __________, ____ and shall be issued as fully registered bonds in denominations of ____________ Dollars and, at the option of FPL, in integral multiples of ____________ Dollars (the exercise of such option to be evidenced by the execution and delivery thereof); they shall bear interest at the rate of ____% per annum, payable semi-annually on _______ and _________ of each year (each an “Interest Payment Date”) commencing on _____________; the principal of and interest on each said bond to be payable at the office or agency of FPL in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. Bonds of the _____________________ Series shall be dated as in Section 10 of the Mortgage provided. The record date for payments of interest on any Interest Payment Date shall be the close of business on (1) the Business Day (as defined below) immediately preceding such Interest Payment Date so long as all of the bonds of the _____________________ Series are held by a securities depository in book-entry only form or (2) the 15th calendar day immediately preceding such Interest Payment Date if any of the bonds of the _____________________ Series are not held by a securities depository in book-entry only form. Interest on the bonds of the _____________________ Series will accrue from and including ____________, ____ to but excluding _______, ____ and, thereafter, from and including the last Interest Payment Date to which interest has been paid or duly provided for (and if no interest has been paid on the bonds of the _____________________ Series, from ________________) to but excluding the next succeeding Interest Payment Date. No interest will accrue on a bond of the _____________________ Series for the day on which such bond matures. The amount of interest payable for any period will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period shorter than a full semi-annual period for which interest is computed will be computed on the basis of the number of days in the period using 30-day calendar months. If any date on which interest, principal or premium, if any, is payable on the bonds of the _____________________ Series falls on a day that is not a Business Day, then payment of the interest, principal or premium payable on that date will be made on the next succeeding day which is a Business Day, and without any interest or other payment in respect of such delay. A “Business Day” is any day that is not a Saturday, a Sunday, or a day on which banking institutions or trust companies in New York City are generally authorized or required by law or executive order to remain closed.

 

 

1 The provisions in this Section 1 will be inserted in supplemental indentures relating to the issuance of First Mortgage Bonds, provided that bracketed language may change.

 

- 4 -

 

 

(II)       [Bonds of the _____________________ Series shall be redeemable either at the option of FPL or pursuant to the requirements of the Mortgage (including, among other requirements, the application of cash delivered to or deposited with the Trustee pursuant to the provisions of Section 64 of the Mortgage or with proceeds of Released Property) in whole at any time, or in part from time to time, prior to maturity of the bonds of the _____________________ Series, upon notice as provided in Section 52 of the Mortgage, mailed at least thirty (30) days prior to the date fixed for redemption, at the applicable price described below.]2

 

(III)      At the option of the registered owner, any bonds of the _____________________ Series, upon surrender thereof for exchange at the office or agency of FPL in the Borough of Manhattan, The City of New York, together with a written instrument of transfer wherever required by FPL, duly executed by the registered owner or by his duly authorized attorney, shall (subject to the provisions of Section 12 of the Mortgage) be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.

 

 
2 These or other redemption provisions or other terms and conditions relating to the series of First Mortgage Bonds may be inserted here.

 

- 5 -

 

 

Bonds of the _____________________ Series shall be transferable (subject to the provisions of Section 12 of the Mortgage) at the office or agency of FPL in the Borough of Manhattan, The City of New York.

 

Upon any exchange or transfer of bonds of the _____________________ Series, FPL may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Mortgage, but FPL hereby waives any right to make a charge in addition thereto for any exchange or transfer of bonds of the _____________________ Series.]

 

Section 1.      3(I)  There shall be a series of bonds designated “Secured Medium-Term Notes, Series ____”, herein sometimes referred to as the “__________________ Series”, each of which shall also bear the descriptive title First Mortgage Bond, and the form thereof, which shall be established by Resolution of the Board of Directors of FPL, shall contain suitable provisions with respect to the matters hereinafter in this Section specified. Bonds of the __________________ Series shall be issued from time to time in an aggregate principal amount not to exceed $___________ at any one time Outstanding except as provided in Section 16 of the Mortgage. [The amount which may be Outstanding from time to time will be stated in one or more notices of receipt of advance under mortgage providing for future advances (a form of which is annexed hereto) executed by the Company and recorded in Palm Beach County, Florida, and in one or more acknowledgements of future advance (a form of which is annexed hereto) executed by FPL and the Trustee and recorded in Monroe County, Georgia, and in one or more acknowledgements of future advance (a form of which is annexed hereto) executed by FPL and the Trustee and recorded in Jackson County, Mississippi.] Bonds of the __________________ Series shall be issued as fully registered bonds in the denominations of ____ Dollars and, at the option of FPL, in any larger amount that is an integral multiple of ____ Dollars or any other denominations (the exercise of such option to be evidenced by the execution and delivery thereof); each bond of the __________________ Series shall mature on [such date not less than ________ months nor more than ______________ years from date of issue,] shall bear interest at [such rate or rates (which may be either fixed or variable) and have such other terms and provisions not inconsistent with the Mortgage as the Board of Directors may determine in accordance with a Resolution filed with the Trustee referring to this ________________________ Supplemental Indenture]; interest on bonds of the __________________ Series [which bear interest at a fixed rate] shall be payable [semi-annually on ___________________ and ___________________ of each year] and at maturity (each an interest payment date); interest on bonds of the __________________ Series [which bear interest at a variable rate] shall be payable [on the dates established on the Issue Date [or the Original Interest Accrual Date] with respect to such bonds and shall be set forth in such bonds.] [Notwithstanding the foregoing, so long as there is no existing default in the payment of interest on the bonds of the __________________ Series, all bonds of the __________________ Series authenticated by the Trustee after the Record Date hereinafter specified for any interest payment date, and prior to such interest payment date (unless the Issue Date [or the Original Interest Accrual Date] is after such Record Date), shall be dated the date of authentication, but shall bear interest from such interest payment date, and the person in whose name any bond of the __________________ Series is registered at the close of business on any Record Date with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date, notwithstanding the cancellation of such bond of the __________________ Series, upon any transfer or exchange thereof subsequent to the Record Date and on or prior to such interest payment date. If the Issue Date [or the Original Interest Accrual Date] of the bonds of the __________________ Series of a designated interest rate and maturity is after the Record Date, such bonds shall bear interest from the Issue Date [or the Original Interest Accrual Date] but payment of interest shall commence on the second interest payment date succeeding the Issue Date [or the Original Interest Accrual Date]. “Record Date” for bonds of the __________________ Series which bear interest at a fixed rate shall mean ___________________ for interest payable ___________________ and ___________________ for interest payable ___________________, and for bonds of the ___________________ Series which bear interest at a variable rate, the date 15 calendar days prior to any interest payment date, provided that, interest payable on the maturity date will be payable to the person to whom the principal thereof shall be payable. “Issue Date” [or “Original Interest Accrual Date”] with respect to bonds of the __________________ Series of a designated interest rate and maturity [unless a Resolution filed with the Trustee on or before such date shall specify another date from which interest shall accrue, then such other date for bonds of such designated interest rate and maturity.] shall mean the date of first authentication of bonds of such designated interest rate and maturity.] The principal of and interest on each said bond is payable at the office or agency of FPL in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. Bonds of the __________________ Series shall be dated as in Section 10 of the Mortgage provided.

 

 

3 These provisions will be inserted in any supplemental indentures relating to the issuance of First Mortgage Bonds designated Secured Medium-Term Notes, provided that the bracketed language may change.

 

- 6 -

 

 

(II)       [Bonds of the _____________________ Series shall be redeemable either at the option of FPL or pursuant to the requirements of the Mortgage (including, among other requirements, the application of cash delivered to or deposited with the Trustee pursuant to the provisions of Section 64 of the Mortgage or with proceeds of Released Property) in whole at any time, or in part from time to time, prior to maturity of the bonds of the _____________________ Series, upon notice as provided in Section 52 of the Mortgage, mailed at least thirty (30) days prior to the date fixed for redemption, as the Board of Directors may determine in accordance with a Resolution filed with the Trustee referring to this _____________________ Supplemental Indenture.]4

 

(III)      At the option of the registered owner any bonds of the _____________________ Series, upon surrender thereof for exchange at the office or agency of FPL in the Borough of Manhattan, The City of New York, together with a written instrument of transfer wherever required by FPL, duly executed by the registered owner or by his duly authorized attorney, shall (subject to the provisions of Section 12 of the Mortgage) be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations. 

 

 

4 These or other redemption provisions or other terms and conditions relating to the series of First Mortgage Bonds designated Secured Medium-Term Notes may be inserted here.

 

- 7 -

 

 

Bonds of the _____________________ Series shall be transferable (subject to the provisions of Section 12 of the Mortgage) at the office or agency of FPL in the Borough of Manhattan, The City of New York.

 

Upon any exchange or transfer of bonds of the _____________________ Series, FPL may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Mortgage, but FPL hereby waives any right to make a charge in addition thereto for any exchange or transfer of bonds of the _____________________ Series.

 

ARTICLE II
Consent to Amendments of the Mortgage

 

Section 2.      Each initial and future holder of bonds of the __________________ Series, by its acquisition of an interest in such bonds, irrevocably (a) consents to the amendments set forth in Article II of the One Hundred Twenty-Eighth Supplemental Indenture, dated as of June 15, 2018, without any other or further action by any holder of such bonds, and (b) designates the Trustee, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on behalf of such holder in favor of such amendments at any bondholder meeting, in lieu of any bondholder meeting, in any consent solicitation or otherwise.

 

ARTICLE III
Miscellaneous Provisions

 

Section 3.     Subject to the amendments provided for in this ________________________ Supplemental Indenture, the terms defined in the Mortgage, as heretofore supplemented, shall, for all purposes of this ________________________ Supplemental Indenture, have the meanings specified in the Mortgage, as heretofore supplemented.

 

Section 4.      [The holders of bonds of the __________________ Series consent that FPL may, but shall not be obligated to, fix a record date for the purpose of determining the holders of bonds of the __________________ Series entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who were holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than ninety (90) days after such record date.]5

 

 

5 This provision may be deleted in any supplemental indenture relating to the issuance of First Mortgage Bonds other than those which are issued to The Depository Trust Company, or its successor. The remaining sections will be renumbered accordingly.

 

- 8 -

 

 

Section 5.      The Trustee hereby accepts the trust herein declared, provided, created or supplemented and agrees to perform the same upon the terms and conditions herein and in the Mortgage, as heretofore supplemented, set forth and upon the following terms and conditions:

 

The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this ________________________ Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by FPL solely. In general, each and every term and condition contained in Article XVII of the Mortgage, as heretofore amended, shall apply to and form part of this ________________________ Supplemental Indenture with the same force and effect as if the same were herein set forth in full with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the provisions of this ________________________ Supplemental Indenture.

 

Section 6.      Whenever in this ________________________ Supplemental Indenture either of the parties hereto is named or referred to, this shall, subject to the provisions of Articles XVI and XVII of the Mortgage, as heretofore amended, be deemed to include the successors and assigns of such party, and all the covenants and agreements in this ________________________ Supplemental Indenture contained by or on behalf of FPL, or by or on behalf of the Trustee, or either of them, shall, subject as aforesaid, bind and inure to the respective benefits of the respective successors and assigns of such parties, whether so expressed or not.

 

Section 7.     Nothing in this ________________________ Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or to give to, any person, firm or corporation, other than the parties hereto and the holders of the bonds and coupons Outstanding under the Mortgage, any right, remedy or claim under or by reason of this ________________________ Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this ________________________ Supplemental Indenture contained by or on behalf of FPL shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds and coupons Outstanding under the Mortgage.

 

Section 8.      The Mortgage, as heretofore supplemented and amended and as supplemented hereby, is intended by the parties hereto, as to properties now or hereafter encumbered thereby and located within the States of Florida, Georgia, Mississippi and Alabama, to operate and is to be construed as granting a lien only on such properties and not as a deed passing title thereto.

 

Section 9.      This ________________________ Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

 

In Witness Whereof, FPL has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents, and its corporate seal to be attested by its Secretary or one of its Assistant Secretaries for and in its behalf, and Deutsche Bank Trust Company Americas has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by one or more of its Vice Presidents or Assistant Vice Presidents, and its corporate seal to be attested by one of its Vice Presidents, Assistant Vice Presidents, one of its Assistant Secretaries or one of its Associates, all as of the day and year first above written.

 

- 9 -

 

 

 

Florida Power & Light Company 

     
  By:  

 

Attest:

 

 

 

 

 

Executed, sealed and delivered by 

    Florida Power & Light Company 

    in the presence of:

 

 

 

 

 

 

  

 

 

 

 

Deutsche Bank Trust Company Americas

  As Trustee    
     
  By:         

 

  By:                
     
  [CORPORATE SEAL]

 

Attest:

 

 

 

 

Executed, sealed and delivered by 

   Deutsche Bank Trust Company Americas 

   in the presence of:

 

 

 

 

 

 

 

 

 

State of Florida
County of Palm Beach         		} SS:

 

On the ___ day of _________, in the year ____ before me by means of physical presence personally came ________ _______, to me known, who, being by me duly sworn, did depose and say that [he][she] is the __________________________ of Florida Power & Light Company, one of the corporations described in and which executed the above instrument; that [he][she] knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that [he][she] signed [his][her] name thereto by like order.

 

I Hereby Certify, that on this ___ day of _________, ____, before me by means of physical presence personally appeared ________________ and __________________, respectively, the ______________ and a[n] ___________________ of Florida Power & Light Company, a corporation under the laws of the State of Florida, to me known to be the persons described in and who executed the foregoing instrument and severally acknowledged the execution thereof to be their free act and deed as such officers, for the uses and purposes therein mentioned; and that they affixed thereto the official seal of said corporation, and that said instrument is the act and deed of said corporation.

 

Witness my signature and official seal at Juno Beach, in the County of Palm Beach, and State of Florida, the day and year last aforesaid.

 

   
  Notary Public – State of Florida

 

 

 

 

State of New York
County of New York         		} SS:

 

On the ___ day of _________ in the year ____, before me by means of physical presence personally came ________ and ________, to me known, who, being by me duly sworn, did depose and say that they are respectively a ______________ and a[n] ________________________ of Deutsche Bank Trust Company Americas, one of the corporations described in and which executed the above instrument; that they know the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that they signed their names thereto by like order.

 

I Hereby Certify, that on this ___ day of _________, ____, before me by means of physical presence personally appeared ________, ________ and _______________, respectively, a ______________, a[n] ________________________ and a[n] _________ of Deutsche Bank Trust Company Americas, a corporation under the laws of the State of New York, to me known to be the persons described in and who executed the foregoing instrument and severally acknowledged the execution thereof to be their free act and deed as such officers, for the uses and purposes therein mentioned; and that they affixed thereto the official seal of said corporation, and that said instrument is the act and deed of said corporation.

 

Witness my signature and official seal at New York, in the County of New York, and State of New York, the day and year last aforesaid.

 

   
  Notary Public – State of New York

 

 

 

 

Exhibit 4(l)

 

[(legend at the end of this

bond for restrictions on transferability 

and change of form)]

 

FORM OF REGISTERED BOND

 

FLORIDA POWER & LIGHT COMPANY
First Mortgage Bond,
_____ Series
due _________, ____

 

CUSIP No. __________

No. R-__ $____________

 

FLORIDA POWER & LIGHT COMPANY, a corporation of the State of Florida (hereinafter called the “Company”), for value received, hereby promises to pay to

 

or registered assigns, on _______________, at the office or agency of the Company in the Borough of Manhattan, The City of New York,

 

in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts, and to pay to the registered owner hereof interest thereon [semi-annually][quarterly] on _______[, ______, ______] and _________ in each year (each an “Interest Payment Date”) commencing on _____________ at the rate of _____% per annum in like coin or currency at such office or agency, until the principal of this bond shall have become due and payable, and to pay interest on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest payable in accordance with the terms of the Mortgage (as hereinafter defined). Interest on this bond shall accrue from and including __________________ to but excluding _____________ and, thereafter, from and including the last Interest Payment Date to which interest has been paid or duly provided for (and if no interest has been paid on this bond, from __________________) to but excluding the next succeeding Interest Payment Date. The amount of interest payable for any period will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period shorter than a full semi-annual period for which interest is computed will be computed on the basis of the number of days in the period using 30-day calendar months. The record date for payments of interest on any Interest Payment Date shall be the close of business on (1) the business day immediately preceding such Interest Payment Date so long as all bonds of this series are held by a securities depository in book-entry only form or (2) the 15th calendar day immediately preceding such Interest Payment Date if any of the bonds of this series are not held by a securities depository in book-entry only form.

 

 

 

 

This bond is one of an issue of bonds of the Company issuable in series and is one of a series known as its First Mortgage Bonds, _____% Series due _______________, all bonds of all series issued and to be issued under and equally secured (except insofar as any sinking or other fund, established in accordance with the provisions of the Mortgage hereinafter mentioned, may afford additional security for the bonds of any particular series) by a Mortgage and Deed of Trust (herein, together with any indenture supplemental thereto, including the ________________________ Supplemental Indenture dated as of _________________, called the “Mortgage”), dated as of January 1, 1944, executed by the Company to Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) (hereinafter sometimes called the “Corporate Trustee”) and The Florida National Bank of Jacksonville (now resigned), as Trustees. Reference is made to the Mortgage for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Corporate Trustee in respect thereof, the duties and immunities of the Corporate Trustee and the terms and conditions upon which the bonds are and are to be secured and the circumstances under which additional bonds may be issued. With the consent of the Company and to the extent permitted by and as provided in the Mortgage, the rights and obligations of the Company and/or the rights of the holders of the bonds and/or coupons and/or the terms and provisions of the Mortgage may be modified or altered by affirmative vote or votes of the holders of bonds then outstanding as specified in the Mortgage.

 

The principal hereof may be declared or may become due prior to the maturity date hereinbefore named on the conditions, in the manner and at the time set forth in the Mortgage, upon the occurrence of a default as in the Mortgage provided.

 

This bond is transferable as prescribed in the Mortgage by the registered owner hereof in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, upon surrender and cancellation of this bond, and, thereupon, a new fully registered bond of the same series and maturity for a like principal amount will be issued to the transferee in exchange herefor as provided in the Mortgage. The Company and the Corporate Trustee may deem and treat the person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment and for all other purposes and neither the Company nor the Corporate Trustee shall be affected by any notice to the contrary.

 

In the manner prescribed in the Mortgage, any bonds of this series, upon surrender thereof for exchange, at the office or agency of the Company in the Borough of Manhattan, The City of New York, together with a written instrument of transfer wherever required by the Company duly executed by the registered owner or by his duly authorized attorney, are exchangeable for a like aggregate principal amount of bonds of the same series and maturity of other authorized denominations.

 

[Redemption provisions, if any, will be inserted here]

 

As provided in the Mortgage, the Company shall not be required to make transfers or exchanges of bonds of any series for a period of ten days next preceding any interest payment date for bonds of said series, or next preceding any designation of bonds of said series to be redeemed, and the Company shall not be required to make transfers or exchanges of any bonds designated in whole or in part for redemption.

 

2

 

 

No recourse shall be had for the payment of the principal of or interest on this bond against any incorporator, or any past, present or future subscriber to the capital stock, or any stockholder, officer or director of the Company or of any predecessor or successor corporation, as such, either directly or through the Company or any predecessor or successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors being released by the holder or owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Mortgage.

 

Each initial and future holder of this bond, by its acquisition of an interest in this bond, irrevocably (a) consents to the amendments set forth in Article II of the One Hundred Twenty-Eighth Supplemental Indenture, dated as of June 15, 2018, without any other or further action by any holder of this bond, and (b) designates the Corporate Trustee, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on behalf of such holder in favor of such amendments at any bondholder meeting, in lieu of any bondholder meeting, in any consent solicitation or otherwise.

 

This bond shall not become obligatory until Deutsche Bank Trust Company Americas, the Corporate Trustee under the Mortgage, or its successor thereunder, shall have signed the form of authentication certificate endorsed hereon.

 

ON OR BEFORE THE DATE HEREOF, THE FLORIDA AND GEORGIA EXCISE TAXES, IF ANY, ON DOCUMENTS HAVE BEEN PAID AND THE PROPER DOCUMENTARY STAMPS ARE AFFIXED TO ORIGINAL RECORDED SUPPLEMENTAL INDENTURES UNDER WHICH THIS BOND IS ISSUED.

 

3

 

 

IN WITNESS WHEREOF, FLORIDA POWER & LIGHT COMPANY has caused this bond to be signed in its corporate name by its President or one of its Vice Presidents by such officer’s signature or a facsimile thereof, and its corporate seal to be impressed or imprinted hereon and attested by its Secretary or one of its Assistant Secretaries by such officer’s signature or a facsimile thereof, on _______________. 

 

  FLORIDA POWER & LIGHT COMPANY
     
  By:               
     
  ATTEST:
     
  By:    

 

FORM OF CORPORATE TRUSTEE’S AUTHENTICATION CERTIFICATE

 

This bond is one of the bonds, of the series herein designated, described or provided for in the within-mentioned Mortgage.

 

Dated: 

 

  DEUTSCHE BANK TRUST COMPANY AMERICAS,
  as Corporate Trustee
   
  By:    
    Authorized Signatory

 

4

 

 

[LEGEND

 

Unless and until this bond is exchanged in whole or in part for certificated bonds registered in the names of the various beneficial holders hereof as then certified to the Corporate Trustee by The Depository Trust Company or its successor (the “Depositary”), this bond may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

 

Unless this certificate is presented by an authorized representative of the Depositary to the Company or its agent for registration of transfer, exchange or payment, and any certificate to be issued is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of the Depositary and any amount payable thereunder is made payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.

 

This bond may be exchanged for certificated bonds registered in the names of the various beneficial owners hereof if (a) the Depositary is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by the Company within 90 days, or (b) subject to the procedures of the Depositary, the Company elects to issue certificated bonds to beneficial owners (as certified to the Company by the Depositary).]

 

 

 

 

Exhibit 4(m)

 

[(legend at the end of this

bond for restrictions on transferability 

and change of form)]

 

FORM OF TEMPORARY REGISTERED BOND

 

FLORIDA POWER & LIGHT COMPANY
First Mortgage Bond,
_____ Series
due _________, ____

 

CUSIP No. __________

No. R-__ $____________

 

FLORIDA POWER & LIGHT COMPANY, a corporation of the State of Florida (hereinafter called the “Company”), for value received, hereby promises to pay to

 

or registered assigns, on _______________, at the office or agency of the Company in the Borough of Manhattan, The City of New York,

 

in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts, and to pay to the registered owner hereof interest thereon [semi-annually][quarterly] on _______[, ______, ______] and _________ in each year (each an “Interest Payment Date”) commencing on _____________ at the rate of _____% per annum in like coin or currency at such office or agency, until the principal of this bond shall have become due and payable, and to pay interest on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest payable in accordance with the terms of the Mortgage (as hereinafter defined). Interest on this bond shall accrue from and including __________________ to but excluding _____________ and, thereafter, from and including the last Interest Payment Date to which interest has been paid or duly provided for (and if no interest has been paid on this bond, from __________________) to but excluding the next succeeding Interest Payment Date. The amount of interest payable for any period will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period shorter than a full semi-annual period for which interest is computed will be computed on the basis of the number of days in the period using 30-day calendar months. The record date for payments of interest on any Interest Payment Date shall be the close of business on (1) the business day immediately preceding such Interest Payment Date so long as all bonds of this series are held by a securities depository in book-entry only form or (2) the 15th calendar day immediately preceding such Interest Payment Date if any of the bonds of this series are not held by a securities depository in book-entry only form.

 

 

 

 

This bond is a temporary bond and is one of an issue of bonds of the Company issuable in series and is one of a series known as its First Mortgage Bonds, _____% Series due _______________, all bonds of all series issued and to be issued under and equally secured (except insofar as any sinking or other fund, established in accordance with the provisions of the Mortgage hereinafter mentioned, may afford additional security for the bonds of any particular series) by a Mortgage and Deed of Trust (herein, together with any indenture supplemental thereto, including the ________________________ Supplemental Indenture dated as of _________________, called the “Mortgage”), dated as of January 1, 1944, executed by the Company to Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) (hereinafter sometimes called the “Corporate Trustee”) and The Florida National Bank of Jacksonville (now resigned), as Trustees. Reference is made to the Mortgage for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Corporate Trustee in respect thereof, the duties and immunities of the Corporate Trustee and the terms and conditions upon which the bonds are and are to be secured and the circumstances under which additional bonds may be issued. With the consent of the Company and to the extent permitted by and as provided in the Mortgage, the rights and obligations of the Company and/or the rights of the holders of the bonds and/or coupons and/or the terms and provisions of the Mortgage may be modified or altered by affirmative vote or votes of the holders of bonds then outstanding as specified in the Mortgage.

 

The principal hereof may be declared or may become due prior to the maturity date hereinbefore named on the conditions, in the manner and at the time set forth in the Mortgage, upon the occurrence of a default as in the Mortgage provided.

 

This bond is transferable as prescribed in the Mortgage by the registered owner hereof in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, upon surrender and cancellation of this bond, and, thereupon, a new fully registered temporary or definitive bond of the same series and maturity for a like principal amount will be issued to the transferee in exchange herefor as provided in the Mortgage. The Company and the Corporate Trustee may deem and treat the person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment and for all other purposes and neither the Company nor the Corporate Trustee shall be affected by any notice to the contrary.

 

In the manner prescribed in the Mortgage, any bonds of this series, upon surrender thereof for exchange, at the office or agency of the Company in the Borough of Manhattan, The City of New York, together with a written instrument of transfer wherever required by the Company duly executed by the registered owner or by his duly authorized attorney, are exchangeable for a like aggregate principal amount of bonds of the same series and maturity of other authorized denominations.

 

In the manner prescribed in the Mortgage, this temporary bond is exchangeable at the office or agency of the Company in the Borough of Manhattan, The City of New York, without charge, for a definitive bond or bonds of the same series and maturity of a like aggregate principal amount when such definitive bonds are prepared and ready for delivery. 

 

[Redemption provisions, if any, will be inserted here]

 

2

 

 

As provided in the Mortgage, the Company shall not be required to make transfers or exchanges of bonds of any series for a period of ten days next preceding any interest payment date for bonds of said series, or next preceding any designation of bonds of said series to be redeemed, and the Company shall not be required to make transfers or exchanges of any bonds designated in whole or in part for redemption.

 

No recourse shall be had for the payment of the principal of or interest on this bond against any incorporator, or any past, present or future subscriber to the capital stock, or any stockholder, officer or director of the Company or of any predecessor or successor corporation, as such, either directly or through the Company or any predecessor or successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors being released by the holder or owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Mortgage.

 

Each initial and future holder of this bond, by its acquisition of an interest in this bond, irrevocably (a) consents to the amendments set forth in Article II of the One Hundred Twenty-Eighth Supplemental Indenture, dated as of June 15, 2018, without any other or further action by any holder of this bond, and (b) designates the Corporate Trustee, and its successors, as its proxy with irrevocable instructions to vote and deliver written consents on behalf of such holder in favor of such amendments at any bondholder meeting, in lieu of any bondholder meeting, in any consent solicitation or otherwise.

 

This bond shall not become obligatory until Deutsche Bank Trust Company Americas, the Corporate Trustee under the Mortgage, or its successor thereunder, shall have signed the form of authentication certificate endorsed hereon.

 

ON OR BEFORE THE DATE HEREOF, THE FLORIDA AND GEORGIA EXCISE TAXES, IF ANY, ON DOCUMENTS HAVE BEEN PAID AND THE PROPER DOCUMENTARY STAMPS ARE AFFIXED TO ORIGINAL RECORDED SUPPLEMENTAL INDENTURES UNDER WHICH THIS BOND IS ISSUED.

 

3

 

 

IN WITNESS WHEREOF, FLORIDA POWER & LIGHT COMPANY has caused this bond to be signed in its corporate name by its President or one of its Vice Presidents by such officer’s signature or a facsimile thereof, and its corporate seal to be impressed or imprinted hereon and attested by its Secretary or one of its Assistant Secretaries by such officer’s signature or a facsimile thereof, on _______________. 

 

  FLORIDA POWER & LIGHT COMPANY
     
  By:               
     
  ATTEST:
     
  By:    

 

FORM OF CORPORATE TRUSTEE’S AUTHENTICATION CERTIFICATE

 

This bond is one of the bonds, of the series herein designated, described or provided for in the within-mentioned Mortgage.

 

Dated: 

 

  DEUTSCHE BANK TRUST COMPANY AMERICAS,
  as Corporate Trustee
   
  By:    
    Authorized Signatory

 

4

 

 

[LEGEND

 

Unless and until this bond is exchanged in whole or in part for certificated bonds registered in the names of the various beneficial holders hereof as then certified to the Corporate Trustee by The Depository Trust Company or its successor (the “Depositary”), this bond may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

 

Unless this certificate is presented by an authorized representative of the Depositary to the Company or its agent for registration of transfer, exchange or payment, and any certificate to be issued is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of the Depositary and any amount payable thereunder is made payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.

 

This bond may be exchanged for certificated bonds registered in the names of the various beneficial owners hereof if (a) the Depositary is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by the Company within 90 days, or (b) subject to the procedures of the Depositary, the Company elects to issue certificated bonds to beneficial owners (as certified to the Company by the Depositary).]

 

5

 

 

Exhibit 4(ak)

 

NextEra Energy Capital Holdings, Inc.

 

OFFICER’S CERTIFICATE

 

Creating the 0.65% Debentures, Series due March 1, 2023

 

Paul I. Cutler, Vice President and Treasurer of NextEra Energy Capital Holdings, Inc. (the “Company”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, does hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Debt Securities) dated as of June 1, 1999 between the Company and the Trustee, as amended (the “Indenture”), that:

 

1.     The securities to be issued under the Indenture in accordance with this certificate shall be designated “0.65% Debentures, Series due March 1, 2023” (referred to herein as the “Debentures of the Fifty-Fourth Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2.     The Debentures of the Fifty-Fourth Series shall be issued by the Company in the initial aggregate principal amount of $2,000,000,000. Additional Debentures of the Fifty-Fourth Series, without limitation as to amount, having the same terms as the Outstanding Debentures of the Fifty-Fourth Series (except for the issue date of the additional Debentures of the Fifty-Fourth Series and, if applicable, the initial Interest Payment Date (as defined below)) may also be issued by the Company pursuant to the Indenture without the consent of the Holders of the then-Outstanding Debentures of the Fifty-Fourth Series. Any such additional Debentures of the Fifty-Fourth Series as may be issued pursuant to the Indenture from time to time shall be part of the same series as the then-Outstanding Debentures of the Fifty-Fourth Series.

 

3.     The Debentures of the Fifty-Fourth Series shall mature and the principal shall be due and payable, together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means March 1, 2023.

 

4.     The Debentures of the Fifty-Fourth Series shall bear interest as provided in the form set forth as Exhibit A hereto.

 

5.     Each installment of interest on a Debenture of the Fifty-Fourth Series shall be payable as provided in the form set forth as Exhibit A hereto.

 

6.     Registration of the Debentures of the Fifty-Fourth Series, and registration of transfers and exchanges in respect of the Debentures of the Fifty-Fourth Series, may be effectuated at the office or agency of the Company in New York City, New York. Notices and demands to or upon the Company in respect of the Debentures of the Fifty-Fourth Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the Debentures of the Fifty-Fourth Series.

 

 

 

 

7.     The Debentures of the Fifty-Fourth Series will not be redeemable at the option of the Company prior to the Stated Maturity Date.

 

8.     So long as all of the Debentures of the Fifty-Fourth Series are held by a securities depository in book-entry form, the Regular Record Date for the interest payable on any given Interest Payment Date with respect to the Debentures of the Fifty-Fourth Series shall be the close of business on the Business Day immediately preceding such Interest Payment Date; provided, however, that if any of the Debentures of the Fifty-Fourth Series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date.

 

9.     If the Company shall make any deposit of money and/or Eligible Obligations with respect to any Debentures of the Fifty-Fourth Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A) an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the Debentures of the Fifty-Fourth Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Debentures of the Fifty-Fourth Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof; or

 

(B) an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such Debentures of the Fifty-Fourth Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

-2-

 

 

10. The Debentures of the Fifty-Fourth Series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, Inc., as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). The following shall constitute “Guarantor Events” with respect to the Debentures of the Fifty-Fourth Series:

 

(A) the failure of the Guarantee Agreement to be in full force and effect;

 

(B) the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

-3-

 

 

Notwithstanding anything to the contrary contained in the Debentures of the Fifty-Fourth Series, this certificate or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Debentures of the Fifty-Fourth Series within sixty (60) days after the occurrence of such Guarantor Event at a redemption price equal to the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of redemption unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Debentures of the Fifty-Fourth Series are then rated by those rating agencies, or, if the Debentures of the Fifty-Fourth Series are then rated by only one of those rating agencies, then such rating agency, or, if the Debentures of the Fifty-Fourth Series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Debentures of the Fifty-Fourth Series shall be investment grade (i.e., in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

11.  With respect to the Debentures of the Fifty-Fourth Series, each of the following events shall be an additional Event of Default under the Indenture:

 

(A) the consolidation of the Guarantor with or merger of the Guarantor into any other Person, or the conveyance or other transfer or lease by the Guarantor of its properties and assets substantially as an entirety to any Person, unless

 

(i)      the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or other transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall be a Person organized and existing under the laws of the United States, any State thereof or the District of Columbia, and shall expressly assume the obligations of the Guarantor under the Guarantee Agreement; and

 

(ii)     immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; or

 

(B) the failure of the Company to redeem the Outstanding Debentures of the Fifty-Fourth Series if and as required by paragraph 10 hereof.

 

12. If a Guarantor Event occurs and the Company is not required to redeem the Debentures of the Fifty-Fourth Series pursuant to paragraph 10 hereof, the Company will provide to the Trustee and the Holders of the Debentures of the Fifty-Fourth Series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement. The provision of such reports and information to the Trustee shall be for informational purposes only and the Trustee’s receipt or deemed receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture.

 

-4-

 

 

13. The Debentures of the Fifty-Fourth Series will be initially issued in global form registered in the name of Cede & Co. (as nominee for The Depository Trust Company). The Debentures of the Fifty-Fourth Series in global form shall bear the depository legend in substantially the form set forth as Exhibit A hereto. The Debentures of the Fifty-Fourth Series in global form will contain restrictions on transfer, substantially as described in the form set forth as Exhibit A hereto.

 

14. No service charge shall be made for the registration of transfer or exchange of the Debentures of the Fifty-Fourth Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

15. The Debentures of the Fifty-Fourth Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

16. The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the Debentures of the Fifty-Fourth Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

17. The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

18. In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

19. In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the Debentures of the Fifty-Fourth Series requested in the accompanying Company Order No. 51 have been complied with.

 

-5-

 

 

IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this 17th day of March, 2021 in Park City, Utah.

  

  /s/ Paul I. Cutler
  Paul I. Cutler
  Vice President and Treasurer

 

 

 

 

Exhibit A

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to NextEra Energy Capital Holdings, Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No. _______________ CUSIP No. __________

 

[FORM OF FACE OF DEBENTURE]

 

NextEra Energy Capital Holdings, Inc.

 

0.65% DEBENTURES, SERIES DUE MARCH 1, 2023

 

NextEra Energy Capital Holdings, Inc., a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company,” which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to

 

, or registered assigns, the principal sum of ____________________ Dollars on March 1, 2023 (the “Stated Maturity Date”). The Company further promises to pay interest on the principal sum of this 0.65% Debenture, Series due March 1, 2023 (this “Security”) to the registered Holder hereof at the rate of 0.65% per annum, in like coin or currency, semi-annually on March 1 and September 1 of each year (each an “Interest Payment Date”) until the principal hereof is paid or duly provided for, such interest payments to commence on September 1, 2021. Each interest payment shall include interest accrued from the most-recently preceding Interest Payment Date to which interest has either been paid or duly provided for (except that (i) the interest payment which is due on September 1, 2021 shall include interest that has accrued from March 17, 2021, and (ii) if this Security is authenticated during the period that (A) follows any particular Regular Record Date (as defined below) but (B) precedes the next occurring Interest Payment Date, then the registered Holder hereof shall not be entitled to receive any interest payment with respect to this Security on such next occurring Interest Payment Date). No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay) with the same force and effect as if made on the Interest Payment Date. The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the “Regular Record Date” for such interest installment which shall be the close of business on the Business Day immediately preceding such Interest Payment Date so long as all of the Securities of this series are held by a securities depository in book-entry form; provided that if any of the Securities of this series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date; and provided further that interest payable on the Stated Maturity Date or a Redemption Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

A - 1

 

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto. The amount of interest payable on this Security will be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full semi-annual period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate, shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A - 2

 

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in ___________________.

 

  NextEra Energy Capital Holdings, Inc.
     
  By:               

 

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  The Bank of New York MEllon, as Trustee
     
  By:  
    Authorized Signatory

 

A - 3

 

 

[FORM OF REVERSE OF DEBENTURE]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Debt Securities), dated as of June 1, 1999 (herein, together with any amendments thereto, called the “Indenture,” which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on March 17, 2021 creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

Securities of this series shall not be redeemable at the option of the Company prior to the Stated Maturity Date.

 

The Securities of this series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, Inc., as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). The following shall constitute “Guarantor Events” with respect to the Securities of this series:

 

(A) the failure of the Guarantee Agreement to be in full force and effect;

 

(B) the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

A - 4

 

 

(C) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

Notwithstanding anything to the contrary contained in the Securities of this series, the Officer’s Certificate, or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Securities of this series within sixty (60) days after the occurrence of such Guarantor Event at a redemption price equal to the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of redemption unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Securities of this series are then rated by those rating agencies, or, if the Securities of this series are then rated by only one of those rating agencies, then such rating agency, or, if the Securities of this series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Securities of this series shall be investment grade (i.e., in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

If a Guarantor Event occurs and the Company is not required to redeem the Securities of this series pursuant to the preceding paragraph, the Company will provide to the Trustee and the Holders of the Securities of this series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement.

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

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The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

The Securities of this series are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

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Exhibit 4(al)

 

NextEra Energy Capital Holdings, Inc.

 

OFFICER’S CERTIFICATE

 

Creating the Floating Rate Debentures, Series due March 1, 2023

 

Paul I. Cutler, Vice President and Treasurer of NextEra Energy Capital Holdings, Inc. (the “Company”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, does hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Debt Securities) dated as of June 1, 1999 between the Company and the Trustee, as amended (the “Indenture”), that:

 

1.      The securities to be issued under the Indenture in accordance with this certificate shall be designated “Floating Rate Debentures, Series due March 1, 2023” (referred to herein as the “Debentures of the Fifty-Fifth Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2.      The Debentures of the Fifty-Fifth Series shall be issued by the Company in the initial aggregate principal amount of $500,000,000. Additional Debentures of the Fifty-Fifth Series, without limitation as to amount, having the same terms as the Outstanding Debentures of the Fifty-Fifth Series (except for the issue date of the additional Debentures of the Fifty-Fifth Series and, if applicable, the initial Interest Payment Date (as defined below)) may also be issued by the Company pursuant to the Indenture without the consent of the Holders of the then-Outstanding Debentures of the Fifty-Fifth Series. Any such additional Debentures of the Fifty-Fifth Series as may be issued pursuant to the Indenture from time to time shall be part of the same series as the then-Outstanding Debentures of the Fifty-Fifth Series.

 

3.      The Debentures of the Fifty-Fifth Series shall mature and the principal shall be due and payable, together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means March 1, 2023.

 

4.      The Debentures of the Fifty-Fifth Series shall bear interest as provided in the form set forth as Exhibit A hereto.

 

5.      Each installment of interest on a Debenture of the Fifty-Fifth Series shall be payable as provided in the form set forth as Exhibit A hereto.

 

6.      Registration of the Debentures of the Fifty-Fifth Series, and registration of transfers and exchanges in respect of the Debentures of the Fifty-Fifth Series, may be effectuated at the office or agency of the Company in New York City, New York. Notices and demands to or upon the Company in respect of the Debentures of the Fifty-Fifth Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the Debentures of the Fifty-Fifth Series.

 

 

 

 

7.      The Debentures of the Fifty-Fifth Series will not be redeemable at the option of the Company prior to the Stated Maturity Date.

 

8.      So long as all of the Debentures of the Fifty-Fifth Series are held by a securities depository in book-entry form, the Regular Record Date for the interest payable on any given Interest Payment Date with respect to the Debentures of the Fifty-Fifth Series shall be the close of business on the Business Day immediately preceding such Interest Payment Date; provided, however, that if any of the Debentures of the Fifty-Fifth Series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date.

 

9.      If the Company shall make any deposit of money and/or Eligible Obligations with respect to any Debentures of the Fifty-Fifth Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A) an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the Debentures of the Fifty-Fifth Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Debentures of the Fifty-Fifth Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof; or

 

(B) an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such Debentures of the Fifty-Fifth Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

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10. The Debentures of the Fifty-Fifth Series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, Inc., as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). The following shall constitute “Guarantor Events” with respect to the Debentures of the Fifty-Fifth Series:

 

(A) the failure of the Guarantee Agreement to be in full force and effect;

 

(B) the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

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Notwithstanding anything to the contrary contained in the Debentures of the Fifty-Fifth Series, this certificate or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Debentures of the Fifty-Fifth Series within sixty (60) days after the occurrence of such Guarantor Event at a redemption price equal to the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of redemption unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Debentures of the Fifty-Fifth Series are then rated by those rating agencies, or, if the Debentures of the Fifty-Fifth Series are then rated by only one of those rating agencies, then such rating agency, or, if the Debentures of the Fifty-Fifth Series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Debentures of the Fifty-Fifth Series shall be investment grade (i.e., in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

11. With respect to the Debentures of the Fifty-Fifth Series, each of the following events shall be an additional Event of Default under the Indenture:

 

(A) the consolidation of the Guarantor with or merger of the Guarantor into any other Person, or the conveyance or other transfer or lease by the Guarantor of its properties and assets substantially as an entirety to any Person, unless

 

(i)     the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or other transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall be a Person organized and existing under the laws of the United States, any State thereof or the District of Columbia, and shall expressly assume the obligations of the Guarantor under the Guarantee Agreement; and

 

(ii)    immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; or

 

(B) the failure of the Company to redeem the Outstanding Debentures of the Fifty-Fifth Series if and as required by paragraph 10 hereof.

 

12. If a Guarantor Event occurs and the Company is not required to redeem the Debentures of the Fifty-Fifth Series pursuant to paragraph 10 hereof, the Company will provide to the Trustee and the Holders of the Debentures of the Fifty-Fifth Series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement. The provision of such reports and information to the Trustee shall be for informational purposes only and the Trustee’s receipt or deemed receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture.

 

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13. The Debentures of the Fifty-Fifth Series will be initially issued in global form registered in the name of Cede & Co. (as nominee for The Depository Trust Company). The Debentures of the Fifty-Fifth Series in global form shall bear the depository legend in substantially the form set forth as Exhibit A hereto. The Debentures of the Fifty-Fifth Series in global form will contain restrictions on transfer, substantially as described in the form set forth as Exhibit A hereto.

 

14. No service charge shall be made for the registration of transfer or exchange of the Debentures of the Fifty-Fifth Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

15. The Debentures of the Fifty-Fifth Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

16. The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the Debentures of the Fifty-Fifth Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

17. The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

18. In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

19. In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the Debentures of the Fifty-Fifth Series requested in the accompanying Company Order No. 51 have been complied with.

 

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IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this 17th day of March, 2021 in Park City, Utah.

 

  /s/ Paul I. Cutler
  Paul I. Cutler
  Vice President and Treasurer

 

 

 

 

Exhibit A

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to NextEra Energy Capital Holdings, Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No. _______________ CUSIP No. __________

 

[FORM OF FACE OF DEBENTURE]

 

NextEra Energy Capital Holdings, Inc.

 

FLOATING RATE DEBENTURES, SERIES DUE MARCH 1, 2023

 

NextEra Energy Capital Holdings, Inc., a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company”, which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to

 

, or registered assigns, the principal sum of ____________________ Dollars on March 1, 2023 (the “Stated Maturity Date”). The Company further promises to pay interest on the principal sum of this Floating Rate Debenture, Series due March 1, 2023 (this “Security”) to the registered Holder hereof at the Interest Rate (as defined on the reverse of this Security), in like coin or currency, quarterly on March 1, June 1, September 1 and December 1 of each year (each an “Interest Payment Date”) until the principal hereof is paid or duly provided for, such interest payments to commence on June 1, 2021. Interest on the Securities of this series will accrue from and including March 17, 2021 to but excluding the first Interest Payment Date and thereafter will accrue from and including the last Interest Payment Date to which interest has either been paid or duly provided for to but excluding the next Interest Payment Date, and, in the case of the last such period, from and including the Interest Payment Date immediately preceding the Stated Maturity Date to but excluding the Stated Maturity Date (each an “Interest Period”). No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. The amount of interest payable for any Interest Period will be computed on the basis of a 360-day year and the actual number of days in the Observation Period (as defined on the reverse of this Security). The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the “Regular Record Date” for such interest installment which shall be the close of business on the Business Day immediately preceding such Interest Payment Date so long as all of the Securities of this series are held by a securities depository in book-entry form; provided that if any of the Securities of this series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date; and provided further that interest payable on the Stated Maturity Date or a Redemption Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

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Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto.

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate, shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in ___________________.

 

  NextEra Energy Capital Holdings, Inc.
     
  By:               

 

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  The Bank of New York MEllon, as Trustee
     
  By:  
    Authorized Signatory

 

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[FORM OF REVERSE OF DEBENTURE]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Debt Securities), dated as of June 1, 1999 (herein, together with any amendments thereto, called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on March 17, 2021 creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

Interest and Payment. The Securities of this series shall bear interest at a floating rate per annum (the “Interest Rate”) equal to Compounded SOFR (as defined below), plus 0.54 % (0.54%, the “Margin”).

 

If any Interest Payment Date falls on a day that is not a Business Day, the Company will make the interest payment on the next succeeding Business Day unless that Business Day is in the next succeeding calendar month, in which case (other than in the case of the Stated Maturity Date or the Redemption Date) the Company will make the interest payment on the immediately preceding Business Day. If an interest payment is made on the next succeeding Business Day, no interest will accrue as a result of the delay in payment. If the Stated Maturity Date or a Redemption Date of the Securities of this Series falls on a day that is not a Business Day, the payment due on such date will be postponed to the next succeeding Business Day, and no further interest will accrue in respect of such postponement.

 

On each Interest Payment Determination Date (as defined below) relating to the applicable Interest Payment Date, the Calculation Agent (as defined below) will calculate the amount of accrued interest payable on the Securities of this series by multiplying (i) the outstanding principal amount of the Securities of this series by (ii) the product of (a) the Interest Rate for the relevant Interest Period multiplied by (b) the quotient of the actual number of calendar days in such Observation Period divided by 360. In no event will the interest on the Securities of this series be less than zero.

 

“Calculation Agent” means a banking institution or trust company appointed by the Company to act as calculation agent, initially The Bank of New York Mellon.

 

Determination of Compounded SOFR. “Compounded SOFR” will be determined by the Calculation Agent in accordance with the following formula (and the resulting percentage will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point):

 

( ​ SOFR IndexEnd ​ – ​ 1 ​ )​ ​ x ​ 360 ​
​ SOFR IndexStart ​ ​ dc ​

 

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where:

 

“SOFR IndexStart” = For periods other than the initial Interest Period, the SOFR Index value on the preceding Interest Payment Determination Date, and, for the initial Interest Period, the SOFR Index value on March 15, 2021;

 

“SOFR IndexEnd” = The SOFR Index value on the Interest Payment Determination Date relating to the applicable Interest Payment Date (or, in the final Interest Period, relating to the Stated Maturity Date); and

 

“dc” is the number of calendar days in the relevant Observation Period.

 

For purposes of determining Compounded SOFR,

 

“Interest Payment Determination Date” means the date that is two U.S. Government Securities Business Days before each Interest Payment Date.

 

“Observation Period” means (i), in respect of each Interest Period, the period from, and including, the date that is two U.S. Government Securities Business Days preceding the first date in such Interest Period to, but excluding, the date that is two U.S. Government Securities Business Days preceding the Interest Payment Date for such Interest Period (or in the final Interest Period, preceding the Stated Maturity Date), and (ii), in respect of the payment of any interest in connection with a redemption of the Securities of this series, the period from, and including, the date that is two U.S. Government Securities Business Days preceding the first date in the Interest Period in which such redemption occurs to, but excluding, the date that is two U.S. Government Securities Business Days before such redemption.

 

“SOFR Index” means, with respect to any U.S. Government Securities Business Day:

 

(1) the SOFR Index value as published by the SOFR Administrator as such index appears on the SOFR Administrator’s Website at 3:00 p.m. (New York time) on such U.S. Government Securities Business Day (the “SOFR Index Determination Time”); provided that:

 

(2) if a SOFR Index value does not so appear as specified in (1) above at the SOFR Index Determination Time, then: (i) if a Benchmark Transition Event and its related Benchmark Replacement Date (each, as defined below) have not occurred with respect to SOFR, then Compounded SOFR shall be the rate determined pursuant to the “SOFR Index Unavailable Provisions” described below; or (ii) if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to SOFR, then Compounded SOFR shall be the rate determined pursuant to the “Effect of Benchmark Transition Event” provisions described below.

 

“SOFR” means the daily secured overnight financing rate as provided by the SOFR Administrator on the SOFR Administrator’s Website.

 

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of SOFR).

 

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“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source.

 

“U.S. Government Securities Business Day” means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.

 

Notwithstanding anything to the contrary set forth above under “Determination of Compounded SOFR,” if the Company or its designee (which may be an independent financial advisor or any other designee of the Company (any of such entities, a “Designee”)) determines on or prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to determining Compounded SOFR, then the benchmark replacement provisions set forth below under “Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable on the Securities of this series.

 

For the avoidance of doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the Interest Rate for each Interest Period on the Securities of this series will be an annual rate equal to the sum of the Benchmark Replacement and the applicable margin.

 

SOFR Index Unavailable Provisions. If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable Interest Period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at https://www.newyorkfed.org/markets/treasury-repo-reference-rates-information. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180- calendar days” shall be removed. If SOFR does not so appear for any day, “i” in the Observation Period, SOFRi for such day “i” shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s Website.

 

Absent willful misconduct, bad faith or manifest error, the calculation of the applicable Interest Rate for each Interest Period by the Calculation Agent, or in certain circumstances described below, by the Company or its Designee will be final and binding on the Company, the Trustee, and the Holders of the Securities of this series

 

None of the Trustee, Paying Agent, Security Registrar or Calculation Agent shall be under any obligation (i) to monitor, determine or verify the unavailability or cessation of SOFR or the SOFR Index, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment (as defined below), or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes (as defined below) are necessary or advisable, if any, in connection with any of the foregoing.

 

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None of the Trustee, Paying Agent, Security Registrar or Calculation Agent shall be liable for any inability, failure or delay on its part to perform any of its duties described in the Securities of this series, the Officer’s Certificate or the Indenture as a result of the unavailability of SOFR, the SOFR Index or other applicable Benchmark Replacement, including as a result of any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information contemplated by the Securities of this series, the Officer’s Certificate or the Indenture and reasonably required for the performance of such duties.

 

Effect of Benchmark Transition Event.

 

Benchmark Replacement. If the Company (or its Designee) determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Securities of this series in respect of such determination on such date and all determinations on all subsequent dates.

 

Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Company (or its Designee) will have the right to make Benchmark Replacement Conforming Changes from time to time.

 

Decisions and Determinations. Any determination, decision or election that may be made by the Company (or its Designee) pursuant to this subsection “Effect of Benchmark Transition Event,” including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error, will be made in the Company’s (or its Designee’s) sole discretion, and, notwithstanding anything to the contrary in the Securities of this series, the Officer’s Certificate or the Indenture, shall become effective without consent from the holders of the Securities of this series or any other party.

 

Certain Defined Terms. As used in this subsection “Effect of Benchmark Transition Event”:

 

“Benchmark” means, initially, Compounded SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Compounded SOFR (or the published SOFR Index used in the calculation thereof) or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.

 

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“Benchmark Replacement” means the Interpolated Benchmark with respect to the then-current Benchmark, plus the Benchmark Replacement Adjustment for such Benchmark; provided that if the Company (or its Designee) cannot determine the Interpolated Benchmark as of the Benchmark Replacement Date, then “Benchmark Replacement” means the first alternative set forth in the order below that can be determined by the Company (or its Designee) as of the Benchmark Replacement Date:

 

(1) the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment;

 

(2) the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; and

 

(3) the sum of: (a) the alternate rate of interest that has been selected by the Company (or its Designee) as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment.

 

“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Company (or its Designee) as of the Benchmark Replacement Date:

 

(1) the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;

 

(2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; and

 

(3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Company (or its Designee) giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated floating rate notes at such time.

 

The Benchmark Replacement Adjustment shall not include the Margin specified herein and such Margin shall be applied to the Benchmark Replacement to determine the interest payable on the Securities of this series.

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions or interpretations of “Interest Period”, timing and frequency of determining rates and making payments of interest, rounding of amounts or tenors, and other administrative matters) that the Company (or its Designee) decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company (or its Designee) decides that adoption of any portion of such market practice is not administratively feasible or if the Company (or its Designee) determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Company (or its Designee) determines is reasonably necessary or practicable).

 

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“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

 

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or

 

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.

 

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(1) a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;

 

(2) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or

 

(3) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.

 

“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.

 

“Interpolated Benchmark” with respect to the Benchmark means the rate determined for the Corresponding Tenor by interpolating on a linear basis between: (1) the Benchmark for the longest period (for which the Benchmark is available) that is shorter than the Corresponding Tenor and (2) the Benchmark for the shortest period (for which the Benchmark is available) that is longer than the Corresponding Tenor.

 

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“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.

 

“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.

 

“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.

 

“Reference Time” with respect to any determination of the Benchmark means (1) if the Benchmark is Compounded SOFR, the SOFR Index Determination Time, as such time is defined above, and (2) if the Benchmark is not Compounded SOFR, the time determined by NEE Capital (or its Designee) in accordance with the Benchmark Replacement Conforming Changes.

 

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

 

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

Redemption. The Securities of this series shall not be redeemable at the option of the Company prior to the Stated Maturity Date.

 

The Securities of this series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, Inc., as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). The following shall constitute “Guarantor Events” with respect to the Securities of this series:

 

(A) the failure of the Guarantee Agreement to be in full force and effect;

 

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(B) the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

Notwithstanding anything to the contrary contained in the Securities of this series, the Officer’s Certificate, or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Securities of this series within sixty (60) days after the occurrence of such Guarantor Event at a redemption price equal to the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of redemption unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Securities of this series are then rated by those rating agencies, or, if the Securities of this series are then rated by only one of those rating agencies, then such rating agency, or, if the Securities of this series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Securities of this series shall be investment grade (i.e., in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

If a Guarantor Event occurs and the Company is not required to redeem the Securities of this series pursuant to the preceding paragraph, the Company will provide to the Trustee and the Holders of the Securities of this series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement.

 

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The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

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The Securities of this series are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

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Exhibit 4(am)

 

NextEra Energy Capital Holdings, Inc.

 

OFFICER’S CERTIFICATE

 

Creating the ____% Debentures, Series due __________

 

__________, __________ of NextEra Energy Capital Holdings, Inc. (the “Company”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, does hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Debt Securities) dated as of June 1, 1999 between the Company and the Trustee, as amended (the “Indenture”), that:

 

1.       The securities to be issued under the Indenture in accordance with this certificate shall be designated “____% Debentures, Series due __________” (referred to herein as the “Debentures of the __________ Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2.       The Debentures of the __________ Series shall be issued by the Company in the initial aggregate principal amount of $__________. Additional Debentures of the __________ Series, without limitation as to amount, having the same terms as the Outstanding Debentures of the __________ Series (except for the issue date of the additional Debentures of the __________ Series and, if applicable, the initial Interest Payment Date (as defined below)) may also be issued by the Company pursuant to the Indenture without the consent of the Holders of the then-Outstanding Debentures of the __________ Series. Any such additional Debentures of the __________ Series as may be issued pursuant to the Indenture from time to time shall be part of the same series as the then-Outstanding Debentures of the __________ Series.

 

3.       The Debentures of the __________ Series shall mature and the principal shall be due and payable, together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means __________.

 

4.       The Debentures of the __________ Series shall bear interest as provided in the form set forth as Exhibit A hereto.

 

5.       Each installment of interest on a Debenture of the __________ Series shall be payable as provided in the form set forth as Exhibit A hereto.

 

6.       Registration of the Debentures of the __________ Series, and registration of transfers and exchanges in respect of the Debentures of the __________ Series, may be effectuated at the office or agency of the Company in New York City, New York. Notices and demands to or upon the Company in respect of the Debentures of the __________ Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the Debentures of the __________ Series.

 

7.       [The Debentures of the __________ Series will be redeemable at the option of the Company prior to the Stated Maturity Date as provided in the form set forth as Exhibit A hereto.][The Debentures of the __________ Series will not be redeemable at the option of the Company prior to the Stated Maturity Date.]

 

 

 

 

8.       So long as all of the Debentures of the __________ Series are held by a securities depository in book-entry form, the Regular Record Date for the interest payable on any given Interest Payment Date with respect to the Debentures of the __________ Series shall be the close of business on the Business Day immediately preceding such Interest Payment Date; provided, however, that if any of the Debentures of the __________ Series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date.

 

9.       If the Company shall make any deposit of money and/or Eligible Obligations with respect to any Debentures of the __________ Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A) an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the Debentures of the __________ Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Debentures of the __________ Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof; or

 

(B) an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such Debentures of the __________ Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

10.  The Debentures of the __________ Series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, Inc., as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). [The following shall constitute “Guarantor Events” with respect to the Debentures of the __________ Series:

 

(A) the failure of the Guarantee Agreement to be in full force and effect;

 

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(B) the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

Notwithstanding anything to the contrary contained in the Debentures of the __________ Series, this certificate or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Debentures of the _________ Series within sixty (60) days after the occurrence of such Guarantor Event at a redemption price equal to the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of redemption unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Debentures of the _________ Series are then rated by those rating agencies, or, if the Debentures of the __________ Series are then rated by only one of those rating agencies, then such rating agency, or, if the Debentures of the _________ Series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Debentures of the _________ Series shall be investment grade (i.e., in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).]

 

11. [With respect to the Debentures of the __________ Series, each of the following events shall be an additional Event of Default under the Indenture:

 

(A) the consolidation of the Guarantor with or merger of the Guarantor into any other Person, or the conveyance or other transfer or lease by the Guarantor of its properties and assets substantially as an entirety to any Person, unless

 

(i)       the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or other transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall be a Person organized and existing under the laws of the United States, any State thereof or the District of Columbia, and shall expressly assume the obligations of the Guarantor under the Guarantee Agreement; and

 

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(ii)      immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; or

 

(B) the failure of the Company to redeem the Outstanding Debentures of the _________ Series if and as required by paragraph 10 hereof.]

 

12.         [If a Guarantor Event occurs and the Company is not required to redeem the Debentures of the _________ Series pursuant to paragraph 10 hereof, the Company will provide to the Trustee and the Holders of the Debentures of the __________ Series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement. The provision of such reports and information to the Trustee shall be for informational purposes only and the Trustee’s receipt or deemed receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture.]

 

13. The Debentures of the _________ Series will be initially issued in global form registered in the name of Cede & Co. (as nominee for The Depository Trust Company). The Debentures of the _________ Series in global form shall bear the depository legend in substantially the form set forth as Exhibit A hereto. The Debentures of the _________ Series in global form will contain restrictions on transfer, substantially as described in the form set forth as Exhibit A hereto.

 

14. No service charge shall be made for the registration of transfer or exchange of the Debentures of the _________ Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

15. The Debentures of the _________ Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

16. The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the Debentures of the __________ Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

17. The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

18. In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

-4-

 

 

19. In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the Debentures of the __________ Series requested in the accompanying Company Order No. __ have been complied with.

 

-5-

 

 

IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this ____ day of __________ in _________________________.

 

   

 

 

 

 

Exhibit A

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to NextEra Energy Capital Holdings, Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No. _______________ CUSIP No. __________

 

[FORM OF FACE OF DEBENTURE]

 

NextEra Energy Capital Holdings, Inc.

 

____% DEBENTURES, SERIES DUE __________

 

NextEra Energy Capital Holdings, Inc., a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company,” which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to __________, or registered assigns, the principal sum of ____________________ Dollars on ____________ (the “Stated Maturity Date”). The Company further promises to pay interest on the principal sum of this ____% Debenture, Series due _________ (this “Security”) to the registered Holder hereof at the rate of ____% per annum, in like coin or currency, [semi-annually] [quarterly] on __________[,__________, __________] and __________ of each year (each an “Interest Payment Date”) until the principal hereof is paid or duly provided for, such interest payments to commence on _________. Each interest payment shall include interest accrued from the most-recently preceding Interest Payment Date to which interest has either been paid or duly provided for (except that (i) the interest payment which is due on _________ shall include interest that has accrued from _________, and (ii) if this Security is authenticated during the period that (A) follows any particular Regular Record Date (as defined below) but (B) precedes the next occurring Interest Payment Date, then the registered Holder hereof shall not be entitled to receive any interest payment with respect to this Security on such next occurring Interest Payment Date). No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay) with the same force and effect as if made on the Interest Payment Date. The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the “Regular Record Date” for such interest installment which shall be the close of business on the Business Day immediately preceding such Interest Payment Date so long as all of the Securities of this series are held by a securities depository in book-entry form; provided that if any of the Securities of this series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date; and provided further that interest payable on the Stated Maturity Date or a Redemption Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

A - 1

 

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto. The amount of interest payable on this Security will be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full [semi-annual][quarterly] period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate, shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A - 2

 

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in ____________________.

 

  NextEra Energy Capital Holdings, Inc.
     
  By:               

 

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  The Bank of New York MEllon, as Trustee
     
  By:  
    Authorized Signatory

 

A - 3

 

 

[FORM OF REVERSE OF DEBENTURE]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Debt Securities), dated as of June 1, 1999 (herein, together with any amendments thereto, called the “Indenture,” which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on __________ creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

[Provisions for redemption at the option of the Company, if any, will be inserted here.]

 

The Securities of this series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, Inc., as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). [The following shall constitute “Guarantor Events” with respect to the Securities of this series:

 

(A) the failure of the Guarantee Agreement to be in full force and effect;

 

(B) the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C) the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

A - 4

 

 

Notwithstanding anything to the contrary contained in the Securities of this series, the Officer’s Certificate or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Securities of this series within sixty (60) days after the occurrence of such Guarantor Event at a redemption price equal to the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of redemption unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global, Inc., and Moody’s Investors Service, Inc. (if the Securities of this series are then rated by those rating agencies, or, if the Securities of this series are then rated by only one of those rating agencies, then such rating agency, or, if the Securities of this series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Securities of this series shall be investment grade (i.e., in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

If a Guarantor Event occurs and the Company is not required to redeem the Securities of this series pursuant to the preceding paragraph, the Company will provide to the Trustee and the Holders of the Securities of this series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement.]

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

A - 5

 

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

The Securities of this series are issuable only in registered form without coupons in denominations of [$____ and integral multiples of $____ in excess thereof][$____ and integral multiples thereof]. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

A - 6

 

 

Exhibit 4(an)

 

NEXTERA ENERGY CAPITAL HOLDINGS, INC.

 

OFFICER’S CERTIFICATE

 

Creating the Series __ Debentures due _________________

 

_____________, ___________________ of NextEra Energy Capital Holdings, Inc. (the “Company”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein, in Appendix A or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, does hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Debt Securities) dated as of June 1, 1999 between the Company and the Trustee, as amended (the “Indenture”), that:

 

1.      The securities to be issued under the Indenture in accordance with this certificate shall be designated “Series __ Debentures due _________________” (referred to herein as the “Debentures of the ____________ Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2.      The Debentures of the ____________ Series shall mature and the principal shall be due and payable, together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means _________________.

 

3.      The Debentures of the ____________ Series shall bear interest initially at the rate of ____% per annum (the “Interest Rate”) from, and including, __________________, to, but excluding, the earlier of (i) the Stated Maturity Date and (ii) the Reset Effective Date. In the event of a Successful Remarketing of the Debentures of the ____________ Series, the Interest Rate will be determined by the Remarketing Agents and reset at the Reset Rate effective from the Reset Effective Date, as set forth in Paragraph 4 below. If the Interest Rate is so reset, the Debentures of the ____________ Series will bear interest at the Reset Rate from, and including, the Reset Effective Date until the principal thereof and accrued and unpaid interest thereon, if any, is paid or duly made available for payment. The “Reset Effective Date” shall mean (i) in connection with a Successful Remarketing of the Debentures of the ____________ Series during the Period for Early Remarketing, the third Business Day immediately following the Remarketing Date on which the Debentures of the ____________ Series included in such Remarketing are successfully remarketed, unless the Remarketing is successful within five Business Days of the next succeeding Quarterly Interest Payment Date, in which case such Quarterly Interest Payment Date will be the Reset Effective Date, and (ii) in connection with a Successful Remarketing of the Debentures of the ____________ Series during the Final Three-Day Remarketing Period, _________________.

 

Interest on a Debenture of the ____________ Series shall be payable initially quarterly in arrears on _______, ______, ___________ and __________ of each year (each a “Quarterly Interest Payment Date”), commencing ________________, to the Person in whose name such Debenture of the ____________ Series, or any predecessor Debenture of the ____________ Series, is registered on the books and records of the Security Registrar at the close of business on the relevant Regular Record Date for such Quarterly Interest Payment Date. Following a Successful Remarketing of the Debentures of the ____________ Series, interest on a Debenture of the ____________ Series shall be payable (i) on the Reset Effective Date and (ii) semi-annually in arrears on the Subsequent Interest Payment Dates (together with the Quarterly Interest Payment Dates and the Reset Effective Date, the “Interest Payment Dates”), in each case to the Person in whose name such Debenture of the ____________ Series, or any predecessor Debenture of the ____________ Series, is registered on the books and records of the Security Registrar at the close of business on the relevant Regular Record Date. “Subsequent Interest Payment Date” shall mean, following the Reset Effective Date, each semi-annual interest payment date established by the Company on the Remarketing Date on which the Debentures of the ____________ Series included in the Remarketing are successfully remarketed.

 

 

 

Interest payments will include interest accrued from and including the immediately preceding Interest Payment Date or, in the case of the first Interest Payment Date, from and including __________________, to, but excluding, such Interest Payment Date.

 

The amount of interest payable on the Debentures of the ____________ Series will be computed on the basis of a 360-day year of twelve 30-day months. The amount of interest payable for any period shorter than a full quarterly or semi-annual period for which interest is computed shall be computed on the basis of the number of days in such period using 30-day calendar months. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), except that, if such Business Day is in the next succeeding calendar year, then such payment shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such Interest Payment Date.

 

Pursuant to the Remarketing Agreement to be entered into between the Company, _______________________, ________________________ and ________________________ (collectively referred to as the “Remarketing Agents”), and The Bank of New York Mellon, as Purchase Contract Agent (the “Purchase Contract Agent”), as amended or supplemented from time to time (the “Remarketing Agreement”), and as described below, the Company (i) during the Period for Early Remarketing may, at its option, and in its sole discretion, select one or more Three-Day Remarketing Periods consisting of three successive Remarketing Dates on each of which it shall cause the Remarketing Agents to remarket, in whole (but not in part), (A) the Pledged Debentures of the ____________ Series, and (B) any Separate Debentures of the ____________ Series of Holders who have elected in the manner set forth in the Purchase Contract Agreement, the Pledge Agreement and the Remarketing Agreement to have such Separate Debentures of the ____________ Series so remarketed, for settlement on the third Business Day following the Remarketing Date on which a Successful Remarketing occurs, unless the Successful Remarketing occurs within five Business Days of the next succeeding Quarterly Interest Payment Date, in which case such settlement will occur on such Quarterly Interest Payment Date and (ii) if there has not been a Successful Remarketing during the Period for Early Remarketing, if any, shall cause the Remarketing Agents to remarket, in whole (but not in part), on each Remarketing Date during the Final Three-Day Remarketing Period, (A) the Pledged Debentures of the ____________ Series of Corporate Unit holders who have failed to notify the Purchase Contract Agent, on or prior to the seventh Business Day immediately preceding the Purchase Contract Settlement Date, of their intention to settle such Purchase Contracts in cash, and (B) any Separate Debentures of the ____________ Series of Holders who have elected in the manner set forth in the Purchase Contract Agreement, the Pledge Agreement and the Remarketing Agreement to have their Debentures of the ____________ Series so remarketed, for settlement on the Purchase Contract Settlement Date. If the Company, after consultation with the Remarketing Agents, decides not to proceed with the remarketing on a specific day during the Three-Day Remarketing Period for Early Remarketing (a) the Remarketing Agents will be deemed to have used their commercially reasonable efforts to remarket the Debentures of the ____________ Series on such day and (b) the Company shall cause the Remarketing Agent to remarket the Debentures of the _____________ Series on the next succeeding day during the Three-Day Remarketing Period for Early Remarketing. The Company may select a Three-Day Remarketing Period during the Period for Early Remarketing by designating each of the three sequential Remarketing Dates to comprise such Three-Day Remarketing Period; provided, that no Remarketing Date during the Period for Early Remarketing shall occur earlier than the fifth Business Day prior to _____________ nor later than the ninth Business Day prior to the Purchase Contract Settlement Date.

 

-2-

 

 

The Company will announce any Remarketing on the sixth Business Day immediately preceding the first Remarketing Date of a Three-Day Remarketing Period during the Period for Early Remarketing and, for the Final Three-Day Remarketing Period, the Company will announce the remarketing of the Debentures of the ____________ Series on the third Business Day immediately preceding the first Remarketing Date of the Final Three-Day Remarketing Period. Each such announcement (each a “Remarketing Announcement”) on each such date (each a “Remarketing Announcement Date”) shall specify the following:

 

(i)          (A)       if the Remarketing Announcement relates to a Remarketing to occur during the Period for Early Remarketing, that the Debentures of the ____________ Series may be remarketed on any and all of the sixth, seventh and eighth Business Days following such Remarketing Announcement Date; or

 

(B)       if the Remarketing Announcement relates to a Remarketing to occur during the Final Three-Day Remarketing Period, that the Debentures of the ____________ Series may be remarketed on any and all of the third, fourth and fifth Business Days following such Remarketing Announcement Date; or

 

(ii)         (A)       if the Remarketing Announcement relates to a Remarketing to occur during the Period for Early Remarketing, that the Reset Effective Date will be the third Business Day following the Successful Remarketing Date, unless the Successful Remarketing Date is within five Business Days of the next succeeding Quarterly Interest Payment Date in which case such Quarterly Interest Payment Date will be the Reset Effective Date; or

 

(B)       if the Remarketing Announcement relates to a Remarketing to occur during the Final Three-Day Remarketing Period, that the Reset Effective Date will be _________________ if there is a Successful Remarketing;

 

(iii)        that the Reset Rate and Subsequent Interest Payment Dates for the Debentures of the ____________ Series will be established on the Successful Remarketing Date and effective on and after the Reset Effective Date;

 

(iv)         (A)       if the Remarketing Announcement relates to a Remarketing to occur during the Period for Early Remarketing, that the Reset Rate will equal the interest rate on the Debentures of the ____________ Series that will enable the Debentures of the ____________ Series included in the Remarketing to be remarketed at a price equal to at least 100% of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price plus the Remarketing Fee (the “Remarketing Price”); or

 

(B)       if the Remarketing Announcement relates to a Remarketing to occur during the Final Three-Day Remarketing Period, that the Reset Rate will equal the interest rate on the Debentures of the ____________ Series that will enable the Debentures of the ____________ Series included in the Remarketing to be remarketed at a price equal to at least 100% of their aggregate principal amount plus the Remarketing Fee (the “Contract Settlement Price”); and

 

-3-

 

 

(v)       the Remarketing Fee.

 

On or prior to the Business Day immediately following the Remarketing Announcement Date, the Company will issue a press release through any appropriate news agency, including Bloomberg News and the Dow Jones Newswires, containing the Remarketing Announcement and publish such Remarketing Announcement on the Company’s website or through another public medium as the Company may use at the time. In addition, the Company will request, not later than ten (10) Business Days prior to each Remarketing Announcement Date, that the Depositary notify its participants holding Debentures of the ____________ Series, Corporate Units and Treasury Units of the Remarketing.

 

Each Holder of Separate Debentures of the ____________ Series may elect to have some or all of the Separate Debentures of the ____________ Series held by such Holder remarketed in any Remarketing. A Holder making such an election must, pursuant to the Purchase Contract Agreement, the Pledge Agreement and the Remarketing Agreement, notify the Custodial Agent and deliver such Separate Debentures of the ____________ Series to the Custodial Agent on or prior to 5:00 p.m., New York City time, on the second Business Day, but no earlier than the fifth Business Day, immediately preceding the first Remarketing Date of any Three-Day Remarketing Period. Any such notice and delivery may not be conditioned upon the level at which the Reset Rate is established in the Remarketing. Any such notice and delivery may be withdrawn on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first Remarketing Date of the applicable Three-Day Remarketing Period in accordance with the provisions set forth in the Pledge Agreement. Any such notice and delivery not withdrawn by such time will be irrevocable with respect to such Remarketing. Promptly after 11:00 a.m., New York City time, on the Business Day immediately preceding the first Remarketing Date of the applicable Three-Day Remarketing Period, the Custodial Agent, based on the notices and deliveries received by it prior to such time and pursuant to the Pledge Agreement, shall notify the Remarketing Agents of the principal amount of Separate Debentures of the ____________ Series to be tendered for Remarketing and shall cause such Separate Debentures of the ____________ Series to be presented to the Remarketing Agents. Debentures of the ____________ Series that are a component of Corporate Units will be deemed tendered for Remarketing and will be remarketed in accordance with the terms of the Remarketing Agreement.

 

Unless and until there has been a Successful Remarketing, on each Remarketing Date during a Three-Day Remarketing Period, the Company shall cause the Remarketing Agents to use their commercially reasonable efforts to remarket the Debentures of the ____________ Series that the Collateral Agent and the Custodial Agent shall have notified the Remarketing Agents have been tendered for, or otherwise are to be included in, the Remarketing, at a price per $1,000 principal amount of the Debentures of the ____________ Series such that the aggregate price for the aggregate principal amount of the Debentures of the ____________ Series being remarketed on that date will be approximately (i) if the Reset Effective Date is not the Purchase Contract Settlement Date, the Remarketing Price or (ii) if the Reset Effective Date is the Purchase Contract Settlement Date, the Contract Settlement Price.

 

In the event of a Successful Remarketing, on the Remarketing Date the Company will request the Depositary to notify its participants holding the Debentures of the ____________ Series, no later than the Business Day next succeeding the Successful Remarketing Date, of the Reset Rate, the Subsequent Interest Payment Dates and related Regular Record Dates for the Debentures of the ____________ Series. If a Successful Remarketing does not occur during a Three-Day Remarketing Period, the Company will cause a notice of such Failed Remarketing to be published on the Business Day following the last of the three Remarketing Dates comprising the Three-Day Remarketing Period (which notice, in the event of a Failed Remarketing on the Final Remarketing Date, shall be published not later than 9:00 a.m., New York City time, and shall include the procedures that must be followed if a Holder of Separate Debentures of the ____________ Series wishes to exercise its right to put such Separate Debentures of the ____________ Series to the Company), in each case, by making a timely release to any appropriate news agency, including Bloomberg News and the Dow Jones Newswires.

 

-4-

 

 

In accordance with the Depositary’s procedures, on the Reset Effective Date, the transactions described above with respect to each Debenture of the ____________ Series tendered for purchase and sold in such Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary participants shall be debited and credited and such Debentures of the ____________ Series delivered by book entry as necessary to effect purchases and sales of such Debentures of the ____________ Series. The Depositary shall make payment in accordance with its procedures.

 

In no event shall the aggregate price for the Debentures of the ____________ Series in a Remarketing be less than a price (the “Minimum Price”) equal to (i) in the case of a Remarketing during the Period for Early Remarketing, 100% of the sum of the Remarketing Treasury Portfolio Purchase Price and the Separate Debentures Purchase Price or (ii) in the case of a Remarketing during the Final Three-Day Remarketing Period, 100% of the aggregate principal amount of the Debentures of the ____________ Series being remarketed. A remarketing attempt on any Remarketing Date will be deemed unsuccessful if the (i) Remarketing Agents are unable to remarket the Debentures of the ____________ Series for an aggregate price that is at least equal to the Minimum Price; or (ii) if a condition precedent to such Remarketing is not fulfilled or, if subject to waiver, waived.

 

The right of each Holder of Debentures of the ____________ Series that are included in Corporate Units to have such Debentures of the ____________ Series, and of each Holder of Separate Debentures of the ____________ Series to have any Separate Debentures of the ____________ Series (together, the “Remarketed Debentures of the ____________ Series”), remarketed and sold in any Remarketing, and the obligation of the Company to conduct a Remarketing, shall be subject to the following: (i) the Remarketing Agents have conducted a Remarketing pursuant to the terms of the Remarketing Agreement, (ii) a Special Event Redemption or Mandatory Redemption has not occurred and will not occur prior to such Remarketing Date or the Reset Effective Date, (iii) the Remarketing Agents are able to find a purchaser or purchasers for Remarketed Debentures of the ____________ Series at the Minimum Price, and (iv) the purchaser or purchasers deliver the purchase price therefor to the Remarketing Agents as and when required.

 

None of the Trustee, the Company or the Remarketing Agents shall be obligated in any case to provide funds to make payment upon tender of Debentures of the ____________ Series for Remarketing.

 

“Remarketing Treasury Portfolio” shall mean

 

(a)       U.S. Treasury securities (or principal or interest strips thereof) that mature on or prior to _______________ in an aggregate amount at maturity equal to the principal amount of the Debentures of the ____________ Series that are a component of the Corporate Units;

 

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(b)       if the Reset Effective Date occurs prior to _____________, with respect to the Quarterly Interest Payment Dates on the Debentures of the ____________ Series that would have occurred on ____________ and _________________, U.S. Treasury securities (or principal or interest strips thereof) that mature on or prior to (i) ____________ (in connection with the Quarterly Interest Payment Date that would have occurred on ____________) and (ii) _______________ (in connection with the Quarterly Interest Payment Date that would have occurred on _________________), each in an aggregate amount at maturity equal to the aggregate interest payments that would be due on ____________ and _________________, respectively, on the principal amount of the Debentures of the ____________ Series that would have been a component of the Corporate Units assuming no Remarketing and no reset of the Interest Rate on the Debentures of the ____________ Series and assuming that interest on the Debentures of the ____________ Series accrued from the Reset Effective Date to, but excluding, _________________ and from _______________ to, but excluding, ________________, respectively ____________; and

 

(c)       if the Reset Effective Date occurs on or after ____________, with respect to the Quarterly Interest Payment Date on the Debentures of the ____________ Series that would have occurred on _________________, U.S. Treasury securities (or principal or interest strips thereof) that mature on or prior to _______________ in an aggregate amount at maturity equal to the aggregate interest payment that would be due on _________________ the principal amount of the Debentures of the ____________ Series that would have been a component of the Corporate Units assuming no Remarketing and no reset of the Interest Rate on the Debentures of the ____________ Series and assuming that interest on the Debentures of the ____________ Series accrued from the Reset Effective Date to, but excluding, _________________.

 

If, on the applicable Remarketing Date during the Period for Early Remarketing, U.S. Treasury securities (or principal or interest strips thereof) that are to be included in the Remarketing Treasury Portfolio have a yield that is less than zero, then instead, at the Company’s option, an amount of cash equal to the aggregate principal amount at maturity of the applicable U.S. Treasury securities (or principal or interest strips thereof) described above will be substituted for the Debentures of the ____________ Series that are components of the Corporate Units and will be pledged to NextEra Energy through the Collateral Agent to secure the Corporate Unit holders’ obligations to purchase common stock, $0.01 par value per share, of NextEra Energy (the “Common Stock”)1 under the related Purchase Contracts. In such case, references to “U.S. Treasury securities (or principal or interest strips thereof)” in connection with the Remarketing Treasury Portfolio will, thereafter, be deemed to be references to such amount of cash.

 

“Remarketing Treasury Portfolio Purchase Price” shall mean the lowest aggregate price quoted by a primary U.S. government securities dealer in New York City to the Quotation Agent on the applicable Remarketing Date during the Period for Early Remarketing for the purchase of the Remarketing Treasury Portfolio for settlement on the Reset Effective Date, provided, that if the Remarketing Treasury Portfolio consists of cash, “Remarketing Treasury Portfolio Purchase Price” means an amount of cash equal to the aggregate principal amount at maturity of the U.S. Treasury securities (or principal or interest strips thereof) that would have otherwise been components of the Remarketing Treasury Portfolio. “Quotation Agent” means any primary U.S. government securities dealer in New York City selected by the Company.

 

 

1 To be revised if preferred stock or depositary shares are to be issued upon settlement of purchase contracts.

 

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4.       In connection with each Remarketing, the Remarketing Agents shall determine the reset interest rate (rounded to the nearest one-thousandth (0.001) of one percent per annum) that they believe will, when applied to the Debentures of the ____________ Series, enable the aggregate principal amount of the Debentures of the ____________ Series being remarketed on such date to be sold at an aggregate price equal to at least (i) if the Reset Effective Date is not the Purchase Contract Settlement Date, the Remarketing Price or (ii) if the Reset Effective Date is the Purchase Contract Settlement Date, the Contract Settlement Price. The reset interest rate established on the Remarketing Date on which a Successful Remarketing occurs shall be the “Reset Rate.”

 

Anything herein to the contrary notwithstanding, the Reset Rate shall not exceed the maximum rate permitted by applicable law and the Remarketing Agents shall have no obligation to determine whether there is any limitation under applicable law on the Reset Rate or, if there is any such limitation, the maximum permissible Reset Rate on the Debentures of the ____________ Series and it shall rely solely upon written notice from the Company (which the Company agrees to provide prior to the eighth Business Day before the first Remarketing Date of any Three-Day Remarketing Period) as to whether or not there is any such limitation and, if so, the maximum permissible Reset Rate.

 

In the event of a Failed Remarketing or if no Debentures of the ____________ Series are included in Corporate Units and none of the Holders of the Separate Debentures of the ____________ Series elect to have their Debentures of the ____________ Series remarketed in any Remarketing, the Interest Rate on the Debentures of the ____________ Series will not be reset and will continue to be the Interest Rate.

 

In the event of a Successful Remarketing, the Interest Rate shall be reset at the Reset Rate as determined by the Remarketing Agents under the Remarketing Agreement. The Reset Rate shall be effective from and after the Reset Effective Date.

 

5.       Each installment of interest on a Debenture of the ____________ Series shall be payable to the Person in whose name such Debenture is registered at the close of business on the “Regular Record Date” for such interest installment, which (a) as long as all of the Debentures of the ____________ Series remain in certificated form and are held by the Purchase Contract Agent, or are held in book-entry only form, will be one Business Day prior to the corresponding Interest Payment Date, or (b) if the Debentures of the ____________ Series remain in certificated form, but all are not held by the Purchase Contract Agent, or are not held in book-entry only form, will be at least one Business Day but not more than sixty (60) Business Days prior to such corresponding Interest Payment Date, as selected by the Company; provided that, unless the Purchase Contracts described in the Purchase Contract Agreement have been terminated, such Regular Record Date must be the same as the record date for payment of distributions and Contract Adjustment Payments for the Corporate Units described in the Purchase Contract Agreement; and provided further that interest payable on the Stated Maturity Date will be paid to the Person to whom principal is paid. The Security Registrar may, but shall not be required to, register the transfer of Debentures of the ____________ Series during the ten (10) days immediately preceding an Interest Payment Date. Any installment of interest on the Debentures of the ____________ Series not punctually paid or duly provided for will forthwith cease to be payable to the Holders of such Debentures of the ____________ Series on such Regular Record Date, and may be paid to the Persons in whose name the Debentures of the ____________ Series are registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest. Notice of such Defaulted Interest and Special Record Date shall be given to the Holders of the Debentures of the ____________ Series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debentures of the ____________ Series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

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6.       The principal and each installment of interest on the Debentures of the ____________ Series shall be payable at, and registration and registration of transfers and exchanges in respect of the Debentures of the ____________ Series may be effectuated at, the office or agency of the Company in New York City, New York; provided that payment of interest may be made at the option of the Company by check mailed to the address of the Persons entitled thereto or by wire transfer to an account designated by the Person entitled thereto. Notices and demands to or upon the Company in respect of the Debentures of the ____________ Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the Debentures of the ____________ Series.

 

7.       If a Special Event shall occur and be continuing, the Company may, at its option, redeem the Debentures of the ____________ Series in whole (but not in part) at any time (“Special Event Redemption”) at a Redemption Price equal to, for each Debenture of the ____________ Series, the Redemption Amount plus accrued and unpaid interest, if any, thereon to, but excluding, the date of redemption (the “Special Event Redemption Date”). If the Special Event Redemption occurs prior to a Successful Remarketing of the Debentures of the ____________ Series, or if the Debentures of the ____________ Series are not successfully remarketed, in each case prior to the Purchase Contract Settlement Date, the Redemption Price payable with respect to the Debentures of the ____________ Series that are a component of the Corporate Units at the time of the Special Event Redemption will be paid to the Collateral Agent under the Pledge Agreement dated as of _________________ by and between NextEra Energy, ____________________________________, as Collateral Agent (the “Collateral Agent”), Custodial Agent (the “Custodial Agent”) and Securities Intermediary, and The Bank of New York Mellon, as Purchase Contract Agent (the “Pledge Agreement”), on the Special Event Redemption Date on or prior to 12:30 p.m., New York City time, by check or wire transfer in immediately available funds at such place and to such account as may be designated by the Collateral Agent and the Collateral Agent will purchase the Special Event Treasury Portfolio on behalf of the holders of Corporate Units and remit the remainder of the Redemption Price, if any, to the Purchase Contract Agent for payment to the holders. Thereafter, the applicable ownership interests in the Special Event Treasury Portfolio will be substituted for the Applicable Ownership Interests in Debentures of the ____________ Series and will be pledged to NextEra Energy, through the Collateral Agent, to secure the Corporate Unit holders’ obligations to purchase Common Stock under the Purchase Contracts.

 

“Special Event” means either a Tax Event or an Accounting Event.

 

“Accounting Event” means the receipt by the audit committee of NextEra Energy’s Board of Directors (or, if there is no such committee, by such Board of Directors) of a written report in accordance with Statement on Auditing Standards (“SAS”) No. 97, “Amendment to SAS No. 50—Reports on the Application of Accounting Principles,” from NextEra Energy’s independent auditors, provided at the request of NextEra Energy management, to the effect that, as a result of a change in accounting rules that becomes effective after __________________, NextEra Energy must either (a) account for the Purchase Contracts as derivatives or otherwise mark-to-market or measure the fair value of all or any portion of the Purchase Contracts with changes appearing in NextEra Energy’s income statement) or (b) account for the Equity Units using the if-converted method, and that such accounting treatment will cease to apply upon redemption of the Debentures of the ____________ Series.

 

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“Tax Event” means the receipt by the Company of an opinion of nationally recognized independent tax counsel experienced in such matters (which may be Morgan, Lewis & Bockius LLP or Squire Patton Boggs (US) LLP) to the effect that there is more than an insubstantial risk that interest payable by the Company on the Debentures of the ____________ Series would not be deductible, in whole or in part, by the Company for U.S. federal income tax purposes as a result of (a) any amendment to, change in, or announced proposed change in, the laws, or any regulations thereunder, of the U.S. or any political subdivision or taxing authority thereof or therein affecting taxation, (b) any amendment to or change in an interpretation or application of any such laws or regulations by any legislative body, court, governmental agency or regulatory authority or (c) any interpretation or pronouncement by any legislative body, court, governmental agency or regulatory authority that provides for a position with respect to any such laws or regulations that differs from the generally accepted position on __________________, which amendment, change or proposed change is effective or which interpretation or pronouncement is announced on or after __________________.

 

“Redemption Amount” means

 

(a)       in the case of a Special Event Redemption occurring

 

(i)       prior to the earlier of (x) a Successful Remarketing, or (y) the Purchase Contract Settlement Date, for each Debenture of the ____________ Series, the product of the principal amount of that Debenture of the ____________ Series and a fraction, the numerator of which is the Special Event Treasury Portfolio Purchase Price and the denominator of which is the aggregate principal amount of the Debentures of the ____________ Series that are a component of the Corporate Units on the Special Event Redemption Date, and

 

(ii)      on or after (x) a Successful Remarketing, or (y) the Purchase Contract Settlement Date, for each Debenture of the ____________ Series Outstanding on the Special Event Redemption Date, the principal amount of the Debenture of the ____________ Series.

 

(b)       in the case of a Mandatory Redemption occurring

 

(i)       prior to the earlier of (x) a Successful Remarketing, or (y) the Purchase Contract Settlement Date, for each Debenture of the ____________ Series, the product of the principal amount of that Debenture of the ____________ Series and a fraction, the numerator of which is the Mandatory Redemption Treasury Portfolio Purchase Price and the denominator of which is the aggregate principal amount of the Debentures of the ____________ Series that are a component of the Corporate Units on the date of the Mandatory Redemption (the “Mandatory Redemption Date”), and

 

(ii)      on or after (x) a Successful Remarketing, or (y) the Purchase Contract Settlement Date, for each Debenture of the ____________ Series Outstanding on the Mandatory Redemption Date, the principal amount of the Debenture of the ____________ Series.

 

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“Mandatory Redemption Treasury Portfolio Purchase Price” means the lowest aggregate price quoted by a primary U.S. government securities dealer in New York City to the Quotation Agent on the third Business Day immediately preceding the Mandatory Redemption Date for the purchase of the Treasury portfolio consisting of the same securities as the Special Event Treasury Portfolio for settlement on the Mandatory Redemption Date.

 

“Special Event Treasury Portfolio Purchase Price” means the lowest aggregate price quoted by a primary U.S. government securities dealer in New York City to the Quotation Agent on the third Business Day immediately preceding the Special Event Redemption Date for the purchase of the Special Event Treasury Portfolio for settlement on the Special Event Redemption Date.

 

The Treasury Portfolio to be purchased in connection with a Special Event Redemption, herein referred to as “Special Event Treasury Portfolio”, will consist of:

 

(i)       U.S. Treasury securities (or principal or interest strips thereof) that mature on or prior to _______________ in an aggregate amount at maturity equal to the aggregate principal amount of the Debentures of the ____________ Series that are a component of the Corporate Units, and

 

(ii)      with respect to each scheduled Interest Payment Date on the Debentures of the ____________ Series that occurs after the Special Event Redemption Date and on or prior to _______________________ , U.S. Treasury securities (or principal or interest strips thereof) that mature on or prior to such scheduled Interest Payment Date in an aggregate amount at maturity equal to the aggregate interest payment that would be due on the aggregate principal amount of the Debentures of the ____________ Series that are a component of the Corporate Units on such Interest Payment Date (assuming no Special Event Redemption) and accruing from and including the immediately preceding Interest Payment Date to which interest has been paid.

 

Notice of any redemption will be mailed at least thirty (30) days but not more than sixty (60) days before the Special Event Redemption Date to each registered Holder of Debentures of the ____________ Series to be redeemed at its registered address as more fully provided in the Indenture. Unless the Company defaults in payment of the Redemption Price, on and after the Special Event Redemption Date interest shall cease to accrue on such Debentures of the ____________ Series.

 

8.       Debentures of the ____________ Series are subject to a put right (the “Put Right”) in the following circumstances:

 

(a)        Each Holder of Separate Debentures of the ____________ Series may exercise its Put Right, in the event of a Failed Remarketing during the Final Three-Day Remarketing Period by providing written notice at least two Business Days prior to the Purchase Contract Settlement Date. The Put Price will be paid to such Holder on the Purchase Contract Settlement Date.

 

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(b)        Each Holder of an Applicable Ownership Interest in Debentures of the ____________ Series will be deemed to have automatically exercised its Put Right, in the event of a Failed Remarketing during the Final Three-Day Remarketing Period, unless, on the second Business Day immediately prior to the Purchase Contract Settlement Date, such Holder provides written notice to the Purchase Contract Agent of its intention to settle the related Purchase Contracts with separate cash and, on or prior to the Business Day immediately preceding the Purchase Contract Settlement Date, delivers to the Collateral Agent $50 in cash per each of such Holder’s related Purchase Contracts. As provided in Section 5.4 of the Purchase Contract Agreement, each Holder of an Applicable Ownership Interest in Debentures of the ____________ Series will be deemed to have elected to apply a portion of the Put Price equal to the principal amount of such Holder’s Debentures of the ____________ Series underlying the Applicable Ownership Interests in Debentures of the ____________ Series against such Holder’s obligations to NextEra Energy under the related Purchase Contracts, thereby satisfying such obligations in full, and NextEra Energy will deliver to such Holder the Common Stock issued in accordance with each related Purchase Contract. Any amount of the Put Price remaining following settlement of each such Purchase Contract will be delivered to the Purchase Contract Agent for the benefit of such Holder.

 

9.       Initially (a) the Debentures of the ____________ Series will be issued in certificated form registered in the name of The Bank of New York Mellon, as Purchase Contract Agent, under the Purchase Contract Agreement dated as of _________________ between NextEra Energy and The Bank of New York Mellon, as Purchase Contract Agent (the “Purchase Contract Agreement”), as a component of Corporate Units; and (b) the Separate Debentures of the ____________ Series, if any, will be issued in global form in the name of Cede & Co. (as nominee for The Depository Trust Company (“DTC”), the initial Depositary for the Debentures of the ____________ Series that are not a component of Corporate Units), and may bear such legends as either the Purchase Contract Agent or DTC, respectively, may reasonably request.

 

10.       If the Company shall make any deposit of money and/or Eligible Obligations with respect to any Debentures of the ____________ Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A)     an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the Debentures of the ____________ Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Debentures of the ____________ Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof; or

 

(B)      an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such Debentures of the ____________ Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to U.S. federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

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11.       The Debentures of the ____________ Series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). [The following shall constitute “Guarantor Events” with respect to the Debentures of the ____________ Series:

 

(A)     the failure of the Guarantee Agreement to be in full force and effect;

 

(B)      the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C)      the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

Notwithstanding anything to the contrary contained in the Debentures of the ____________ Series, this certificate or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Debentures of the ____________ Series within sixty (60) days after the occurrence of such Guarantor Event (the “Mandatory Redemption”) at a Redemption Price specified below unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Debentures of the ____________ Series are then rated by those rating agencies, or, if the Debentures of the ____________ Series are then rated by only one of those rating agencies, then such rating agency, or, if the Debentures of the ____________ Series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Debentures of the ____________ Series shall be investment grade (i.e. in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

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If the Mandatory Redemption occurs (i) prior to _________________, if the Purchase Contracts have been previously or concurrently terminated, the Redemption Price will be equal to the principal amount of each Debenture of the ____________ Series; (ii) prior to _________________, if the Purchase Contracts have not been so previously or concurrently terminated, the Redemption Price will be equal to the Redemption Amount for each Debenture of the ____________ Series and such Redemption Price payable with respect to the Debentures of the Thirty-First Series that are a component of the Corporate Units at the time of the Mandatory Redemption will be distributed to the Collateral Agent as described in Paragraph 7 with respect to the Special Event Redemption; or (iii) on or after _________________, the Redemption Price will be equal to the principal amount of each Debenture of the ____________ Series; in each case, together with accrued and unpaid interest, if any, to, but excluding, the Mandatory Redemption Date.]

 

12.    [With respect to the Debentures of the ____________ Series, each of the following events shall be an additional Event of Default under the Indenture:

 

(A)     the consolidation of the Guarantor with or merger of the Guarantor into any other Person, or the conveyance or other transfer or lease by the Guarantor of its properties and assets substantially as an entirety to any Person, unless

 

(i)       the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or other transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall be a Person organized and existing under the laws of the U.S., any State thereof or the District of Columbia, and shall expressly assume the obligations of the Guarantor under the Guarantee Agreement; and

 

(ii)       immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and

 

(B)      the failure of the Company to redeem the Outstanding Debentures of the ____________ Series if and as required by Paragraph 11 hereof.]

 

13.    [If a Guarantor Event occurs and the Company is not required to redeem the Debentures of the ____________ Series pursuant to Paragraph 11 hereof, the Company will provide to the Trustee and the Holders of the Debentures of the ____________ Series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement. The provision of such reports and information to the Trustee shall be for informational purposes only and the Trustee’s receipt or deemed receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture.]

 

14.    The Debentures of the ____________ Series that are a component of the Corporate Units will be issued in certificated form, will be in denominations of $1,000 and integral multiples of $1,000, without coupons; provided, however, that upon release by the Collateral Agent of Debentures of the ____________ Series underlying the Applicable Ownership Interests in Debentures of the ____________ Series pledged to secure the Corporate Units holders’ obligations under the related Purchase Contracts (other than any release of the Debentures of the ____________ Series in connection with the creation of Treasury Units, an Early Settlement, a Fundamental Change Early Settlement, or a Remarketing) the Debentures of the ____________ Series will be issuable in denominations of $50 principal amount and integral multiples thereof.

 

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15.    The Company reserves the right to require legends on Debentures of the ______________ Series as it may determine are necessary to ensure compliance with the securities laws of the United States and the states therein and any other applicable laws.

 

16.    No service charge shall be made for the registration of transfer or exchange of the Debentures of the ____________ Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

17.    The Debentures of the ____________ Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

18.    The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the Debentures of the ____________ Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

19.    The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

20.    In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

21.    In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the Debentures of the ____________ Series requested in the accompanying Company Order No. __ have been complied with.

 

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IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this ____ day of __________ in __________________.

 

___________________________

 

 

 

 

Appendix A

 

Defined Terms

 

“Accounting Event” shall have the meaning set forth in Paragraph 7.

 

“Applicable Ownership Interest in Debentures of the ____________ Series” means a 5% undivided beneficial ownership interest in $1,000 principal amount of Debentures of the ____________ Series that is a component of a Corporate Unit, and “Applicable Ownership Interests in Debentures of the ____________ Series” means the aggregate of each Applicable Ownership Interest in Debentures of the ____________ Series that is a component of all Corporate Units then outstanding.

 

“Collateral Agent” shall have the meaning set forth in Paragraph 7.

 

“Common Stock” shall have the meaning set forth in Paragraph 3.

 

“Company” shall have the meaning set forth in the first paragraph.

 

“Contract Adjustment Payments” shall have the meaning specified in the Purchase Contract Agreement.

 

“Contract Settlement Price” shall have the meaning set forth in Paragraph 3.

 

“Corporate Units” shall have the meaning specified in the Purchase Contract Agreement.

 

“Custodial Agent” shall have the meaning set forth in Paragraph 7.

 

“Debentures of the ____________ Series” shall have the meaning set forth in Paragraph 1.

 

“Depositary” means a clearing agency registered under Section 17A of the Securities Exchange Act of 1934, as amended, that is designated to act as Depositary for the Corporate Units, Treasury Units and Separate Debentures pursuant to the Purchase Contract Agreement.

 

“DTC” shall have the meaning set forth in Paragraph 9.

 

“Early Settlement” shall have the meaning specified in the Purchase Contract Agreement.

 

“Failed Remarketing” will occur if, in spite of using their commercially reasonable efforts, the Remarketing Agents cannot remarket the

 

(i)       Pledged Debentures of the ____________ Series and

 

(ii)      the Separate Debentures of the ____________ Series, if any, the Holders of which have elected to participate in such Remarketing,

 

(a) during any Three-Day Remarketing Period during the Period for Early Remarketing at a price not less than 100% of the sum of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price, (b) during the Final Three-Day Remarketing Period at a price not less than 100% of the aggregate principal amount of the Debentures of the ____________ Series being remarketed, or (c) because a condition precedent set forth in the Purchase Contract Agreement is not fulfilled.

 

-16-  

 

 

“Final Remarketing Date” shall mean the third Business Day immediately preceding _________________.

 

“Final Three-Day Remarketing Period” shall mean the Three-Day Remarketing Period beginning on and including the fifth Business Day, and ending on and including the third Business Day, prior to _________________.

 

“Fundamental Change Early Settlement” shall have the meaning specified in the Purchase Contract Agreement.

 

“Guarantee Agreement” shall have the meaning set forth in Paragraph 11.

 

“Guarantor” shall have the meaning set forth in Paragraph 11.

 

“Guarantor Events” shall have the meaning set forth in Paragraph 11.

 

“Indenture” shall have the meaning set forth in the first paragraph.

 

“Interest Payment Dates” shall have the meaning set forth in Paragraph 3.

 

“Interest Rate” shall have the meaning set forth in Paragraph 3.

 

“Mandatory Redemption” shall have the meaning set forth in Paragraph 11.

 

“Mandatory Redemption Date” shall have the meaning set forth in Paragraph 7.

 

“Mandatory Redemption Treasury Portfolio Purchase Price” shall have the meaning set forth in Paragraph 7.

 

“Minimum Price” shall have the meaning set forth in Paragraph 3.

 

“NextEra Energy” shall mean NextEra Energy, Inc., a Florida corporation.

 

“Period for Early Remarketing” shall mean the period beginning on and including the fifth Business Day prior to _____________ and ending on and including the ninth Business Day preceding _________________.

 

“Pledge Agreement” shall have the meaning set forth in Paragraph 7.

 

“Pledged Debentures of the ____________ Series” shall mean Applicable Ownership Interests in Debentures of the ____________ Series from time to time credited to the Collateral Account and not then released from the lien and security interest in the Collateral created by the Pledge Agreement.

 

“Purchase Contract” shall have the meaning specified in the Purchase Contract Agreement.

 

“Purchase Contract Agent” shall have the meaning set forth in Paragraph 3.

 

-17-  

 

 

“Purchase Contract Agreement” shall have the meaning set forth in Paragraph 9.

 

“Purchase Contract Settlement Date” shall mean _________________.

 

“Put Price” shall mean the price for each Debenture of the ____________ Series equal to the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the Purchase Contract Settlement Date.

 

“Put Right” shall have the meaning set forth in Paragraph 8.

 

“Quarterly Interest Payment Date” shall have the meaning set forth in Paragraph 3.

 

“Quotation Agent” shall have the meaning set forth in Paragraph 3.

 

“Redemption Amount” shall have the meaning set forth in Paragraph 7.

 

“Regular Record Date” shall have the meaning set forth in Paragraph 5.

 

“Remarketed Debentures of the ____________ Series” shall have the meaning set forth in Paragraph 3.

 

“Remarketing” means the remarketing of the Debentures of the ____________ Series pursuant to the Remarketing Agreement during a Three-Day Remarketing Period.

 

“Remarketing Agents” shall have the meaning set forth in Paragraph 3.

 

“Remarketing Agreement” shall have the meaning set forth in Paragraph 3.

 

“Remarketing Announcement” shall have the meaning set forth in Paragraph 3.

 

“Remarketing Announcement Date” shall have the meaning set forth in Paragraph 3.

 

“Remarketing Dates” shall mean one or more Business Days during the period beginning on the fifth Business Day immediately preceding _____________ and ending on the third Business Day immediately preceding _________________ selected by the Company as a date on which the Remarketing Agents shall, in accordance with the terms of the Remarketing Agreement, remarket the Debentures of the ____________ Series.

 

“Remarketing Fee” shall mean (a) in connection with a Successful Remarketing during the Period for Early Remarketing, the amount that may be deducted from any portion of the proceeds from the Remarketing that is in excess of the sum of the Remarketing Treasury Portfolio Purchase Price and the aggregate Separate Debentures Purchase Price equal to [25] basis points ([0.25]%) of the sum of the Remarketing Treasury Portfolio Purchase Price and the Separate Debentures Purchase Price; or (b) in connection with a Successful Remarketing during the Final Three-Day Remarketing Period, the amount that may be deducted from any portion of the proceeds from the Remarketing that is in excess of the aggregate principal amount of the Remarketed Debentures of the ____________ Series equal to [25] basis points ([0.25]%) of the aggregate principal amount of the Remarketed Debentures of the ____________ Series.

 

“Remarketing Per Debenture of the ____________ Series Price” means an amount equal to the Remarketing Treasury Portfolio Purchase Price divided by the number of the Debentures of the ____________ Series that are a component of Corporate Units remarketed on any Successful Remarketing Date during the Period for Early Remarketing.

 

-18-  

 

 

“Remarketing Price” shall have the meaning set forth in Paragraph 3.

 

“Remarketing Treasury Portfolio” shall have the meaning set forth in Paragraph 3.

 

“Remarketing Treasury Portfolio Purchase Price” shall have the meaning set forth in Paragraph 3.

 

“Reset Effective Date” shall have the meaning set forth in Paragraph 3.

 

“Reset Rate” shall have the meaning set forth in Paragraph 4.

 

“SAS” shall have the meaning set forth in Paragraph 7.

 

“Separate Debentures of the ____________ Series” means Debentures of the ____________ Series that are not a component of Corporate Units.

 

“Separate Debentures Purchase Price” means the amount in cash equal to the product of the Remarketing Per Debenture of the ____________ Series Price multiplied by the number of Separate Debentures of the ____________ Series remarketed in a Remarketing during the Period for Early Remarketing.

 

“Special Event” shall have the meaning set forth in Paragraph 7.

 

“Special Event Redemption” shall have the meaning set forth in Paragraph 7.

 

“Special Event Redemption Date” shall have the meaning set forth in Paragraph 7.

 

“Special Event Treasury Portfolio” shall have the meaning set forth in Paragraph 7.

 

“Special Event Treasury Portfolio Purchase Price” shall have the meaning set forth in Paragraph 7.

 

“Stated Maturity Date” shall have the meaning set forth in Paragraph 2.

 

“Subsequent Interest Payment Date” shall have the meaning set forth in Paragraph 3.

 

“Successful Early Remarketing” occurs when the Remarketing Agents are able to remarket the Pledged Debentures of the ____________ Series and the Separate Debentures of the ____________ Series participating in such Remarketing, if any, at a price equal to or greater than 100% of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price.

 

“Successful Final Remarketing” occurs when the Remarketing Agents are able to remarket the Pledged Debentures of the ____________ Series and the Separate Debentures of the ____________ Series participating in such Remarketing, if any, at a price equal to or greater than 100% of the aggregate principal amount of the Remarketed Debentures of the ____________ Series.

 

-19-  

 

 

“Successful Remarketing” means a Successful Early Remarketing or a Successful Final Remarketing.

 

“Successful Remarketing Date” means the Remarketing Date on which the Debentures of the ____________ Series participating in such Remarketing are successfully remarketed in accordance with the provisions of the Remarketing Agreement.

 

“Tax Event” shall have the meaning set forth in Paragraph 7.

 

“Three-Day Remarketing Period” shall mean a period beginning on and including the first of three sequential Remarketing Dates and ending on and including the third of such sequential Remarketing Dates during which Debentures of the ____________ Series will be remarketed in accordance with the provisions of the Remarketing Agreement.

 

“Treasury Unit” shall have the meaning specified in the Purchase Contract Agreement.

 

“Trustee” shall have the meaning set forth in the first paragraph.

 

“U.S.” means the United States of America, its Territories, its possessions and other areas subject to its political jurisdiction.

 

-20-  

 

 

Exhibit A

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to NextEra Energy Capital Holdings, Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No._______________ CUSIP No. __________

 

[FORM OF FACE OF DEBENTURE]

 

NEXTERA ENERGY CAPITAL HOLDINGS, INC.

 

SERIES __ DEBENTURE DUE _______________

 

NEXTERA ENERGY CAPITAL HOLDINGS, INC., a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company”, which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to

 

, or registered assigns, the principal sum of ____________________ Dollars, as set forth on Schedule I hereto, on the Stated Maturity Date, and to pay interest on said principal amount from __________________ or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly in arrears on _______, ______, ___________ and __________ of each year (each a “Quarterly Interest Payment Date”), commencing ________________, at the rate of ____% per annum to, but excluding, the Reset Effective Date, if any, and thereafter semi-annually in arrears on the Subsequent Interest Payment Dates (together with the Quarterly Interest Payment Dates and the Reset Effective Date, the “Interest Payment Dates”) at the Reset Rate, in each case on the basis of a 360-day year consisting of twelve 30-day months, until the principal hereof is paid or duly provided for or made available for payment, and (to the extent that the payment of such interest shall be legally enforceable) to pay interest, compounded quarterly, at the rate of ____% per annum on any overdue principal and payment of interest to, but excluding, the Reset Effective Date, if any, and thereafter, compounded semi-annually, at the Reset Rate, if any. Interest on the Securities of this series will accrue from and including __________________, to, but excluding, the first Interest Payment Date, and thereafter will accrue from and including the last Interest Payment Date to which interest has been paid or duly provided for.

 

 

 

No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), except that, if such Business Day is in the next succeeding calendar year, then such payment shall be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on the Interest Payment Date. The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security, or any Predecessor Security, is registered at the close of business on the “Regular Record Date” for such interest installment, which (a) as long as all of the Securities of this series remain in certificated form and are held by the Purchase Contract Agent or are held by a securities depository in book-entry only form, will be one Business Day prior to the corresponding Interest Payment Date, or (b) if the Securities of this series are in certificated form, but all are not held by the Purchase Contract Agent, or are not held by a securities depository in book-entry only form, will be at least one Business Day but not more than sixty (60) Business Days prior to such corresponding Interest Payment Date, as selected by the Company; provided that, unless the Purchase Contracts described in the Purchase Contract Agreement have been terminated, such Regular Record Date must be the same as the record date for payment of distributions and Contract Adjustment Payments for the Corporate Units described in the Purchase Contract Agreement; and provided further that interest payable on the Stated Maturity Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security, or any Predecessor Security, is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto.

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A - 2

 

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in ___________________.

 

  NEXTERA ENERGY CAPITAL HOLDINGS, INC.
     
  By:  

 

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  THE BANK OF NEW YORK MELLON, as Trustee
     
  By:   
    Authorized Signatory

 

A - 3

 

 

[FORM OF REVERSE OF DEBENTURE]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Debt Securities), dated as of June 1, 1999 (herein, together with any amendments thereto, called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on __________________, creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

Unless an earlier Special Event Redemption or Mandatory Redemption has occurred, this Security shall mature and the principal amount thereof shall be due and payable together with all accrued and unpaid interest thereon on the Stated Maturity Date. The “Stated Maturity Date” shall mean _________________.

 

If a Special Event shall occur and be continuing, the Company may, at its option, redeem the Securities of this series in whole, but not in part, at any time, at a price per Security equal to the Redemption Price as set forth in the Officer’s Certificate.

 

If this Security is not a component of Corporate Units, the Holder of this Security may, on or prior to the second Business Day, but no earlier than the fifth Business Day, immediately preceding the first Remarketing Date of any Three-Day Remarketing Period, elect to have this Security remarketed, by delivering this Security, along with a notice of such election to ________________________________, as Collateral Agent and Custodial Agent, for Remarketing in accordance with the Pledge Agreement dated as of _________________ between NextEra Energy, The Bank of New York Mellon and ____________________________________, as Collateral Agent, Custodial Agent and Securities Intermediary.

 

The Securities of this series are subject to a put right (the “Put Right”) in the following circumstances:

 

(A)     If there has not been a Successful Remarketing prior to the Purchase Contract Settlement Date, each Holder of Securities of this series that are not part of a Corporate Unit may exercise its Put Right by providing written notice at least two Business Days prior to the Purchase Contract Settlement Date, all as more fully described in the Officer’s Certificate. The Put Price will be paid to such Holder on the Purchase Contract Settlement Date. The “Put Price” will be equal to the principal amount of such Securities, plus accrued and unpaid interest, if any, to, but excluding, the Purchase Contract Settlement Date.

 

A - 4

 

 

(B)      If there has not been a Successful Remarketing prior to the Purchase Contract Settlement Date, each Holder of a 5% undivided beneficial ownership interest in $1,000 principal amount of Securities that is a component of a Corporate Unit (the “Applicable Ownership Interest in Securities”) will be deemed to have automatically exercised its Put Right, upon a Failed Remarketing during the Final Three-Day Remarketing Period, unless, on the second Business Day immediately prior to the Purchase Contract Settlement Date, such Holder provides written notice to the Purchase Contract Agent of its intention to settle the related Purchase Contracts with separate cash and, on or prior to the Business Day immediately preceding the Purchase Contract Settlement Date, delivers to the Collateral Agent $50 in cash per each of such Holder’s related Purchase Contracts. As described in the Purchase Contract Agreement, each Holder of an Applicable Ownership Interest in Securities who has not settled the related Purchase Contracts with separate cash will be deemed to have elected to apply a portion of the Put Price equal to the principal amount of such Holder’s Applicable Ownership Interest in Securities against such Holder’s obligations to NextEra Energy under the related Purchase Contracts, thereby satisfying such obligations in full, and NextEra Energy will deliver to such Holder its common stock, $0.01 par value, issued in accordance with each related Purchase Contract. Any amount of the Put Price remaining following settlement of each such Purchase Contract will be delivered to the Purchase Contract Agent for the benefit of such Holder.

 

The Put Right of a Holder of the Securities of this series that are not part of a Corporate Unit shall only be exercisable upon delivery to the Company, on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Purchase Contract Settlement Date, at the offices of the agency of the Company in New York City, the Securities of this series to be repaid with the form entitled “Option to Elect Repayment” on the reverse of or otherwise accompanying such Securities duly completed. Any such notice received by the Company shall be irrevocable. All questions as to the validity, eligibility (including time of receipt) and acceptance of the Securities of this series for repurchase shall be determined by the Company, whose determination shall be final and binding. The payment of the Put Price in respect of such Securities of this series shall be made, either through the Trustee or the Company acting as Paying Agent on the Purchase Contract Settlement Date.

 

The Securities of this series will be absolutely, irrevocably and unconditionally guaranteed as to payment of principal, interest and premium, if any, by NextEra Energy, as Guarantor (the “Guarantor”), pursuant to a Guarantee Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of New York Mellon (as Guarantee Trustee) (the “Guarantee Agreement”). [The following shall constitute “Guarantor Events” with respect to the Securities of this series:

 

(A)     the failure of the Guarantee Agreement to be in full force and effect;

 

(B)      the entry by a court having jurisdiction with respect to the Guarantor of (i) a decree or order for relief in respect of the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or (ii) a decree or order adjudging the Guarantor bankrupt or insolvent, or approving as properly filed a petition by one or more entities other than the Guarantor seeking reorganization, arrangement, adjustment or composition of or in respect of the Guarantor under any applicable Federal or State bankruptcy, insolvency or other similar law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Guarantor or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of ninety (90) consecutive days; or

 

(C)      the commencement by the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or of any other case or proceeding seeking for the Guarantor to be adjudicated bankrupt or insolvent, or the consent by the Guarantor to the entry of a decree or order for relief in respect of itself in a case or proceeding under any applicable Federal or State bankruptcy, insolvency or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Guarantor, or the filing by the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency or other similar law, or the consent by the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Guarantor or of any substantial part of its property, or the making by the Guarantor of an assignment for the benefit of creditors, or the admission by the Guarantor in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Guarantor.

 

A - 5

 

 

Notwithstanding anything to the contrary contained in the Securities of this series, the Officer’s Certificate or the Indenture, the Company shall, if a Guarantor Event shall occur and be continuing, redeem all of the Outstanding Securities of this series within sixty (60) days after the occurrence of such Guarantor Event (the “Mandatory Redemption”) at a Redemption Price specified below unless, within thirty (30) days after the occurrence of such Guarantor Event, S&P Global Ratings, a division of S&P Global Inc., and Moody’s Investors Service, Inc. (if the Securities of this series are then rated by those rating agencies, or, if the Securities of this series are then rated by only one of those rating agencies, then such rating agency, or, if the Securities of this series are not then rated by either one of those rating agencies but are then rated by one or more other nationally recognized rating agencies, then at least one of those other nationally recognized rating agencies) shall have reaffirmed in writing that, after giving effect to such Guarantor Event, the credit rating on the Securities of this series shall be investment grade (i.e. in one of the four highest categories, without regard to subcategories within such rating categories, of such rating agency).

 

If the Mandatory Redemption occurs (i) prior to _________________ and if the Purchase Contracts have been previously or concurrently terminated, the Redemption Price for each Security of this series will be equal to the principal amount of such Security; (ii) prior to _________________, if the Purchase Contracts have not been so previously or concurrently terminated, the Redemption Price will be equal to the Redemption Amount for each Security of this series and such Redemption Price payable with respect to such Security that is a component of the Corporate Units at the time of the Mandatory Redemption will be distributed to the Collateral Agent on the date of Mandatory Redemption in exchange for each Security of this series pledged to the Collateral Agent, as provided in the Officer’s Certificate; or (iii) on or after _________________, the Redemption Price will be equal to the principal amount of each Security; in each case, together with accrued and unpaid interest, if any, to, but excluding, the date of Mandatory Redemption.

 

If a Guarantor Event occurs and the Company is not required to redeem the Securities of this series pursuant to the preceding paragraph, the Company will provide to the Trustee and the Holders of the Securities of this series annual and quarterly reports containing the information that the Company would be required to file with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it were subject to the reporting requirements of either of those Sections; provided, that if the Company is, at that time, subject to the reporting requirements of either of those Sections, the filing of annual and quarterly reports with the Securities and Exchange Commission pursuant to either of those Sections will satisfy the foregoing requirement.]

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

A - 6

 

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and integral multiples thereof, except as provided for in the Officer’s Certificate. As provided in the Indenture and subject to certain limitations therein set forth and set forth in the Officer’s Certificate, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

A - 7

 

 

SCHEDULE I

 

The initial amount of the Securities evidenced by this certificate is $_______________; 

CHANGES TO PRINCIPAL AMOUNT OF SECURITIES EVIDENCED BY THIS CERTIFICATE 

 

Date Amount of
decrease in
principal amount
of this Security 		Amount of
increase in
principal amount
of this Security 		Principal amount
of this Security
following such
decrease or
increase 		Signature of
authorized
signatory of
Trustee or
Security
Registrar
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

 

A - 8

 

 

OPTION TO ELECT REPAYMENT

 

The undersigned hereby irrevocably requests and instructs the Company to repay $________ principal amount of the within Security, pursuant to its terms, on the “Purchase Contract Settlement Date,” together with any interest thereon accrued but unpaid to, but excluding, the date of repayment, to the undersigned at: 

 

 

(Please print or type name and address of the undersigned)

 

and to issue to the undersigned, pursuant to the terms of the Security, a new Security or Securities representing the remaining aggregate principal amount of this Security.

 

For this Option to Elect Repayment to be effective, this Security with the Option to Elect Repayment duly completed must be received by the Company at the offices of its agency in New York City, no later than 5:00 p.m., New York City time, on the second Business Day prior to _________________.

 

Dated:

 

Signature:___________________________________

 

Signature Guarantee:___________________________________

 

Note: The signature to this Option to Elect Repayment must correspond with the name as written upon the face of the within Security without alternation or enlargement or any change whatsoever.

 

SIGNATURE GUARANTEE

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

A - 9

 

 

ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned assigns and transfers this Series _ Debenture due _________________ to:

 

 

 

 

 

 

 (Insert assignee’s social security or tax identification number)

 

 

 

 

 

 

 (Insert address and zip code of assignee)

 

and irrevocably appoints

 

 

 

 

 

 

 

agent to transfer this Security on the books of the Security Register. The agent may substitute another to act for him or her.

 

Date:______________________

 

Signature:___________________________________

 

Signature Guarantee:___________________________________

 

(Sign exactly as your name appears on the other side of this Security)

 

SIGNATURE GUARANTEE

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

A - 10

 

 

Exhibit 4(ar)

 

NEXTERA ENERGY, INC.

 

OFFICER’S CERTIFICATE

 

Creating the _______ Junior Subordinated [Debentures] due __

 

__________, __________ of NextEra Energy, Inc. (the “Company”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, does hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Subordinated Debt Securities) dated as of __________ between the Company and the Trustee (the “Indenture”), that:

 

1. The securities to be issued under the Indenture in accordance with this certificate shall be designated “_____ Junior Subordinated [Debentures] due __________” (referred to herein as the “[Debentures] of the __________ Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2. The [Debentures] of the __________ Series shall be issued by the Company in the initial aggregate principal amount of $___________. Additional [Debentures] of the __________ Series, without limitation as to amount, having the same terms as the Outstanding Debentures of the __________ Series (except for the issue date of the additional [Debentures] of the __________ Series and, if applicable the initial Interest Payment Date (as defined below)) may also be issued by the Company pursuant to the Indenture without the consent of the Holders of the then-Outstanding [Debentures] of the __________ Series. Any such additional [Debentures] of the __________ Series as may be issued pursuant to the Indenture from time to time shall be part of the same series as the then-Outstanding [Debentures] of the __________ Series.

 

3. The [Debentures] of the __________ Series shall mature and the principal shall be due and payable together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means __________.

 

4. The [Debentures] of the __________ Series shall bear interest at the rate of ____% per annum, compounded [quarterly][semi-annually], payable [(subject to the provisions contained in paragraph 9 below) [quarterly][semi-annually] in arrears on __________[,__________, __________] and __________ of each year (each, an “Interest Payment Date”), commencing _____________, to the Persons in whose names the Debentures of the __________ Series are registered, subject to exceptions as provided in the form set forth as Exhibit A hereto, at the close of business on the Regular Record Date immediately preceding such Interest Payment Date.

 

The amount of interest payable for any period will be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full [quarterly][semi-annual] period, on the basis of the actual number of days elapsed during such period using 30-day calendar months). If an Interest Payment Date, a Redemption Date or the Stated Maturity Date of the [Debentures] of the __________ Series falls on a day that is not a Business Day, the payment of interest and principal will be made on the next succeeding Business Day, and no interest on such payment will accrue for the period from and after the Interest Payment Date, the Redemption Date or the Stated Maturity Date, as applicable.

 

 

 

 

5. Registration of the [Debentures] of the __________ Series, and registration of transfers and exchanges in respect of the [Debentures] of the __________ Series, may be effectuated at the office or agency of the Company in New York City, New York. Notices and demands to or upon the Company in respect of the [Debentures] of the __________ Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the [Debentures] of the __________ Series.

 

6. [The [Debentures] of the __________ Series [will be redeemable at the option of the Company prior to the Stated Maturity Date as provided in the form set forth as Exhibit A hereto.][The [Debentures] of the __________ Series will not be redeemable at the option of the Company prior to the Stated Maturity Date.]

 

7. So long as all of the [Debentures] of the __________ Series are held by a securities depository in book-entry form, the Regular Record Date for the interest payable on any given Interest Payment Date with respect to the [Debentures] of the __________ Series shall be the close of business on the Business Day immediately preceding such Interest Payment Date; provided, however, that if any of the [Debentures] of the __________ Series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date.

 

8. So long as any [Debentures] of the __________ Series are Outstanding, the failure of the Company to pay interest, including Additional Interest (as defined in the form of the [Debentures] of the __________ Series set forth as Exhibit A hereto), if any, on any [Debentures] of the _____ Series within thirty (30) days after the same becomes due and payable (whether or not payment is prohibited by the subordination provisions of Article Fourteen of the Indenture) shall constitute an Event of Default; provided, however, that a valid deferral of the interest payments by the Company as contemplated in Section [312] of the Indenture [and paragraph 9 of this certificate] shall not constitute a failure to pay interest for this purpose.

 

9. [Provisions for deferral of the interest payments, if any, will be inserted here.]

 

10. If the Company shall make any deposit of money and/or Eligible Obligations with respect to any [Debentures] of the __________ Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A)       an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the [Debentures] of the __________ Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such [Debentures] of the __________ Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency; or

 

  -2-  

 

 

(B)       an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such [Debentures] of the __________ Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

11. The [Debentures] of the __________ Series will be initially issued in global form registered in the name of Cede & Co. (as nominee for The Depository Trust Company). The [Debentures] of the __________ Series in global form shall bear the depository legend in substantially the form set forth as Exhibit A hereto. The [Debentures] of the _____ Series in global form will contain restrictions on transfer, substantially as described in the form set forth as Exhibit A hereto.

 

12. No service charge shall be made for the registration of transfer or exchange of the [Debentures] of the __________ Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

13. The Company reserves the right to require legends on [Debentures] of the __________ Series as it may determine are necessary to ensure compliance with the securities laws of the United States and the states therein and any other applicable laws.

 

14. The Company agrees, and by acceptance of the [Debentures] of the __________ Series, each Holder will be deemed to have agreed, to treat the [Debentures] of the __________ Series as indebtedness for United States federal, state and local tax purposes.

 

15. The [Debentures] of the __________ Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

16. The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the [Debentures] of the __________ Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

17. The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

18. In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

19. In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the [Debentures] of the __________ Series requested in the accompanying Company Order No. __ have been complied with.

 

  -3-  

 

 

IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this ____ day of __________ in __________________.

 

  By:   

 

  -4-  

 

 

Exhibit A

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to NextEra Energy Capital Holdings, Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No._______________ CUSIP No. ___________

 

[FORM OF FACE OF JUNIOR SUBORDINATED [DEBENTURE]]

 

NEXTERA ENERGY, INC.

 

[________] JUNIOR SUBORDINATED [DEBENTURES] DUE _____

 

NEXTERA ENERGY, INC., a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company”, which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to __________, or registered assigns, the principal sum of __________ Dollars on ____________ (the “Stated Maturity Date”). The Company further promises (subject to deferral as set forth herein) to pay interest on the principal sum of this _____ Junior Subordinated [Debenture] due __________ (this “Security”) to the registered Holder hereof at the rate of ____% per annum, in like coin or currency, [quarterly][semi-annually] in arrears on __________[,__________, __________] and __________ of each year (each an “Interest Payment Date”) until the principal hereof is paid or duly provided for, such interest payments to commence on __________. Each interest payment shall include interest accrued from the most-recently preceding Interest Payment Date to which interest has either been paid or duly provided for (except that (i) the interest payment which is due on __________ shall include interest that has accrued from __________, and (ii) if this Security is authenticated during the period that (A) follows any particular Regular Record Date (as defined below) but (B) precedes the next occurring Interest Payment Date, then the registered Holder hereof shall not be entitled to receive any interest payment with respect to this Security on such next occurring Interest Payment Date). The Company also promises to pay Additional Interest (as defined below) with respect to an Optional Deferral Period (as defined below) to the registered Holder of this Security, to the extent payment of such Additional Interest is enforceable under applicable law, on any interest payment that is not made on the applicable Interest Payment Date, as specified on the reverse of this Security. No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay) with the same force and effect as if made on the Interest Payment Date. The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the “Regular Record Date” for such interest installment which shall be the close of business on the Business Day immediately preceding such Interest Payment Date so long as all of the Securities of this series are held by a securities depository in book-entry form; provided that if any of the Securities of this series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date; and provided further that interest payable on the Stated Maturity Date or a Redemption Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

  A - 1  
 

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto. The amount of interest payable on this Security will be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full [quarterly][semi-annual] period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate, shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

  A - 2  
 

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in ______________________.

 

  NEXTERA ENERGY, INC.
     
  By:  

 

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  THE BANK OF NEW YORK MELLON, as Trustee
     
  By:  
    Authorized Signatory

 

  A - 3  
 

 

[FORM OF REVERSE OF JUNIOR SUBORDINATED [DEBENTURE] DUE __________]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Subordinated Debt Securities), dated as of __________ (herein, together with any amendments thereto, called the “Indenture,”, which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on __________ creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

[Provisions for redemption at the option of the Company, if any, will be inserted here.]

 

The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture; provided, however, that the principal of and interest on the Securities of this series cannot be declared due and payable by reason of the occurrence and continuation of an Event of Default specified in Section 801(c) of the Indenture.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

  A - 4  
 

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

[Provisions for deferral of the interest payments, if any, will be inserted here.]

 

The Securities of this series are issuable only in registered form without coupons in denominations of [$____ and integral multiples of $______ in excess thereof][$____ and integral multiples thereof]. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

The Company has agreed, and by acceptance of this Security, the Holder will be deemed to have agreed, to treat this Security as indebtedness for United States federal, state and local tax purposes.

 

  A - 5  

 

Exhibit 4(bf)

 

NEXTERA ENERGY CAPITAL HOLDINGS, INC.

NEXTERA ENERGY, INC.

 

OFFICER’S CERTIFICATE

 

Creating the ____________ Junior Subordinated Debentures due __________

 

__________, __________ of NextEra Energy Capital Holdings, Inc. (the “Company”), and __________, ___________ of NextEra Energy, Inc. (the “Guarantor”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, do hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Subordinated Debt Securities) dated [as of September 1, 2006 among the Company, the Guarantor and the Trustee, as amended1][dated as of ___________, ____ among the Company, the Guarantor and the Trustee2] (the “Indenture”), that:

 

1. The securities to be issued under the Indenture in accordance with this certificate shall be designated “___________ Junior Subordinated Debentures due ___________” (referred to herein as the “Debentures of the __________ Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2. The Debentures of the __________ Series shall be issued by the Company in the initial aggregate principal amount of $__________. Additional Debentures of the __________ Series, without limitation as to amount, having the same terms as the Outstanding Debentures of the __________ Series (except for the issue date of the additional Debentures of the __________ Series and, if applicable the initial Interest Payment Date (as defined below)) may also be issued by the Company pursuant to the Indenture without the consent of the Holders of the then-Outstanding Debentures of the __________ Series. Any such additional Debentures of the __________ Series as may be issued pursuant to the Indenture from time to time shall be part of the same series as the then-Outstanding Debentures of the __________ Series.

 

3. The Debentures of the __________ Series shall mature and the principal shall be due and payable, together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means __________.

 

4. The Debentures of the ___________ Series shall bear interest as provided in the form set forth as Exhibit A hereto.

 

5. Interest on the Debentures of the ___________ Series shall be payable as provided in the form set forth as Exhibit A hereto.

 

 

1 To be inserted in the Officer’s Certificates pursuant to the Indenture, dated as of September 1, 2006, between the Company and The Bank of New York Mellon, as trustee.

 

2 To be inserted to the Officer’s Certificates pursuant to the Indenture, dated as of ___________, between the Company and The Bank of New York Mellon, as trustee.

 

 

 

 

6. Registration of the Debentures of the __________ Series, and registration of transfers and exchanges in respect of the Debentures of the __________ Series, may be effectuated at the office or agency of the Company in New York City, New York. Notices and demands to or upon the Company in respect of the Debentures of the __________ Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the Debentures of the __________ Series.

 

7. [The Debentures of the __________ Series will be redeemable at the option of the Company prior to the Stated Maturity Date as provided in the form set forth as Exhibit A hereto.][The Debentures of the __________ Series will not be redeemable at the option of the Company prior to the Stated Maturity Date.]

 

8. So long as all of the Debentures of the __________ Series are held by a securities depository in book-entry form, the Regular Record Date for the interest payable on any given Interest Payment Date with respect to the Debentures of the __________ Series shall be the close of business on the Business Day immediately preceding such Interest Payment Date; provided, however, that if any of the Debentures of the __________ Series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date.

 

9. So long as any Debentures of the __________ Series are Outstanding, the failure of the Company to pay interest, including Additional Interest (as defined in the form of the Debentures of the __________ Series set forth as Exhibit A hereto), if any, on any Debentures of the __________ Series within thirty (30) days after the same becomes due and payable (whether or not payment is prohibited by the subordination provisions of Article Fourteen and Article Fifteen of the Indenture) shall constitute an Event of Default; provided, however, that a valid deferral of the interest payments by the Company as contemplated in Section [312] of the Indenture [and paragraph 10 of this certificate] shall not constitute a failure to pay interest for this purpose.

 

10. [Provisions for deferral of the interest payments, if any, will be inserted here.]

 

11. If the Company shall make any deposit of money and/or Eligible Obligations with respect to any Debentures of the __________ Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A)       an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the Debentures of the __________ Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Debentures of the __________ Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency [accompanied by an opinion of an independent public accountant of nationally recognized standing, selected by the Trustee, showing the calculation thereof]1; or

 

-2-

 

 

(B)       an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such Debentures of the __________ Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

12. The Debentures of the __________ Series will be initially issued in global form registered in the name of Cede & Co. (as nominee for The Depository Trust Company). The Debentures of the __________ Series in global form shall bear the depository legend in substantially the form set forth as Exhibit A hereto. The Debentures of the __________ Series in global form will contain restrictions on transfer, substantially as described in the form set forth as Exhibit A hereto.

 

13. No service charge shall be made for the registration of transfer or exchange of the Debentures of the __________ Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

14. The Company reserves the right to require legends on Debentures of the __________ Series as it may determine are necessary to ensure compliance with the securities laws of the United States and the states therein and any other applicable laws.

 

15. [The Company has previously reserved the right, without any consent, vote or other action by Holders of the Debentures of the __________ Series, or of any other series of Securities issued after October 1, 2006, to amend the Indenture as follows:

 

To amend clause (6) of the second paragraph of Section 608 of the Indenture to read as follows:

 

“(6) payments under any preferred trust securities, subordinated debentures or junior subordinated debentures, or any guarantee thereof, executed and delivered by the Guarantor, the Company or any of their majority-owned subsidiaries, in each case that rank equal in right of payment to the series of Securities with respect to which the Company has elected to defer the payment of interest, or the related guarantee (as the case may be), so long as the amount of payments made on account of such securities or guarantees is paid on all such securities and guarantees then outstanding on a pro rata basis in proportion to the full payment to which each series of such securities and guarantees is then entitled if paid in full”.]1

 

16. [Notwithstanding the provisions of Section 802 of the Indenture, the principal of and accrued interest on the Debentures of the __________ Series shall not be declared immediately due and payable by reason of the occurrence and continuation of an Event of Default specified in Section 801(c) of the Indenture applicable to the Debentures of the __________ Series, and any notice of declaration of acceleration based on such Event of Default shall be null and void with respect to the Debentures of the __________ Series. The Debentures of the __________ Series will not be considered Outstanding for the purpose of determining whether the required vote described in Section 802 of the Indenture has been obtained for the declaration of acceleration by reason of the occurrence and continuation of an Event of Default specified in Section 801(c) of the Indenture applicable to the Debentures of the __________ Series.]1

 

-3-

 

 

17. Each of the Company and the Guarantor agrees, and by acceptance of the Debentures of the __________Series, each Holder will be deemed to have agreed, to treat the Debentures of the __________ Series as indebtedness for United States federal, state and local tax purposes.

 

18. The Debentures of the __________ Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

19. The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the Debentures of the __________ Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

20. The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

21. In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

22. In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the Debentures of the __________ Series requested in the accompanying Company Order No. __ and Guarantor Order No. __, have been complied with.

 

-4-

 

 

IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this ____ day of __________ in _________________________. 

 
   
   
  _____________, NextEra Energy Capital Holdings, Inc.

 

IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Guarantor this ____ day of __________ in _________________________.

 

   
   
  ____________________, NextEra Energy, Inc.

 

-5-

 

 

Exhibit A

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to NextEra Energy Capital Holdings, Inc. or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No. _______________   CUSIP No. __________

 

[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]

 

NEXTERA ENERGY CAPITAL HOLDINGS, INC.

 

________ JUNIOR SUBORDINATED DEBENTURES DUE __________, ____

 

NEXTERA ENERGY CAPITAL HOLDINGS, INC., a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company”, which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to __________, or registered assigns, the principal sum of ____________________ Dollars on __________ (the “Stated Maturity Date”). [The Company further promises (subject to deferral as set forth herein) to pay interest on the principal sum of this _______ Junior Subordinated Debenture due __________ (this “Security”) to the registered Holder hereof at the rate of ____% per annum, in like coin or currency, [quarterly][semi-annually] in arrears on the ___ day of [,__________, __________] and __________ of each year (each an “Interest Payment Date”) until the principal hereof is paid or duly provided for, such interest payments to commence on __________. Interest on the Securities of this series will accrue from and including ____________ to but excluding the first Interest Payment Date and thereafter will accrue from and including the last Interest Payment Date to which interest has either been paid or duly provided for to but excluding the next Interest Payment Date (each an “Interest Period”)]3 [(except that (i) the interest payment which is due on __________ shall include interest that has accrued from ___________, and (ii) if this Security is authenticated during the period that (A) follows any particular Regular Record Date (as defined below) but (B) precedes the next occurring Interest Payment Date, then the registered Holder hereof shall not be entitled to receive any interest payment with respect to this Security on such next occurring Interest Payment Date)].  The Company also promises to pay Additional Interest (as defined below) with respect to an Optional Deferral Period (as defined below) to the registered Holder of this Security, to the extent payment of such Additional Interest is enforceable under applicable law, on any interest payment that is not made on the applicable Interest Payment Date, as specified on the reverse of this Security. No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay) with the same force and effect as if made on the Interest Payment Date. The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the “Regular Record Date” for such interest installment which shall be the close of business on the Business Day immediately preceding such Interest Payment Date so long as all of the Securities of this series are held by a securities depository in book-entry form; provided that if any of the Securities of this series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date; and provided further that interest payable on the Stated Maturity Date or a Redemption Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

 

3 Interest payment provisions will be revised if the Securities of this series bear interest at a floating rate, or if the interest rate is reset after a period of time.

 

A - 1

 

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto. The amount of interest payable on this Security will be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full [quarterly][semi-annual] period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A - 2

 

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in New York, New York.

 

  NEXTERA ENERGY CAPITAL HOLDINGS, INC.
     
  By:               

  

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  The Bank of New York MEllon, as Trustee
     
  By:  
    Authorized Signatory

 

A - 3

 

 

[FORM OF GUARANTEE]

 

NEXTERA ENERGY, INC., a corporation organized under the laws of the State of Florida (the “Guarantor”, which term includes any successor under the Indenture (the “Indenture”) referred to in the Security upon which this Guarantee is endorsed), for value received, hereby unconditionally and irrevocably guarantees to the Holder of the Security upon which this Guarantee is endorsed, the due and punctual payment of the principal of, and premium, if any, and interest, including Additional Interest, if any, on such Security when and as the same shall become due and payable, whether on the Stated Maturity Date, by declaration of acceleration, call for redemption, or otherwise, in accordance with the terms of such Security and of the Indenture regardless of any defense, right of set-off or counterclaim that the Guarantor may have (except the defense of payment). In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity Date or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company. The Guarantor’s obligation to make a guarantee payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holder of the Security or to a Paying Agent, or by causing the Company to pay such amount to such Holder or a Paying Agent.

 

The Guarantor hereby agrees that its payment obligations hereunder shall be absolute and unconditional irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or the Indenture, any failure to enforce the provisions of such Security or the Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto (except that the Guarantor will have the benefit of any waiver, modification or indulgence granted to the Company in accordance with the Indenture), by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however, that notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon (including Additional Interest, if any), or change any redemption provisions thereof (including any change to increase any premium payable upon redemption thereof) or change the Stated Maturity Date thereof.

 

The Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or the Holder of such Security exhaust any right or take any action against the Company or any other Person, the filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged in respect of such Security except by complete performance of the payment obligations contained in such Security and in this Guarantee. This Guarantee shall constitute a guaranty of payment and not of collection. The Guarantor hereby agrees that, in the event of a default in payment of principal, or premium, if any, or interest, if any, on such Security, whether on the Stated Maturity Date, by declaration of acceleration, call for redemption, or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce this Guarantee without first proceeding against the Company.

 

The obligations of the Guarantor hereunder with respect to such Security shall be continuing and irrevocable until the date upon which the entire principal of, premium, if any, and interest, including Additional Interest, if any, on such Security has been, or has been deemed pursuant to the provisions of Article Seven of the Indenture to have been, paid in full or otherwise discharged.

 

A - 4

 

 

The obligations evidenced by this Guarantee are, to the extent provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Guarantor, and this Guarantee is issued subject to the provisions of the Indenture with respect thereto. Each Holder of a Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

 

The Guarantor shall be subrogated to all rights of the Holder of a Security upon which this Guarantee is endorsed against the Company in respect of any amounts paid by the Guarantor on account of such Security pursuant to the provisions of this Guarantee or the Indenture; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of, and premium, if any, and interest, if any, on all Securities issued under the Indenture which are then due and payable shall have been paid in full.

 

This Guarantee shall remain in full force and effect and continue notwithstanding any petition filed by or against the Company for liquidation or reorganization, the Company becoming insolvent or making an assignment for the benefit of creditors or a receiver or trustee being appointed for all or any significant part of the Company’s property and assets, and shall, to the fullest extent permitted by law, continue to be effective or reinstated, as the case may be, if at any time payment of the Security upon which this Guarantee is endorsed, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by the Holder of such Security, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance had not been made. In the event that any such payment, or any part thereof, is rescinded, reduced, restored or returned on such Security, such Security shall, to the fullest extent permitted by law, be reinstated and deemed paid only by such amount paid and not so rescinded, reduced, restored or returned.

 

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of the Security upon which this Guarantee is endorsed shall have been manually executed by or on behalf of the Trustee under the Indenture.

 

All terms used in this Guarantee which are defined in the Indenture shall have the meanings assigned to them in such Indenture.

 

This Guarantee shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of law principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.

 

IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed in New York, New York.

 

 

NEXTERA ENERGY, INC.

     
  By:           

 

A - 5

 

 

[FORM OF REVERSE OF _______ JUNIOR SUBORDINATED DEBENTURE

DUE ________________]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Subordinated Debt Securities), dated as of [September 1, 2006][___________, ____] (herein, together with any amendments thereto, called the “Indenture,” which term shall have the meaning assigned to it in such instrument), among the Company, NextEra Energy, Inc. and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on __________ creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

[Redemption provisions, if any, will be inserted here.]

 

The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture; [provided, however, that the principal of and interest on the Securities of this series cannot be declared due and payable by reason of the occurrence and continuation of an Event of Default specified in Section 801(c) of the Indenture]2 [; provided however, that the principal of and interest on the Securities of this series shall not be declared due and payable by reason of the occurrence and continuation of an Event of Default specified in Section 801(c) of the Indenture applicable to the Securities of this series, and any notice of declaration of acceleration based on such Event of Default shall be null and void with respect to the Securities of this series. The Securities of this series will not be considered Outstanding for the purpose of determining whether the required vote described in Section 802 of the Indenture has been obtained for the declaration of acceleration by reason of the occurrence and continuation of an Event of Default specified in Section 801(c) of the Indenture applicable to the Securities of this series.]1

 

A - 6

 

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

[Provisions for deferral of the interest payments, if any, will be inserted here.]

 

The Securities of this series are issuable only in registered form without coupons in denominations of [$____ and integral multiples of $____ in excess thereof][$____ and integral multiples thereof]. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

Each of the Company and the Guarantor has agreed, and by acceptance of this Security, the Holder will be deemed to have agreed, to treat this Security as indebtedness for United States federal, state and local tax purposes.

 

A - 7

 

 

Exhibit 4(bs)

 

Florida Power & Light Company

 

OFFICER’S CERTIFICATE

 

Creating the __________ Notes, Series due __________

 

__________, __________ of Florida Power & Light Company (the “Company”), pursuant to the authority granted in the accompanying Board Resolutions (all capitalized terms used herein which are not defined herein or in Exhibit A hereto, but which are defined in the Indenture referred to below, shall have the meanings specified in the Indenture), and pursuant to Sections 201 and 301 of the Indenture, does hereby certify to The Bank of New York Mellon (the “Trustee”), as Trustee under the Indenture (For Unsecured Debt Securities) dated as of [November 1, 2017][ __________] between the Company and the Trustee (the “Indenture”), that:

 

1.     The securities to be issued under the Indenture in accordance with this certificate shall be designated “__________ Notes, Series due __________” (referred to herein as the “Notes of the __________ Series”) and shall be issued in substantially the form set forth as Exhibit A hereto.

 

2.     The Notes of the __________ Series shall be issued by the Company in the initial aggregate principal amount of $__________. Additional Notes of the __________ Series, without limitation as to amount, having the same terms as the Outstanding Notes of the __________ Series (except for the issue date of the additional Notes of the _____ Series and, if applicable, the initial Interest Payment Date (as defined below)) may also be issued by the Company pursuant to the Indenture without the consent of the Holders of the then-Outstanding Notes of the __________ Series. Any such additional Notes of the __________ Series as may be issued pursuant to the Indenture from time to time shall be part of the same series as the then-Outstanding Notes of the __________ Series.

 

3.     The Notes of the __________ Series shall mature and the principal shall be due and payable, together with all accrued and unpaid interest thereon, on the Stated Maturity Date. The “Stated Maturity Date” means __________.

 

4.     The Notes of the __________ Series shall bear interest as provided in the form set forth as Exhibit A hereto.

 

5.     Each installment of interest on a Note of the __________ Series shall be payable as provided in the form set forth as Exhibit A hereto.

 

6.     Registration of the Notes of the __________ Series, and registration of transfers and exchanges in respect of the Notes of the __________ Series, may be effectuated at the office or agency of the Company in New York City, New York. Notices and demands to or upon the Company in respect of the Notes of the __________ Series may be served at the office or agency of the Company in New York City, New York. The Corporate Trust Office of the Trustee will initially be the agency of the Company for such payment, registration, registration of transfers and exchanges and service of notices and demands, and the Company hereby appoints the Trustee as its agent for all such purposes; provided, however, that the Company reserves the right to change, by one or more Officer’s Certificates, any such office or agency and such agent. The Trustee will initially be the Security Registrar and the Paying Agent for the Notes of the __________ Series.

 

7.     [The Notes of the __________ Series will be redeemable at the option of the Company prior to the Stated Maturity Date as provided in the form set forth as Exhibit A hereto.] [The Notes of the __________ Series will not be redeemable at the option of the Company prior to the Stated Maturity Date.]

 

 

 

 

8.     So long as all of the Notes of the __________ Series are held by a securities depository in book-entry form, the Regular Record Date for the interest payable on any given Interest Payment Date with respect to the Notes of the __________ Series shall be the close of business on the Business Day immediately preceding such Interest Payment Date; provided, however, that if any of the Notes of the __________ Series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date.

 

9.     If the Company shall make any deposit of money and/or Eligible Obligations with respect to any Notes of the __________ Series, or any portion of the principal amount thereof, as contemplated by Section 701 of the Indenture, the Company shall not deliver an Officer’s Certificate described in clause (z) in the first paragraph of said Section 701 unless the Company shall also deliver to the Trustee, together with such Officer’s Certificate, either:

 

(A) an instrument wherein the Company, notwithstanding the satisfaction and discharge of its indebtedness in respect of the Notes of the __________ Series, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee or Paying Agent such additional sums of money, if any, or additional Eligible Obligations (meeting the requirements of said Section 701), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or Eligible Obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Notes of the __________ Series or portions thereof, all in accordance with and subject to the provisions of said Section 701; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency; or

 

(B) an Opinion of Counsel to the effect that, as a result of (i) the receipt by the Company from, or the publication by, the Internal Revenue Service of a ruling or (ii) a change in law occurring after the date of this certificate, the Holders of such Notes of the __________ Series, or the applicable portion of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effectuated.

 

10. The Notes of the __________ Series will be initially issued in global form registered in the name of Cede & Co. (as nominee for The Depository Trust Company). The Notes of the __________ Series in global form shall bear the depository legend in substantially the form set forth as Exhibit A hereto. The Notes of the __________ Series in global form will contain restrictions on transfer, substantially as described in the form set forth as Exhibit A hereto.

 

11. No service charge shall be made for the registration of transfer or exchange of the Notes of the __________ Series; provided, however, that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with such transfer or exchange.

 

12. [The Eligible Obligations with respect to the Notes of the __________ Series shall be the Government Obligations and the Investment Securities.]

 

-2-

 

 

13. The Notes of the __________ Series shall have such other terms and provisions as are provided in the form set forth as Exhibit A hereto.

 

14. The undersigned has read all of the covenants and conditions contained in the Indenture relating to the issuance of the Notes of the __________ Series and the definitions in the Indenture relating thereto and in respect of which this certificate is made.

 

15. The statements contained in this certificate are based upon the familiarity of the undersigned with the Indenture, the documents accompanying this certificate, and upon discussions by the undersigned with officers and employees of the Company familiar with the matters set forth herein.

 

16. In the opinion of the undersigned, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenants and conditions have been complied with.

 

17. In the opinion of the undersigned, such conditions and covenants and conditions precedent, if any (including any covenants compliance with which constitutes a condition precedent), to the authentication and delivery of the Notes of the __________ Series requested in the accompanying Company Order No. __ have been complied with.

 

-3-

 

 

IN WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the Company this ____ day of __________ in ___________________________.

 

   

 

 

 

  

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a limited purpose company organized under the New York Banking Law (“DTC”), to Florida Power & Light Company or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

 

No. _______________ CUSIP No. __________

 

[FORM OF FACE OF NOTE]

 

Florida Power & Light Company

 

____ NOTES, SERIES DUE __________________

 

Florida Power & Light Company, a corporation duly organized and existing under the laws of the State of Florida (herein referred to as the “Company,” which term includes any successor Person under the Indenture (as defined below)), for value received, hereby promises to pay to __________, or registered assigns, the principal sum of __________ Dollars on __________ (the “Stated Maturity Date”). [The Company further promises to pay interest on the principal sum of this __________ Note, Series due __________ (this “Security”) to the registered Holder hereof at the rate of ____% per annum, in like coin or currency, [semi-annually] [quarterly] on __________[, __________, _________] and __________ of each year (each an “Interest Payment Date”) until the principal hereof is paid or duly provided for, such interest payments to commence on __________. Interest on the Securities of this series will accrue from and including _____________ to but excluding the first Interest Payment Date and thereafter will accrue from and including the last Interest Payment Date to which interest has either been paid or duly provided for to but excluding the next Interest Payment Date. No interest will accrue on the Securities of this series with respect to the day on which the Securities of this series mature. In the event that an Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay) with the same force and effect as if made on the Interest Payment Date.]1 The interest so payable, and punctually paid or duly provided for, on an Interest Payment Date will, as provided in the Indenture referred to on the reverse of this Security (the “Indenture”), be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the “Regular Record Date” for such interest installment which shall be the close of business on the Business Day immediately preceding such Interest Payment Date so long as all of the Securities of this series are held by a securities depository in book-entry form; provided that if any of the Securities of this series are not held by a securities depository in book-entry form, the Regular Record Date will be the close of business on the fifteenth (15th) calendar day immediately preceding such Interest Payment Date; and provided further that interest payable on the Stated Maturity Date or a Redemption Date will be paid to the same Person to whom the associated principal is to be paid. Any such interest not punctually paid or duly provided for will forthwith cease to be payable to the Person who is the Holder of this Security on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice of which shall be given to Holders of Securities of this series not less than ten (10) days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

 

1 Interest payment provisions will be revised if the Securities of this series bear interest at a floating rate, or if the interest rate is reset after a period of time.

 

 

 

 

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York City, the State of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, interest on this Security may be paid by check mailed to the address of the Person entitled thereto, as such address shall appear on the Security Register or by a wire transfer to an account designated by the Person entitled thereto. The amount of interest payable on this Security will be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full [semi-annual][quarterly] period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).

 

Reference is hereby made to the further provisions of this Security set forth on the reverse of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. (All capitalized terms used in this Security which are not defined herein, including the reverse of this Security, but which are defined in the Indenture or in the Officer’s Certificate, shall have the meanings specified in the Indenture or in the Officer’s Certificate.)

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse of this Security by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A - 2

 

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed in __________________________.

 

  Florida Power & Light Company
     
  By:                

 

[FORM OF CERTIFICATE OF AUTHENTICATION]

 

CERTIFICATE OF AUTHENTICATION

 

Dated:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

  The Bank of New York MEllon, as Trustee
     
  By:   
    Authorized Signatory

  

A - 3

 

 

[FORM OF REVERSE OF NOTE]

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture (For Unsecured Debt Securities), dated as of __________ (herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), between the Company and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture, including the Board Resolutions and Officer’s Certificate filed with the Trustee on __________, creating the series designated on the face hereof (herein called the “Officer’s Certificate”), for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

 

[Provisions for redemption at the option of the Company, if any, will be inserted here.]

 

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security upon compliance with certain conditions set forth in the Indenture, including the Officer’s Certificate described above.

 

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of and interest on the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected by such amendment to the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be thus affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by Holders of the specified percentages in principal amount of the Securities of this series shall be conclusive and binding upon all current and future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities of all series at the time Outstanding in respect of which an Event of Default shall have occurred and be continuing a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

A - 4

 

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

The Securities of this series are issuable only in registered form without coupons in denominations of [$____ and integral multiples thereof] [$____ and integral multiples of $____ in excess thereof]. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor and of authorized denominations, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

A - 5

 

 

Exhibit 4(ca)

 

 

 

NEXTERA ENERGY, INC.

 

AND

 

THE BANK OF NEW YORK MELLON,
as Purchase Contract Agent

 

 

 

PURCHASE CONTRACT AGREEMENT

 

 

 

DATED AS OF ________________

 

 

 

 

 

TIE SHEET

 

Section of   Section of
Trust Indenture Act   Purchase Contract
of 1939, as amended   Agreement
     
310(a)   7.8
310(b)   7.9(d) and (g), 11.7
311(a)   11.2(b)
311(b)   11.2(b)
312(a)   11.2(a)
312(b)   11.2(b)
313   11.3
314(a)   11.4
314(b)   Inapplicable
314(c)   11.5
314(d)   Inapplicable
314(e)   1.2
314(f)   11.1
315(a)   7.1(a)
315(b)   7.2
315(c)   7.1(e)
315(d)(1)   7.1(b)
315(d)(2)   7.1(b)
315(d)(3)   11.8
315(e)   6.5
316(a)(1)(A)   11.8
316(a)(1)(B)   11.6
316(b)   6.1
316(c)   11.2
317(a)   Inapplicable
317(b)   Inapplicable
318(a)   11.1(b)

 

 

* This Cross-Reference Table does not constitute part of the Purchase Contract Agreement and shall not affect the interpretation of any of its terms or provisions.

 

 

 

TABLE OF CONTENTS

 

    Page

ARTICLE I

 

Definitions and Other Provisions
of General Application

SECTION 1.1.          Definitions   1
SECTION 1.2.          Compliance Certificates and Opinions   15
SECTION 1.3.          Form of Documents Delivered to Purchase Contract Agent   15
SECTION 1.4.          Acts of Holders; Record Dates   16
SECTION 1.5.          Notices   17
SECTION 1.6.          Notice to Holders; Waiver   18
SECTION 1.7.          Effect of Headings and Table of Contents   19
SECTION 1.8.          Successors and Assigns   19
SECTION 1.9.          Separability Clause   19
SECTION 1.10.        Benefits of Agreement   19
SECTION 1.11.        Governing Law   19
SECTION 1.12.        Legal Holidays   19
SECTION 1.13.        Counterparts   20
SECTION 1.14.        Inspection of Agreement   20
SECTION 1.15.        Force Majeure.   20
SECTION 1.16.        Waiver of Jury Trial.   20

ARTICLE II

 

Certificate Forms

SECTION 2.1.          Forms of Certificates Generally   21
SECTION 2.2.          Form of Purchase Contract Agent’s Certificate of Authentication   21

ARTICLE III

 

The Units

SECTION 3.1.          Title and Terms; Denominations   21
SECTION 3.2.          Rights and Obligations Evidenced by the Certificates   22
SECTION 3.3.          Execution, Authentication, Delivery and Dating   22
SECTION 3.4.          Temporary Certificates   23
SECTION 3.5.          Registration; Registration of Transfer and Exchange   24
SECTION 3.6.          Book-Entry Interests   25
SECTION 3.7.          Notices to Holders   26
SECTION 3.8.          Appointment of Successor Clearing Agency   26
SECTION 3.9.          Definitive Certificates   26

 

 

 

    Page
     
SECTION 3.10.        Mutilated, Destroyed, Lost and Stolen Certificates   26
SECTION 3.11.        Persons Deemed Owners   28
SECTION 3.12.        Cancellation   28
SECTION 3.13.        Creation or Recreation of Treasury Units by Substitution of Treasury Securities   29
SECTION 3.14.        Recreation of Corporate Units   31
SECTION 3.15.        Transfer of Collateral upon Occurrence of Termination Event   34
SECTION 3.16.        No Consent to Assumption   34

ARTICLE IV

 

The Debentures

SECTION 4.1.          Payment of Interest; Rights to Interest Preserved; Interest Rate Reset; Notice   34
SECTION 4.2.          Notice and Voting   36
SECTION 4.3.          Substitution of the Treasury Portfolio for the Debentures   36
SECTION 4.4.          Consent to Treatment for Tax Purposes   37

ARTICLE V

 

The Purchase Contracts

SECTION 5.1.          Purchase of Shares of Common Stock   37
SECTION 5.2.          Contract Adjustment Payments   39
SECTION 5.3.          Deferral of Payment Dates for Contract Adjustment Payments   41
SECTION 5.4.          Payment of Purchase Price   43
SECTION 5.5.          Issuance of Shares of Common Stock   48
SECTION 5.6.          Adjustment of Fixed Settlement Rate; Fundamental Change Early Settlement   48
SECTION 5.7.          Notice of Adjustments and Certain Other Events   58
SECTION 5.8.          Termination Event; Notice   59
SECTION 5.9.          Early Settlement   60
SECTION 5.10.        No Fractional Shares   62
SECTION 5.11.        Charges and Taxes   62

ARTICLE VI

 

Remedies

SECTION 6.1.          Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase Shares of Common Stock   62
SECTION 6.2.          Restoration of Rights and Remedies   63
SECTION 6.3.          Rights and Remedies Cumulative   63
SECTION 6.4.          Delay or Omission Not Waiver   63
SECTION 6.5.          Undertaking for Costs   63
SECTION 6.6.          Waiver of Stay or Extension Laws   64

 

ii

 

 

    Page

ARTICLE VII

 

The Purchase Contract Agent

SECTION 7.1.          Certain Duties and Responsibilities   64
SECTION 7.2.          Notice of Default   65
SECTION 7.3.          Certain Rights of Purchase Contract Agent   65
SECTION 7.4.          Not Responsible for Recitals or Issuance of Units   67
SECTION 7.5.          May Hold Units   67
SECTION 7.6.          Money Held in Custody   67
SECTION 7.7.          Compensation and Reimbursement   67
SECTION 7.8.          Corporate Purchase Contract Agent Required; Eligibility   68
SECTION 7.9.          Resignation and Removal; Appointment of Successor   68
SECTION 7.10.        Acceptance of Appointment by Successor   70
SECTION 7.11.        Merger, Conversion, Consolidation or Succession to Business   70
SECTION 7.12.        Preservation of Information; Communications to Holders   71
SECTION 7.13.        No Obligations of Purchase Contract Agent   71
SECTION 7.14.        Tax Compliance   71

ARTICLE VIII

 

Supplemental Agreements

SECTION 8.1.          Supplemental Agreements Without Consent of Holders   72
SECTION 8.2.          Supplemental Agreements with Consent of Holders   73
SECTION 8.3.          Execution of Supplemental Agreements   74
SECTION 8.4.          Effect of Supplemental Agreements   74
SECTION 8.5.          Reference to Supplemental Agreements   74

 

ARTICLE IX

 

Consolidation, Merger, Sale, Conveyance, Transfer or Lease

 
SECTION 9.1.          Covenant Not to Consolidate, Merge, Sell, Convey, Transfer or Lease Property Except Under Certain Conditions   75
SECTION 9.2.          Rights and Duties of Successor Entity   75
SECTION 9.3.          Company Certificate and Opinion of Counsel Given to Purchase Contract Agent   76

ARTICLE X

 

Covenants

SECTION 10.1.        Performance Under Purchase Contracts   76
SECTION 10.2.        Maintenance of Office or Agency   76
SECTION 10.3.        Company to Reserve Common Stock   77
SECTION 10.4.        Covenants as to Common Stock   77

 

iii

 

 

    Page
SECTION 10.5.        Covenants of Holders as to ERISA   77

ARTICLE XI

 

Trust Indenture Act

SECTION 11.1.        Trust Indenture Act; Application   78
SECTION 11.2.        Lists of Holders of Units   78
SECTION 11.3.        Reports by the Purchase Contract Agent   78
SECTION 11.4.        Periodic Reports to Purchase Contract Agent   79
SECTION 11.5.        Evidence of Compliance with Conditions Precedent   79
SECTION 11.6.        Defaults; Waiver   79
SECTION 11.7.        Conflicting Interests   79
SECTION 11.8.        Direction of Purchase Contract Agent   79

 

EXHIBIT A Form of Corporate Unit Certificate
EXHIBIT B Form of Treasury Unit Certificate
EXHIBIT C Notice to Settle by Separate Cash

 

iv

 

 

PURCHASE CONTRACT AGREEMENT, dated as of ________________, between NextEra Energy, Inc., a Florida corporation (the “Company”), and The Bank of New York Mellon, a New York banking corporation, acting as purchase contract agent and attorney-in-fact for the Holders of Units from time to time (in any one or more of such capacities, the “Purchase Contract Agent”).

 

RECITALS

 

The Company has duly authorized the execution and delivery of this Agreement and the Certificates evidencing the Units.

 

All things necessary to make the Purchase Contracts, when the Certificates are executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract Agent, as provided in this Agreement, the valid obligations of the Company and the Holders, and to constitute these presents a valid agreement of the Company, in accordance with its terms, have been done.

 

WITNESSETH:

 

For and in consideration of the premises and the purchase of the Units by the Holders thereof, it is mutually agreed as follows:

 

ARTICLE I

Definitions and Other Provisions
of General Application

 

SECTION 1.1.          Definitions.

 

For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)           the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular, and nouns and pronouns of the masculine gender include the feminine and neuter genders;

 

(b)           all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States;

 

(c)           the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Exhibit or other subdivision; and

 

(d)           the following terms have the meanings given to them in this Section 1.1(d).

 

“Act” when used with respect to any Holder, has the meaning specified in Section 1.4.

 

“Adjustment Factor” has the meaning specified in Section 5.6(a)(9).

 

 

 

“Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act.

 

“Agreement” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.

 

“Applicable Market Value” has the meaning specified in Section 5.1.

 

“Applicable Ownership Interest in Debentures” means a 5% undivided beneficial ownership interest in $1,000 principal amount of Debentures that is a component of a Corporate Unit, and “Applicable Ownership Interests in Debentures” means the aggregate of each Applicable Ownership Interest in Debentures that are components of all Corporate Units then Outstanding.

 

“Applicable Ownership Interest in the Treasury Portfolio” means, with respect to each Corporate Unit and the U.S. Treasury securities in a Treasury Portfolio,

 

(i)         a 5% undivided beneficial ownership interest in $1,000 face amount of U.S. Treasury securities (or principal or interest strips thereof) included in the applicable Treasury Portfolio that matures on or prior to ________________, and

 

(ii)        with respect to each scheduled Payment Date on the Debentures that occurs after the Special Event Redemption Date, the Mandatory Redemption Date or the Reset Effective Date in the case of a Successful Early Remarketing, as the case may be, and on or prior to the Purchase Contract Settlement Date, an undivided beneficial ownership interest in $1,000 face amount of U.S. Treasury securities (or principal or interest strips thereof) included in such Treasury Portfolio that mature on or prior to such scheduled Payment Date in an aggregate amount equal to the aggregate interest payment that would be due with respect to a 5% beneficial ownership interest in a Debenture in the principal amount of $1,000 that would have been components of the Corporate Units on such scheduled Payment Date (assuming no Special Event Redemption, no Mandatory Event Redemption and no Successful Early Remarketing), accruing as follows: (i) in the case of a Special Redemption or Mandatory Redemption, from and including the immediately preceding Payment Date to which interest on the Debentures has been paid, and (ii) in the case of a Successful Early Remarketing, from and including the Reset Effective Date.

 

If U.S. Treasury securities (or principal or interest strips thereof) that are to be included in the Remarketing Treasury Portfolio in connection with a Successful Remarketing during the Period for the Early Remarketing have a yield that is less than zero on the applicable Remarketing Date, then, at NEE Capital’s option, the Remarketing Treasury Portfolio will consist of an amount in cash equal to the aggregate principal amount at maturity of the U.S. Treasury securities described in clauses (i) and (ii) above. If the provisions set forth in this paragraph apply, for all purposes herein, references to “U.S. Treasury securities (or principal or interest strips thereof)” in connection with the Remarketing Treasury Portfolio will be deemed to be references to such aggregate amount of cash, and any reference to clause (i) or (ii) in the definition of “Applicable Ownership Interest in the Treasury Portfolio” shall be deemed to be a reference to the portion of such aggregate cash amount equal to the aggregate principal amount at maturity of the undivided beneficial ownership interest in the U.S. Treasury securities described in clause (i) above or clause (ii) above, respectively

 

2

 

 

“Applicable Ownership Interests in the Treasury Portfolio” means the aggregate of each Applicable Ownership Interest in the Treasury Portfolio that are components of all Corporate Units then Outstanding.

 

“Applicants” has the meaning specified in Section 7.12(b).

 

“Authorized Officer” means (i) the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, and any Assistant Secretary or (ii) any other officer or agent of the Company duly authorized by the Board of Directors to act in respect of matters relating to this Agreement.

 

“Bankruptcy Code” means Title 11 of the United States Code, or any other law of the United States that from time to time provides a uniform system of bankruptcy laws.

 

“Beneficial Owner” means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest as reflected on the books of the Clearing Agency or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).

 

“Board of Directors” means the board of directors of the Company or a duly authorized committee of that board.

 

“Board Resolution” means one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Purchase Contract Agent.

 

“Book-Entry Interest” means a beneficial interest in a Global Certificate, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency as described in Section 3.6.

 

“Business Day” means any day other than a Saturday, Sunday or any other day on which banking institutions and trust companies in New York City (in the State of New York) are permitted or required by any applicable law, regulation or executive order to close; provided, that for purposes of the second paragraph of Section 1.12 only, the term “Business Day” shall also be deemed to exclude any day on which the Depositary is closed.

 

“Cash Settlement” has the meaning specified in Section 5.4(a)(i).

 

“Certificate” means a Corporate Unit Certificate or a Treasury Unit Certificate, as the case may be.

 

3

 

 

“Clearing Agency” means an organization registered as a “Clearing Agency” pursuant to Section 17A of the Exchange Act that is acting as a depositary for the Units and in whose name, or in the name of a nominee of that organization, shall be registered as a Global Certificate and which shall undertake to effect book-entry transfers and pledges of the Units.

 

“Clearing Agency Participant” means a securities broker or dealer, bank, trust company, clearing corporation, other financial institution or other Person for whom from time to time the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.

 

“Closing Price” has the meaning specified in Section 5.1.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Collateral” has the meaning specified in Article I of the Pledge Agreement.

 

“Collateral Agent” means __________, as Collateral Agent under the Pledge Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of the Pledge Agreement, and thereafter “Collateral Agent” shall mean the Person who is then the Collateral Agent thereunder.

 

“Collateral Substitution” means the substitution of the pledged components of one type of Unit for pledged components of the other type of Unit (i.e., either Corporate Unit or Treasury Unit) in connection with the creation or recreation of Treasury Units or Corporate Units, as described in Section 3.13 and Section 3.14.

 

“Common Stock” means the Common Stock, par value $0.01 per share, of the Company.1

 

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Company” shall mean such successor.

 

“Company Certificate” means a certificate signed by an Authorized Officer and delivered to the Purchase Contract Agent.

 

“Constituent Person” has the meaning specified in Section 5.6(b)(i).

 

“Contract Adjustment Payments” means the amounts payable by the Company in respect of each Purchase Contract issued in connection with the Corporate Units and the Treasury Units, which amounts shall be equal to ______% per annum of the Stated Amount (computed on the basis of a 360-day year consisting of twelve 30-day months (with the amount payable for any period shorter than a full quarterly period computed on the basis of the number of days in such period using 30-day calendar months)), plus any Deferred Contract Adjustment Payments accrued pursuant to Section 5.3.

 

 

1 To be revised if preferred stock or depositary shares are to be issued upon settlement of Purchase Contracts.

 

4

 

 

“Corporate Trust Office” means the corporate trust office of the Purchase Contract Agent at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at __________, __________, __________, __________ __________, Attention: __________, or such other address as the Purchase Contract Agent may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Purchase Contract Agent (or such other address as such successor Purchase Contract Agent may designate from time to time by notice to the Holders and the Company).

 

“Corporate Unit” means the collective rights and obligations of a Holder of a Corporate Unit Certificate in respect of the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, subject in each case to the Pledge thereof (except that the Applicable Ownership Interest in the Treasury Portfolio as specified in clause (ii) of the definition of such term shall not be subject to the Pledge), and the related Purchase Contract.

 

“Corporate Unit Certificate” means a certificate evidencing the rights and obligations of a Holder in respect of the number of Corporate Units specified on such certificate.

 

“Coupon Rate” with respect to a Debenture means the percentage rate per annum at which such Debenture will bear interest.

 

“Current Market Price” has the meaning specified in Section 5.6(a)(8).

 

“Debentures” means the series of debentures of NEE Capital designated “Series __ Debentures due ________________” to be issued under the Indenture.

 

“Default” means a default by the Company in any of its obligations under this Agreement.

 

“Deferral Period” has the meaning specified in Section 5.3

 

“Deferred Contract Adjustment Payments” has the meaning specified in Section 5.3.

 

“Depositary” means, initially, The Depository Trust Company until another Clearing Agency becomes its successor.

 

“Early Settlement” has the meaning specified in Section 5.9(a).

 

“Early Settlement Amount” has the meaning specified in Section 5.9(a).

 

“Early Settlement Date” has the meaning specified in Section 5.9(a).

 

“Effective Date” has the meaning specified in Section 5.6(b)(ii).

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

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“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder.

 

“Exchange Property Unit” has the meaning specified in Section 5.6(b)(i).

 

“Expiration Date” has the meaning specified in Section 1.4.

 

“Expiration Time” has the meaning specified in Section 5.6(a)(6).

 

“Failed Remarketing” has the meaning specified in the Officer’s Certificate.

 

“Fair Market Value” means

 

(i)        in the case of any Spin-Off that is effected simultaneously with an Initial Public Offering of the securities being distributed in the Spin-Off, the initial public offering price of those securities, and

 

(ii)       in the case of any other Spin-Off, the average of the Closing Prices of the securities being distributed in the Spin-Off over the first ten Trading Days after the effective date of such Spin-Off.

 

“Final Three-Day Remarketing Period” has the meaning specified in the Officer’s Certificate.

 

“Fixed Settlement Rate” means each of the Minimum Settlement Rate and the Maximum Settlement Rate.

 

“Fundamental Change” means

 

(i)        a “person” or “group” within the meaning of Section 13(d) of the Exchange Act has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of Common Stock representing more than 50% of the voting power of the Common Stock; or

 

(ii)        the Company is involved in a consolidation with or merger into any other person, or any merger of another person into the Company, or any transaction or series of related transactions (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Common Stock), in each case in which 10% or more of the total consideration paid to the Company’s shareholders consists of cash or cash equivalents.

 

“Fundamental Change Early Settlement” has the meaning specified in Section 5.6(b)(ii).

 

“Fundamental Change Early Settlement Date” has the meaning specified in Section 5.6(b)(ii).

 

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“Global Certificate” means a Certificate that evidences all or part of the Units and is registered in the name of the Depositary or a nominee thereof.

 

“Guarantee Agreement” means the Guarantee Agreement dated as of June 1, 1999, between the Company and The Bank of New York Mellon, as guarantee trustee, as originally executed and delivered and as it may from time to time be supplemented or amended.

 

“Holder,” when used with respect to a Unit, means the Person in whose name a Corporate Unit Certificate and/or a Treasury Unit Certificate evidencing the Unit is registered on the Security Register.

 

“Indenture” means the Indenture (For Unsecured Debt Securities), dated as of June 1, 1999, between NEE Capital and the Indenture Trustee, as amended, pursuant to which the Debentures are to be issued, as originally executed and delivered and as it may from time to time be supplemented or amended by one or more indentures supplemental thereto entered into pursuant to the applicable provisions thereof and shall include the terms of a particular series of securities established as contemplated by Section 301 thereof.

 

“Indenture Trustee” means The Bank of New York Mellon, as trustee under the Indenture, or any successor thereto.

 

“Initial Public Offering” means the first time securities of the same class or type as the securities being distributed in a Spin-Off are offered to the public for cash.

 

“Issuer Order” or “Issuer Request” means a written order or request signed in the name of the Company by an Authorized Officer and delivered to the Purchase Contract Agent.

 

“Make-Whole Share Amount” has the meaning specified in Section 5.6(b)(ii).

 

“Mandatory Redemption” has the meaning specified in the Officer’s Certificate.

 

“Mandatory Redemption Date” means the date on which a Mandatory Redemption is to occur.

 

“Maximum Settlement Rate” has the meaning specified in Section 5.1(c).

 

“Minimum Settlement Rate” has the meaning specified in Section 5.1(a).

 

“Minimum Stock Price” has the meaning specified in Section 5.6(b).

 

“NEE Capital” means NextEra Energy Capital Holdings, Inc., a Florida corporation and a wholly-owned subsidiary of the Company, or any successor under the Indenture.

 

“NYSE” has the meaning specified in Section 5.1.

 

“Observation Period” means the 20 consecutive Trading Days ending on the third Trading Day immediately preceding the Purchase Contract Settlement Date.

 

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“Officer’s Certificate” means a certificate signed by an authorized signatory of NEE Capital establishing the terms of the Debentures pursuant to the Indenture.

 

“Opinion of Counsel” means an opinion in writing signed by legal counsel to the Company, who may be an employee of or counsel to the Company or an Affiliate and who shall be reasonably acceptable to the Purchase Contract Agent.

 

“Outstanding,” with respect to any Corporate Units and Treasury Units means, as of any date of determination, all Corporate Units and Treasury Units evidenced by Certificates theretofore authenticated, executed and delivered under this Agreement, except:

 

(i)         if a Termination Event has occurred, (A) Treasury Units for which Treasury Securities have been deposited with the Purchase Contract Agent in trust for the Holders of such Treasury Units and (B) Corporate Units for which the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio (or as contemplated in Section 3.15 hereto with respect to a Holder’s interest in the Treasury Portfolio or any Treasury Securities, cash) theretofore has been deposited with the Purchase Contract Agent in trust for the Holders of such Corporate Units;

 

(ii)        Corporate Units and Treasury Units evidenced by Certificates theretofore cancelled by the Purchase Contract Agent or delivered to the Purchase Contract Agent for cancellation or deemed cancelled pursuant to the provisions of this Agreement; and

 

(iii)      Corporate Units and Treasury Units evidenced by Certificates in exchange for or in lieu of which other Certificates have been authenticated, executed on behalf of the Holder and delivered pursuant to this Agreement, other than any such Certificate in respect of which there shall have been presented to the Purchase Contract Agent proof satisfactory to it that such Certificate is held by a protected purchaser in whose hands the Corporate Units or Treasury Units evidenced by such Certificate are valid obligations of the Company;

 

provided, however, that in determining whether the Holders of the requisite number of the Corporate Units or Treasury Units have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Corporate Units or Treasury Units owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Purchase Contract Agent shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Corporate Units or Treasury Units which a Responsible Officer of the Purchase Contract Agent actually knows to be so owned shall be so disregarded. Corporate Units or Treasury Units so owned which have been pledged in good faith may be regarded as Outstanding Units if the pledgee establishes to the satisfaction of the Purchase Contract Agent the pledgee’s right so to act with respect to such Corporate Units or Treasury Units and that the pledgee is not the Company or any Affiliate of the Company.

 

“Payment Date” means each __________, __________, __________ and __________ of each year, commencing ________________.

 

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“Period for Early Remarketing” means the period beginning on and including the fifth Business Day prior to ________________ and ending on and including the ninth Business Day prior to ________________.

 

“Permitted Investments” has the meaning specified in Article I of the Pledge Agreement.

 

“Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature.

 

“Plan” means employee benefit plans (as defined in Section 3(3) of ERISA) subject to Title I of ERISA, plans described in Section 4975(e)(1) of the Code, including individual retirement accounts or Keogh plans, entities whose underlying assets include plan assets by reason of a plan’s investment in such entities or governmental plans and certain church plans (each as defined under ERISA) that are not subject to the provisions of Title I of ERISA or Section 4975 of the Code but are subject to Similar Law.

 

“Pledge” means the lien and security interest in the Collateral created by the Pledge Agreement.

 

“Pledge Agreement” means the Pledge Agreement, dated as of the date hereof, between the Company, the Purchase Contract Agent, as purchase contract agent and as attorney-in-fact for the Holders from time to time of Units, and the Collateral Agent, as collateral agent, custodial agent and securities intermediary.

 

“Pledged Applicable Ownership Interests in Debentures” has the meaning specified in Article I of the Pledge Agreement.

 

“Pledged Applicable Ownership Interests in the Treasury Portfolio” has the meaning specified in Article I of the Pledge Agreement.

 

“Pledged Treasury Securities” has the meaning specified in Article I of the Pledge Agreement.

 

“Predecessor Certificate” means a Predecessor Corporate Unit Certificate or a Predecessor Treasury Unit Certificate.

 

“Predecessor Corporate Unit Certificate” of any particular Corporate Unit Certificate means every previous Corporate Unit Certificate evidencing all or a portion of the rights and obligations of the Company and the Holder under the Corporate Unit evidenced thereby; and, for the purposes of this definition, any Corporate Unit Certificate authenticated and delivered under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Corporate Unit Certificate shall be deemed to evidence the same rights and obligations of the Company and the Holder as the mutilated, destroyed, lost or stolen Corporate Unit Certificate.

 

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“Predecessor Treasury Unit Certificate” of any particular Treasury Unit Certificate means every previous Treasury Unit Certificate evidencing all or a portion of the rights and obligations of the Company and the Holder under the Treasury Units evidenced thereby; and, for the purposes of this definition, any Treasury Unit Certificate authenticated and delivered under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury Unit Certificate shall be deemed to evidence the same rights and obligations of the Company and the Holder as the mutilated, destroyed, lost or stolen Treasury Unit Certificate.

 

“Proceeds” has the meaning specified in Article I of the Pledge Agreement.

 

“Prospectus” means the prospectus relating to the delivery of any securities in connection with an Early Settlement pursuant to Section 5.9 or a Fundamental Change Early Settlement pursuant to Section 5.6(b), in the form in which filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein as of the date of such Prospectus.

 

“Purchase Contract,” when used with respect to any Unit, means the contract forming a part of such Unit and obligating the Company to (i) sell, and the Holder of such Unit to purchase, not later than the Purchase Contract Settlement Date, for $50 in cash, a number of newly-issued shares of Common Stock determined by reference to the applicable Settlement Rate and (ii) pay the Holder of such Unit Contract Adjustment Payments, if any, on the terms and subject to the conditions set forth in Article V hereof.

 

“Purchase Contract Agent” means the Person named as the “Purchase Contract Agent” in the first paragraph of this instrument until a successor Purchase Contract Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Purchase Contract Agent” shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.

 

“Purchase Contract Settlement Date” means ________________.

 

“Purchase Contract Settlement Fund” has the meaning specified in Section 5.5.

 

“Purchase Price” has the meaning specified in Section 5.1.

 

“Put Price” has the meaning specified in the Officer’s Certificate.

 

“Put Right” has the meaning specified in the Officer’s Certificate.

 

“Quotation Agent” has the meaning specified in the Officer’s Certificate.

 

“Reacquired Shares” has the meaning specified in Section 5.6(a)(6).

 

“Record Date” for the payment of distributions and Contract Adjustment Payments payable on any Payment Date means: (i) if all Units are represented by Global Certificates, the Business Day next preceding such Payment Date, and (ii) if all Units are not represented by Global Certificates, a day selected by the Company which shall be at least one Business Day but not more than 60 Business Days prior to such Payment Date (and which shall correspond to the related record date for the Debentures, as applicable).

 

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“Redemption Amount” has the meaning specified in the Officer’s Certificate.

 

“Redemption Price” has the meaning specified in the Indenture.

 

“Reference Dividend” has the meaning specified in Section 5.6(a)(5).

 

“Registration Statement” means a registration statement under the Securities Act covering, inter alia, the delivery of any securities in connection with an Early Settlement on the Early Settlement Date or a Fundamental Change Early Settlement on the Fundamental Change Early Settlement Date under Section 5.6(b)(ii), including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement, and any post-effective amendments thereto.

 

“Remarketing” means the remarketing of the Debentures by the Remarketing Agents pursuant to the Remarketing Agreement.

 

“Remarketing Agents” has the meaning specified in the Officer’s Certificate.

 

“Remarketing Agreement” has the meaning specified in the Officer’s Certificate.

 

“Remarketing Dates” means one or more Business Days during the period beginning on the fifth Business Day immediately preceding ________________ and ending on the third Business Day immediately preceding ________________ selected by the Company as a date on which the Remarketing Agents shall, in accordance with the terms of the Remarketing Agreement, remarket the Debentures.

 

“Remarketing Fee” has the meaning specified in the Officer’s Certificate.

 

“Remarketing Treasury Portfolio” has the meaning specified in the Officer’s Certificate.

 

“Remarketing Treasury Portfolio Purchase Price” has the meaning specified in the Officer’s Certificate.

 

“Reorganization Event” means:

 

(i)         any consolidation or merger of the Company with or into another Person or of another Person with or into the Company (other than a merger or consolidation in which the Company is the continuing Person and in which the Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person); or

 

(ii)        any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety; or

 

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(iii)       any statutory share exchange business combination of the Company with another Person (other than a statutory share exchange business combination in which the Company is the continuing Person and in which the Common Stock outstanding immediately prior to the statutory share exchange business combination is not exchanged for cash, securities or other property of the Company or another Person); or

 

(iv)       any liquidation, dissolution or winding up of the Company (other than as a result of, or after the occurrence of, a Termination Event).

 

“Reset Effective Date” has the meaning specified in the Officer’s Certificate.

 

“Reset Rate” means the Coupon Rate to be in effect for the Debentures on and after the Reset Effective Date and determined as provided in Section 4.1.

 

“Responsible Officer,” when used with respect to the Purchase Contract Agent, means any officer within the corporate trust department of the Purchase Contract Agent, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Purchase Contract Agent who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such persons’ knowledge of any familiarity with the particular subject, and who shall be responsible for the administration of this Agreement.

 

“Rights” has the meaning set forth in Section 5.6(a)(11).

 

“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder.

 

“Security Register” and “Security Registrar” have the respective meanings set forth in Section 3.5.

 

“Senior Indebtedness” means indebtedness of any kind of the Company, existing or incurred in the future (including the guarantee of the Debentures pursuant to the Guarantee Agreement), unless the instrument, if any, under which such indebtedness is incurred expressly provides that it is on a parity in right of payment with or subordinate in right of payment to the Contract Adjustment Payments.

 

“Separate Debentures” means Debentures that are not components of Corporate Units.

 

“Settlement Rate” has the meaning specified in Section 5.1.

 

“Similar Law” means federal, state and local laws that are substantively similar or are of similar effect to ERISA or the Code.

 

“Special Event” has the meaning specified in the Officer’s Certificate.

 

“Special Event Redemption” has the meaning specified in the Officer’s Certificate.

 

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“Special Event Redemption Date” has the meaning specified in the Officer’s Certificate.

 

“Special Event Treasury Portfolio” has the meaning specified in the Officer’s Certificate.

 

“Special Event Treasury Portfolio Purchase Price” has the meaning specified in the Officer’s Certificate.

 

“Spin-Off” means payment of a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit of the Company.

 

“Stated Amount” means $50 per Unit.

 

“Stock Price” has the meaning specified in Section 5.6(b)(ii).

 

“Successful Early Remarketing” has the meaning specified in the Officer’s Certificate.

 

“Successful Remarketing” has the meaning specified in the Officer’s Certificate.

 

“Successful Remarketing Date” has the meaning specified in the Officer’s Certificate.

 

“Termination Date” means the date, if any, on which a Termination Event occurs.

 

“Termination Event” means the occurrence of any of the following events:

 

(i)         at any time on or prior to the Purchase Contract Settlement Date, a judgment, decree or court order shall have been entered granting relief under the Bankruptcy Code or any other similar applicable Federal or State law, adjudicating the Company to be insolvent, or approving as properly filed a petition seeking reorganization or liquidation of the Company, and, unless such judgment, decree or order shall have been entered within 60 days prior to the Purchase Contract Settlement Date, such decree or order shall have continued undischarged and unstayed for a period of 60 days; or

 

(ii)        at any time on or prior to the Purchase Contract Settlement Date, a judgment, decree or court order for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company or of its property, or for the winding up or liquidation of its affairs, shall have been entered, and, unless such judgment, decree or order shall have been entered within 60 days prior to the Purchase Contract Settlement Date, such judgment, decree or order shall have continued undischarged and unstayed for a period of 60 days; or

 

(iii)       at any time on or prior to the Purchase Contract Settlement Date, the Company shall file a petition for relief under the Bankruptcy Code, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization or liquidation under the Bankruptcy Code or any other similar applicable Federal or State law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due.

 

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“Three-Day Remarketing Period” has the meaning specified in the Officer’s Certificate.

 

“Threshold Appreciation Price” has the meaning specified in Section 5.1.

 

“TIA” means, as of any time, the Trust Indenture Act of 1939, as amended, or any successor statute, as in effect at such time.

 

“Trading Day” has the meaning specified in Section 5.1.

 

“Transfer” has the meaning specified in Article I of the Pledge Agreement.

 

“Treasury Portfolio” means, as applicable, the Remarketing Treasury Portfolio or the Special Event Treasury Portfolio.

 

“Treasury Portfolio Purchase Price” means, as applicable, the Remarketing Treasury Portfolio Purchase Price or the Special Event Treasury Portfolio Purchase Price.

 

“Treasury Security” means a zero-coupon U.S. Treasury security having a principal amount at maturity equal to $1,000 and maturing on ________________ (CUSIP No. __________).

 

“Treasury Unit” means, following the substitution of Treasury Securities for Pledged Applicable Ownership Interests in Debentures or Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, as collateral to secure a Holder’s obligations under the Purchase Contract, the collective rights and obligations of a Holder of a Treasury Unit Certificate in respect of such Treasury Securities, subject to the Pledge thereof, and the related Purchase Contract.

 

“Treasury Unit Certificate” means a certificate evidencing the rights and obligations of a Holder in respect of the number of Treasury Units specified on such certificate.

 

[“Underwriting Agreement” means Underwriting Agreement, dated ___________, relating to the offer and sale of Corporate Units among the Company, NEE Capital and ____________.]

 

“Unit” means a Corporate Unit or a Treasury Unit, as the case may be.

 

“Value” means, with respect to any item of Collateral on any date, as to

 

(i)         Cash, the amount thereof;

 

(ii)        Treasury Securities, the aggregate principal amount thereof at maturity;

 

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(iii)       Applicable Ownership Interests in Debentures, the appropriate aggregate principal amount of the underlying Debentures; and

 

(iv)       Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term), the appropriate aggregate percentage of the aggregate principal amount at maturity of the Treasury Portfolio.

 

“Vice President” means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

SECTION 1.2.          Compliance Certificates and Opinions.

 

Except as otherwise expressly provided by this Agreement, upon any application or request by the Company to the Purchase Contract Agent to take any action under any provision of this Agreement, the Company shall furnish to the Purchase Contract Agent a Company Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:

 

(1)       a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;

 

(2)       a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)       a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)       a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 1.3.          Form of Documents Delivered to Purchase Contract Agent.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

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Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument.

 

SECTION 1.4.          Acts of Holders; Record Dates.

 

(a)           Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Purchase Contract Agent and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to Section 7.1) conclusive in favor of the Purchase Contract Agent and the Company, if made in the manner provided in this Section 1.4(a).

 

(b)           The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Purchase Contract Agent deems sufficient.

 

(c)           The ownership of Units shall be proved by the Security Register.

 

(d)           Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Certificate shall bind every future Holder of the same Certificate and the Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Purchase Contract Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Certificate.

 

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(e)           The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Units entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders of Units. If any record date is set pursuant to this paragraph, the Holders of the Outstanding Corporate Units and the Outstanding Treasury Units, as the case may be, on such record date, and no other Holders, shall be entitled to take the relevant action with respect to the Corporate Units or the Treasury Units, as the case may be, whether or not such Holders remain Holders after such record date; provided, that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite number of Outstanding Units on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite number of Outstanding Units on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Purchase Contract Agent in writing and to each Holder of Units in the manner set forth in Section 1.6.

 

With respect to any record date set pursuant to this Section 1.4, the Company may designate any date as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided, that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Purchase Contract Agent in writing, and to each Holder of Units in the manner set forth in Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.4, the Company shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

SECTION 1.5.          Notices.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of the Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,

 

(1)        the Purchase Contract Agent by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (including, without limitation, by telecopy) and personally delivered or mailed, first-class postage prepaid, addressed to the Purchase Contract Agent at The Bank of New York Mellon, __________, __________, __________, __________ __________, Attention: __________ with a copy to The Bank of New York Mellon Trust Company, N.A., __________, __________, __________, __________ __________, Attention: __________ or at any other address furnished in writing by the Purchase Contract Agent to the Holders and the Company;

 

(2)        the Company by the Purchase Contract Agent or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (including, without limitation, by telecopy) and personally delivered or mailed, first-class postage prepaid, addressed to the Company at NextEra Energy, Inc., 700 Universe Boulevard, Juno Beach, Florida 33408, Attention: Treasurer, or at any other address furnished in writing to the Purchase Contract Agent by the Company;

 

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(3)        the Collateral Agent by the Purchase Contract Agent, the Company or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (including, without limitation, by telecopy) and personally delivered or mailed, first-class postage prepaid, addressed to the Collateral Agent at __________, __________, __________, __________, __________ __________, __________, __________ Attention: __________ with a copy to __________, __________, __________, __________, __________, __________, __________, __________, Attention: __________, or at any other address furnished in writing by the Collateral Agent to the Purchase Contract Agent, the Company and the Holders; or

 

(4)        the Indenture Trustee by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (including, without limitation, by telecopy) and personally delivered or mailed, first-class postage prepaid, addressed to the Indenture Trustee at The Bank of New York Mellon, __________, __________, __________, __________, __________, Attention: __________ with a copy to __________, __________, __________, __________, __________, __________, Attention: __________, or at any other address furnished in writing by the Indenture Trustee to the Company.

 

As between the parties hereto, the Purchase Contract Agent agrees to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. In the absence of gross negligence or willful misconduct, the Purchase Contract Agent’s understanding of any such instructions or directions as may be given by the Company pursuant to this paragraph shall be deemed controlling. The Purchase Contract Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Purchase Contract Agent’s reliance upon and compliance with such instructions or directions notwithstanding that such instructions or directions conflict or are inconsistent with a subsequent written instruction or direction received by the Purchase Contract Agent after it has acted in compliance with the prior unsecured e-mail, facsimile transmission, or direction or instruction provided by other similar unsecured electronic methods. The Company, by providing electronic instructions or directions, agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Purchase Contract Agent, including without limitation the risk of the Purchase Contract Agent acting on unauthorized instructions or directions, and the risk of interception and misuse of such electronic instructions or directions by third parties.

 

SECTION 1.6.          Notice to Holders; Waiver.

 

Where this Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Purchase Contract Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Purchase Contract Agent shall constitute a sufficient notification for every purpose hereunder.

 

SECTION 1.7.          Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 1.8.          Successors and Assigns.

 

All covenants and agreements in this Agreement by the Company shall bind its successors and assigns, whether so expressed or not.

 

SECTION 1.9.          Separability Clause.

 

In case any provision in this Agreement or in the Units shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.

 

SECTION 1.10.          Benefits of Agreement.

 

Nothing in this Agreement or in the Units, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and, to the extent provided hereby, the Holders, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be beneficiaries of this Agreement and shall be bound by all of the terms and conditions hereof and of the Units evidenced by their Certificates by their acceptance of delivery of such Certificates.

 

SECTION 1.11.          Governing Law.

 

THIS AGREEMENT AND THE UNITS SHALL 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 LAWS OF ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE.

 

SECTION 1.12.          Legal Holidays.

 

In any case where any Payment Date shall not be a Business Day, then (notwithstanding any other provision of this Agreement or the Corporate Unit Certificates or the Treasury Unit Certificates) payment of the Contract Adjustment Payments, if any, or other distributions, if any, shall not be made on such date, but such payments shall be made on the next succeeding Business Day with the same force and effect as if made on such Payment Date, and no interest shall accrue or be payable by the Company or any Holder for the period from and after any such Payment Date, except that, if such next succeeding Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day with the same force and effect as if made on such Payment Date.

 

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In any case where the Purchase Contract Settlement Date or any Early Settlement Date or Fundamental Change Early Settlement Date shall not be a Business Day, then (notwithstanding any other provision of this Agreement, the Corporate Unit Certificates or the Treasury Unit Certificates) the Purchase Contracts shall not be performed or an Early Settlement or a Fundamental Change Early Settlement shall not be effected on such date, but the Purchase Contracts shall be performed or Early Settlement or Fundamental Change Early Settlement shall be effected, as applicable, on the immediately following Business Day with the same force and effect as if performed on the Purchase Contract Settlement Date, Early Settlement Date or Fundamental Change Early Settlement Date, as applicable.

 

SECTION 1.13.          Counterparts.

 

This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

SECTION 1.14.          Inspection of Agreement 

 

A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office for inspection by any Holder.

 

SECTION 1.15.          Force Majeure.

 

In no event shall the Purchase Contract Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Purchase Contract Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The Purchase Contract Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to maintain its computer (hardware and software) services in good working order.

 

SECTION 1.16.          Waiver of Jury Trial.

 

EACH OF THE COMPANY, THE HOLDERS FROM TIME TO TIME OF THE UNITS ACTING THROUGH THE PURCHASE CONTRACT AGENT AS THEIR ATTORNEY-IN-FACT, AND THE PURCHASE CONTRACT AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE UNITS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

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ARTICLE II

Certificate Forms

 

SECTION 2.1.          Forms of Certificates Generally.

 

The Certificates (including the form of Purchase Contract forming part of each Unit evidenced thereby) shall be in substantially the form set forth in Exhibit A hereto (in the case of Corporate Unit Certificates) or Exhibit B hereto (in the case of Treasury Unit Certificates), with such letters, numbers or other marks of identification or designation and such notations, legends or endorsements placed thereon as may be required to comply with applicable law, the rules of any securities exchange on which the Units may be listed or any depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Certificates, as evidenced by their execution of the Certificates.

 

The definitive Certificates shall be printed or may be produced in any other manner, all as determined by the officers of the Company executing the Units evidenced by such Certificates, consistent with the provisions of this Agreement, as evidenced by their execution thereof.

 

Every Global Certificate authenticated, executed on behalf of the Holders and delivered hereunder shall bear a legend substantially in the form set forth in Exhibit A and Exhibit B for a Global Certificate.

 

SECTION 2.2.          Form of Purchase Contract Agent’s Certificate of Authentication.

 

The form of the Purchase Contract Agent’s certificate of authentication of the Units shall be in substantially the form set forth on the form of the applicable Certificates.

 

ARTICLE III

The Units

 

SECTION 3.1.          Title and Terms; Denominations.

 

The aggregate number of Units evidenced by Certificates authenticated, executed on behalf of the Holders and delivered hereunder is limited to __________ units [(or __________ if the overallotment option provided for in the Underwriting Agreement is exercised in full)] except for Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.4, Section 3.5, Section 3.10, Section 3.12, Section 3.13, Section 5.9 or Section 8.5.

 

The Certificates shall be issuable only in registered form and only in denominations of a single Corporate Unit or Treasury Unit and any integral multiple thereof.

 

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SECTION 3.2.          Rights and Obligations Evidenced by the Certificates.

 

Each Corporate Unit Certificate shall evidence the number of Corporate Units specified therein, with each such Corporate Unit representing (1) the ownership by the Holder thereof of an Applicable Ownership Interest in Debentures or an Applicable Ownership Interest in the Treasury Portfolio, as the case may be, subject to the Pledge of such Applicable Ownership Interest in Debentures or Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, by such Holder pursuant to the Pledge Agreement, and (2) the rights and obligations of the Holder thereof and the Company under one Purchase Contract. The Purchase Contract Agent as attorney-in-fact for, and on behalf of, the Holder of each Corporate Unit shall pledge, pursuant to the Pledge Agreement, each Applicable Ownership Interest in Debentures or Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, forming a part of such Corporate Unit, to the Collateral Agent and grant to the Collateral Agent a security interest in the right, title, and interest of such Holder in such Applicable Ownership Interest in Debentures or such Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, for the benefit of the Company, to secure the obligation of the Holder under one Purchase Contract to purchase the Common Stock.

 

Upon the formation of a Treasury Unit pursuant to Section 3.13, each Treasury Unit Certificate shall evidence the number of Treasury Units specified therein, with each such Treasury Unit representing (1) the ownership by the Holder thereof of a 5% undivided beneficial interest in a Treasury Security, subject to the Pledge of such interest by such Holder pursuant to the Pledge Agreement, and (2) the rights and obligations of the Holder thereof and the Company under one Purchase Contract. The Purchase Contract Agent as attorney-in-fact for, and on behalf of, the Holder of each Treasury Unit shall pledge, pursuant to the Pledge Agreement, each undivided beneficial interest in a Treasury Security forming a part of such Treasury Unit, to the Collateral Agent and grant to the Collateral Agent a security interest in the right, title, and interest of such Holder in such undivided beneficial interest in a Treasury Security for the benefit of the Company, to secure the obligation of the Holder under one Purchase Contract to purchase the Common Stock.

 

Prior to the purchase of shares of Common Stock under each Purchase Contract, such Purchase Contract shall not entitle the Holder of a Unit to any of the rights of a holder of shares of Common Stock, including, without limitation, the right to vote or receive any dividends or other payments or to consent or to receive notice as a shareholder in respect of the meetings of shareholders or for the election of directors of the Company or for any other matter, or any other rights whatsoever as a shareholder of the Company.

 

SECTION 3.3.          Execution, Authentication, Delivery and Dating.

 

Subject to the provisions of Section 3.13 and Section 3.14 hereof, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Company may deliver Certificates executed by the Company to the Purchase Contract Agent for authentication, execution on behalf of the Holders and delivery, together with an Issuer Order for authentication of such Certificates, and the Purchase Contract Agent in accordance with such Issuer Order shall authenticate, execute on behalf of the Holders and deliver such Certificates.

 

The Certificates shall be executed on behalf of the Company by the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, one of the Vice Presidents, the Treasurer, one of the Assistant Treasurers, the Secretary or one of the Assistant Secretaries. The signature of any of these officers on the Certificates may be manual or facsimile.

 

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Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates.

 

No Purchase Contract evidenced by a Certificate shall be valid until such Certificate has been executed on behalf of the Holder by the manual signature of an authorized signatory of the Purchase Contract Agent, as such Holder’s attorney-in-fact. Such signature by an authorized signatory of the Purchase Contract Agent shall be conclusive evidence that the Holder of such Certificate has entered into the Purchase Contracts evidenced by such Certificate.

 

Each Certificate shall be dated the date of its authentication.

 

No Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein executed by an authorized signatory of the Purchase Contract Agent by manual signature, and such certificate of authentication upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder.

 

SECTION 3.4.          Temporary Certificates.

 

Pending the preparation of definitive Certificates, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu of such definitive Certificates, temporary Certificates which are in substantially the forms set forth in Exhibit A and Exhibit B hereto, with such letters, numbers or other marks of identification or designation and such notations, legends or endorsements placed thereon as may be required to comply with applicable law, the rules of any securities exchange on which the Corporate Units or Treasury Units, as the case may be, are listed or any depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Certificates, as evidenced by their execution of the Certificates.

 

If temporary Certificates are issued, the Company will cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates, the temporary Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the Corporate Trust Office, at the expense of the Company and without charge to the Holder. Upon surrender for cancellation of any one or more temporary Certificates, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, one or more definitive Certificates of like tenor and denominations and evidencing a like number of Corporate Units or Treasury Units, as the case may be, as the temporary Certificate or Certificates so surrendered. Until so exchanged, the temporary Certificates shall in all respects evidence the same benefits and the same obligations with respect to the Corporate Units or Treasury Units, as the case may be, evidenced thereby as definitive Certificates.

 

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SECTION 3.5.          Registration; Registration of Transfer and Exchange.

 

The Purchase Contract Agent shall keep at the Corporate Trust Office a register (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Purchase Contract Agent shall provide for the registration of Certificates and of transfers of Certificates (the Purchase Contract Agent, in such capacity, the “Security Registrar”). The Security Registrar shall record separately the registration and transfer of the Certificates evidencing Corporate Units and Treasury Units.

 

Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the designated transferee or transferees, and deliver, in the name of the designated transferee or transferees, one or more new Certificates of any authorized denominations, of like tenor, and evidencing a like number of Corporate Units or Treasury Units, as the case may be.

 

At the option of the Holder, Certificates may be exchanged for other Certificates, of any authorized denominations and evidencing a like number of Corporate Units or Treasury Units, as the case may be, upon surrender of the Certificates to be exchanged at the Corporate Trust Office. Whenever any Certificates are so surrendered for exchange, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver the Certificates which the Holder making the exchange is entitled to receive.

 

All Certificates issued upon any registration of transfer or exchange of a Certificate shall evidence the ownership of the same number of Corporate Units or Treasury Units, as the case may be, and be entitled to the same benefits and subject to the same obligations under this Agreement as the Corporate Units or Treasury Units, as the case may be, evidenced by the Certificate surrendered upon such registration of transfer or exchange.

 

Every Certificate presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Purchase Contract Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Purchase Contract Agent, duly executed by the Holder thereof or its attorney duly authorized in writing.

 

No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Company and the Purchase Contract Agent may require payment from the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates, other than any exchanges pursuant to Section 3.6 and Section 8.5 not involving any transfer.

 

Notwithstanding the foregoing, the Company will not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent will not be obligated to authenticate, execute on behalf of the Holder and deliver any Certificate in exchange for any other Certificate presented or surrendered for registration of transfer or for exchange on or after the Business Day immediately preceding the earliest to occur of any Early Settlement Date with respect to such Certificate, any Fundamental Change Early Settlement Date with respect to such Certificate, the Purchase Contract Settlement Date or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in this Section 3.5 and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall

 

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(i) if the Purchase Contract Settlement Date or any Early Settlement Date or Fundamental Change Early Settlement Date with respect to such other Certificate (or portion thereof) has occurred, deliver the shares of Common Stock issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such other Certificate (or portion thereof), or

 

(ii) if a Termination Event, Early Settlement or Fundamental Change Early Settlement shall have occurred prior to the Purchase Contract Settlement Date, or a Cash Settlement shall have occurred, transfer the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such other Certificate,

 

in each case subject to the applicable conditions and in accordance with the applicable provisions of Section 3.15 (with respect to a Termination Event) and Article V hereof.

 

SECTION 3.6.          Book-Entry Interests.

 

The Certificates, on original issuance, will be issued in the form of one or more fully registered Global Certificates, to be delivered to the Depositary or a nominee or custodian thereof by, or on behalf of, the Company. Such Global Certificates shall initially be registered on the Security Register in the name of Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive a definitive Certificate representing such Beneficial Owner’s interest in such Global Certificate, except as provided in Section 3.9. The Purchase Contract Agent shall enter into an agreement with the Depositary if so requested by the Company. Following the issuance of such Global Certificates and unless and until definitive, fully registered Certificates have been issued to Beneficial Owners pursuant to Section 3.9:

 

(i)            the provisions of this Section 3.6 shall be in full force and effect;

 

(ii)           the Company shall be entitled to deal with the Clearing Agency for all purposes of this Agreement (including the payment of Contract Adjustment Payments, if any, and receiving approvals, votes or consents hereunder) as the Holder of the Units and the sole holder of the Global Certificate(s) and shall have no obligation to the Beneficial Owners;

 

(iii)          to the extent that the provisions of this Section 3.6 conflict with any other provisions of this Agreement, the provisions of this Section 3.6 shall control; and

 

(iv)          the rights of the Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants. The Clearing Agency will make book-entry transfers among Clearing Agency Participants and receive and transmit payments of Contract Adjustment Payments to such Clearing Agency Participants.

 

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Transfers of Units evidenced by Global Certificates shall be made through the facilities of the Depositary, and any cancellation of, or increase or decrease in the number of, such Units (including the creation of Treasury Units and the recreation of Corporate Units pursuant to Section 3.13 and Section 3.14 respectively) shall be accomplished by making appropriate annotations on the Schedule of Increases or Decreases set forth in such Global Certificate.

 

SECTION 3.7.          Notices to Holders.

 

Whenever a notice or other communication to the Holders is required to be given under this Agreement, the Company or the Company’s agent shall give such notices and communications to the Holders and, with respect to any Certificates registered in the name of a Clearing Agency or the nominee of a Clearing Agency, the Company or the Company’s agent shall, except as set forth herein, have no obligations to the Beneficial Owners.

 

SECTION 3.8.          Appointment of Successor Clearing Agency.

 

If any Clearing Agency elects to discontinue its services as securities depositary with respect to the Units, the Company may, in its sole discretion, appoint a successor Clearing Agency with respect to the Units.

 

SECTION 3.9.          Definitive Certificates.

 

If (i) a Clearing Agency notifies the Company that it is unwilling or unable to continue its services as securities depositary with respect to the Units and a successor Clearing Agency is not appointed within 90 days pursuant to Section 3.8 after such notice has been given and is continuing, or (ii) the Company elects to terminate the book-entry system through the Clearing Agency with respect to the Units, then upon surrender of the Global Certificates representing the Book-Entry Interests with respect to the Units by the Clearing Agency, accompanied by registration instructions, the Company shall cause definitive Certificates to be delivered to Beneficial Owners in accordance with the instructions of the Clearing Agency. The Company shall not be liable for any delay in delivery of such instructions and may conclusively rely on and shall be protected in relying on, such instructions.

 

SECTION 3.10.        Mutilated, Destroyed, Lost and Stolen Certificates.

 

If any mutilated Certificate is surrendered to the Purchase Contract Agent, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, a new Certificate at the cost of the Holder, evidencing the same number of Corporate Units or Treasury Units, as the case may be, and bearing a Certificate number not contemporaneously outstanding.

 

If there shall be delivered to the Company and the Purchase Contract Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Certificate, and (ii) such security or indemnity at the cost of the Holder as may be required by the Company and the Purchase Contract Agent to hold each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Purchase Contract Agent that such Certificate has been acquired by a protected purchaser, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new Certificate, at the cost of the Holder, evidencing the same number of Corporate Units or Treasury Units, as the case may be, and bearing a Certificate number not contemporaneously outstanding.

 

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Notwithstanding the foregoing, the Company will not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent will not be obligated to authenticate, execute on behalf of the Holder and deliver to the Holder, with respect to such lost, stolen, destroyed or mutilated Certificate a new Certificate on or after the Business Day immediately preceding the earliest of any Early Settlement Date, any Fundamental Change Early Settlement Date, the Purchase Contract Settlement Date or the Termination Date. In addition, in lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in this Section 3.10 and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall

 

(i)            if the Purchase Contract Settlement Date or an Early Settlement Date or a Fundamental Change Early Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate has occurred, deliver the shares of Common Stock issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such Certificate, or

 

(ii)           if a Fundamental Change Early Settlement or an Early Settlement with respect to such lost, stolen, destroyed or mutilated Certificate or a Termination Event shall have occurred prior to the Purchase Contract Settlement Date or a Cash Settlement shall have occurred, transfer the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or the Treasury Securities, as the case may be, forming a part of the Units represented by such Certificate to such Holder,

 

in each case subject to the applicable conditions and in accordance with the applicable provisions of Section 3.15 (with respect to a Termination Event) and Article V hereof.

 

Upon the issuance of any new Certificate under this Section 3.10, the Company and the Purchase Contract Agent may require the payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other fees and expenses (including, without limitation, the fees and expenses of the Purchase Contract Agent) connected therewith.

 

Every new Certificate issued pursuant to this Section 3.10 in lieu of any destroyed, mutilated, lost or stolen Certificate shall constitute an original additional contractual obligation of the Company and of the Holder in respect of the Units evidenced thereby, whether or not the destroyed, mutilated, lost or stolen Certificate (and the Units evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits and be subject to all the obligations of this Agreement equally and proportionately with any and all other Certificates delivered hereunder.

 

The provisions of this Section 3.10 are exclusive and shall preclude, to the extent lawful, all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates.

 

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SECTION 3.11.        Persons Deemed Owners.

 

Prior to due presentment of a Certificate for registration of transfer, the Company, NEE Capital and the Purchase Contract Agent, and any agent of the Company, NEE Capital or the Purchase Contract Agent, may treat the Person in whose name such Certificate is registered on the Security Register as the owner of the Units evidenced thereby for purposes of (subject to any applicable record date) any payment or distribution with respect to the Applicable Ownership Interests in Debentures, or with respect to the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition thereof), as applicable, payment of Contract Adjustment Payments and performance of the Purchase Contracts and for all other purposes whatsoever in connection with such Units, whether or not payment, distribution or performance shall be overdue and notwithstanding any notice to the contrary, and neither the Company, NEE Capital nor the Purchase Contract Agent, nor any agent of the Company, NEE Capital or the Purchase Contract Agent, shall be affected by notice to the contrary.

 

Notwithstanding the foregoing, with respect to any Global Certificate, nothing herein shall prevent the Company, NEE Capital, the Purchase Contract Agent or any agent of the Company, NEE Capital or the Purchase Contract Agent, from treating the Clearing Agency as the sole Holder of such Global Certificate or from giving effect to any written certification, proxy or other authorization furnished by any Clearing Agency (or its nominee), as a Holder, with respect to such Global Certificate or impair, as between such Clearing Agency and owners of beneficial interests in such Global Certificate, the operation of customary practices governing the exercise of rights of such Clearing Agency (or its nominee) as Holder of such Global Certificate. None of the Company, NEE Capital, the Purchase Contract Agent or any agent of the Company, NEE Capital or the Purchase Contract Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Certificate or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

SECTION 3.12.        Cancellation.

 

All Certificates surrendered for delivery of shares of Common Stock on or after the Purchase Contract Settlement Date or in connection with an Early Settlement or a Fundamental Change Early Settlement or for delivery of the Debentures underlying the Applicable Ownership Interest in Debentures, or for delivery of the Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities, as the case may be, after the occurrence of a Termination Event or pursuant to a Cash Settlement, an Early Settlement or a Fundamental Change Early Settlement, a Collateral Substitution, or upon the registration of a transfer or exchange of a Unit, shall, if surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase Contract Agent along with appropriate written instructions regarding the cancellation thereof and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the Purchase Contract Agent for cancellation any Certificates previously authenticated, executed and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Certificates so delivered shall, upon an Issuer Order, be promptly cancelled by the Purchase Contract Agent. No Certificates shall be authenticated, executed on behalf of the Holder and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section 3.12, except as expressly permitted by this Agreement. All cancelled Certificates held by the Purchase Contract Agent shall upon written request be returned to the Company.

 

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If the Company or any Affiliate of the Company shall acquire any Certificate, such acquisition shall not operate as a cancellation of such Certificate unless and until such Certificate is delivered to the Purchase Contract Agent cancelled or for cancellation.

 

SECTION 3.13.        Creation or Recreation of Treasury Units by Substitution of Treasury Securities.

 

A Holder of a Corporate Unit may, at any time on or prior to 5:00 p.m., New York City time, on the seventh Business Day immediately preceding the Purchase Contract Settlement Date, create or recreate a Treasury Unit and separate the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as applicable, from the related Purchase Contract in respect of such Corporate Unit by substituting Treasury Securities for the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio that form a part of such Corporate Unit in accordance with this Section 3.13; provided, however, that if the Treasury Portfolio has replaced the Debentures underlying the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption, such Collateral Substitutions may be made at any time on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date. Unless a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption has previously occurred, Holders of Corporate Units shall not be permitted to effect Collateral Substitutions in accordance with the provisions of this Section 3.13 during the period commencing on and including the Business Day prior to the first of the three sequential Remarketing Dates comprising a Three-Day Remarketing Period and ending on and including the Reset Effective Date relating to a Successful Remarketing during such Three-Day Remarketing Period or, if none of the Remarketings during such Three-Day Remarketing Period is successful, the Business Day following the last of the three sequential Remarketing Dates occurring during such Three-Day Remarketing Period.

 

Holders of Corporate Units may make Collateral Substitutions and establish Treasury Units (i) only in integral multiples of 20 Corporate Units if Applicable Ownership Interests in Debentures are being replaced with Treasury Securities, or (ii) only in integral multiples of _____ Corporate Units (or such other number of Corporate Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date) if the Applicable Ownership Interests in the Treasury Portfolio are being replaced with Treasury Securities. To create 20 Treasury Units (if a Mandatory Redemption or a Special Event Redemption has not occurred and the Applicable Ownership Interests in Debentures remain components of Corporate Units), or _____ Treasury Units (or such other number of Treasury Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date) (if a Mandatory Redemption or a Special Event Redemption has occurred or the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as components of the Corporate Units as a result of a Successful Remarketing), the Corporate Unit Holder shall:

 

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(a)           if the Treasury Portfolio has not replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption, deposit with the Collateral Agent a Treasury Security having a principal amount at maturity of $1,000, which Treasury Security must have been purchased in the open market at the Corporate Unit Holder’s expense, unless otherwise owned by the Corporate Unit Holder; or

 

(b)           if the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption, deposit with the Collateral Agent Treasury Securities having an aggregate principal amount at maturity of $________, which Treasury Securities must have been purchased in the open market at the Corporate Unit Holder’s expense, unless otherwise owned by the Corporate Unit Holder; and

 

(c)           in each case, Transfer and surrender the related 20 Corporate Units, or, in the event the Treasury Portfolio is a component of Corporate Units, _____ Corporate Units (or such other number of Corporate Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date), to the Purchase Contract Agent accompanied by an instruction to the Purchase Contract Agent, substantially in the form of Exhibit B to the Pledge Agreement, stating that the Holder has Transferred the relevant types and amounts of Treasury Securities to the Collateral Agent and requesting that the Purchase Contract Agent instruct the Collateral Agent to release the Debentures underlying the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, underlying such Corporate Units, whereupon the Purchase Contract Agent shall promptly give such instruction to the Collateral Agent, substantially in the form of Exhibit A to the Pledge Agreement.

 

Upon receipt of the Treasury Securities described in clause (a) or (b) above and the instructions described in clause (c) above, in accordance with the terms of the Pledge Agreement, the Collateral Agent will release from the Pledge to the Purchase Contract Agent, on behalf of the Holder, the Debentures underlying the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, that had been components of such Corporate Unit, free and clear of the Company’s security interest therein, and upon receipt thereof the Purchase Contract Agent shall promptly:

 

(i)         cancel the related Corporate Units surrendered and Transferred;

 

(ii)        Transfer the Debentures underlying the Applicable Ownership Interest in Debentures, or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, that had been components of such Corporate Units to the Holder; and

 

(iii)       authenticate, execute on behalf of such Holder and deliver a Treasury Unit Certificate executed by the Company in accordance with Section 3.3 evidencing the same number of Purchase Contracts as were evidenced by the cancelled Corporate Units.

 

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Holders who elect to separate the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, from the related Purchase Contracts and to substitute Treasury Securities for such Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, shall be responsible for any fees or expenses payable to the Collateral Agent for its services as Collateral Agent in respect of the substitution, and the Company shall not be responsible for any such fees or expenses.

 

In the event a Holder making a Collateral Substitution pursuant to this Section 3.13 fails to effect a book-entry transfer of the Corporate Units or fails to deliver a Corporate Unit Certificate to the Purchase Contract Agent after depositing the Treasury Securities with the Collateral Agent, the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, constituting a part of such Corporate Unit, and any interest on such Applicable Ownership Interest in Debentures or distributions with respect to the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such Corporate Unit is so Transferred or the Corporate Unit Certificate is so delivered, as the case may be, or until such Holder provides evidence satisfactory to the Company and the Purchase Contract Agent that such Corporate Unit Certificate has been destroyed, mutilated, lost or stolen, together with any indemnity that may be required by the Purchase Contract Agent and the Company.

 

Except as provided in this Section 3.13, for so long as the Purchase Contract underlying a Corporate Unit remains in effect, such Corporate Unit shall not be separable into its constituent parts and the rights and obligations of the Holder in respect of the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, and the Purchase Contract comprising such Corporate Unit may be acquired, and may be Transferred and exchanged, only as an entire Corporate Unit.

 

SECTION 3.14.        Recreation of Corporate Units.

 

A Holder of a Treasury Unit may, at any time on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first day of the Final Three-Day Remarketing Period, recreate Corporate Units by depositing with the Collateral Agent Debentures underlying the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as applicable, having an aggregate principal amount equal to the aggregate principal amount at maturity of, and in substitution for all, but not less than all, of the Treasury Securities comprising part of the Treasury Unit in accordance with this Section 3.14; provided, however, that if the Treasury Portfolio has replaced the Debentures underlying the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption, such Collateral Substitutions may be made at any time on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date. Unless a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption has previously occurred, Holders of Treasury Units shall not be permitted to effect Collateral Substitutions in accordance with the provisions of this Section 3.14 during the period commencing on and including the Business Day prior to the first of the three sequential Remarketing Dates comprising a Three-Day Remarketing Period and ending on and including the Reset Effective Date relating to a Successful Remarketing during such Three-Day Remarketing Period or, if none of the Remarketings during such Three-Day Remarketing Period is successful, the Business Day following the last of the three sequential Remarketing Dates occurring during such Three-Day Remarketing Period.

 

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Holders of Treasury Units may make Collateral Substitutions and establish Corporate Units (i) only in integral multiples of 20 Treasury Units if Treasury Securities are being replaced by Applicable Ownership Interests in Debentures, or (ii) only in integral multiples of _____ Treasury Units (or such other number of Treasury Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date) if any Treasury Security is being replaced by the Applicable Ownership Interest in the Treasury Portfolio. To create 20 Corporate Units (if a Mandatory Redemption or a Special Event Redemption has not occurred and the Applicable Ownership Interests in Debentures remain components of Corporate Units), or _____ Corporate Units (if a Mandatory Redemption or a Special Event Redemption has occurred or the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as a component of the Corporate Units as a result of a Successful Remarketing) or such other number of Corporate Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date, the Treasury Unit Holder shall:

 

(a)           if the Treasury Portfolio has not replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption, deposit with the Collateral Agent $1,000 in aggregate principal amount of Debentures, which Debentures must have been purchased in the open market at the Treasury Unit Holder’s expense, unless otherwise owned by the Treasury Unit Holder; or

 

(b)           if the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Mandatory Redemption or a Special Event Redemption, deposit with the Collateral Agent the Applicable Ownership Interest in the Treasury Portfolio for each _____ Corporate Units being created by the Holder, and having an aggregate principal amount of $________, which Applicable Ownership Interest in the Treasury Portfolio must have been purchased in the open market at the Treasury Unit Holder’s expense, unless otherwise owned by the Treasury Unit Holder; and

 

(c)           in each case, Transfer and surrender the related 20 Treasury Units, or in the event the Treasury Portfolio is components of Corporate Units, _____ Treasury Units (or such other number of Treasury Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date), to the Purchase Contract Agent accompanied by an instruction to the Purchase Contract Agent, substantially in the form of Exhibit B to the Pledge Agreement, stating that the Holder has Transferred the relevant amount of Debentures underlying the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, to the Collateral Agent and requesting that the Purchase Contract Agent instruct the Collateral Agent to release the Treasury Securities underlying such Treasury Units, whereupon the Purchase Contract Agent shall promptly give such instruction to the Collateral Agent, substantially in the form of Exhibit A to the Pledge Agreement.

 

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Upon receipt of the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, described in clause (a) or (b) above and the instructions described in clause (c) above, in accordance with the terms of the Pledge Agreement, the Collateral Agent will release the Treasury Securities having a corresponding aggregate principal amount from the Pledge to the Purchase Contract Agent, on behalf of the Holder, free and clear of the Company’s security interest therein, and upon receipt thereof the Purchase Contract Agent shall promptly:

 

(i)         cancel the related Treasury Units surrendered and Transferred;

 

(ii)        Transfer the Treasury Securities that had been components of such Treasury Units to the Holder; and

 

(iii)       authenticate, execute on behalf of such Holder and deliver a Corporate Unit Certificate executed by the Company in accordance with Section 3.3 evidencing the same number of Purchase Contracts as were evidenced by the cancelled Treasury Units.

 

Holders who elect to separate Treasury Securities from the related Purchase Contracts and to substitute the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, for such Treasury Securities shall be responsible for any fees or expenses payable to the Collateral Agent for its services as Collateral Agent in respect of the substitution, and the Company shall not be responsible for any such fees or expenses.

 

In the event a Holder making a Collateral Substitution pursuant to this Section 3.14 fails to effect a book-entry transfer of the Treasury Units or fails to deliver a Treasury Unit Certificate to the Purchase Contract Agent after depositing the Applicable Ownership Interest in Debentures or Applicable Ownership Interest in the Treasury Portfolio with the Collateral Agent, the Treasury Securities constituting a part of such Treasury Unit Certificate, and any interest on such Treasury Securities, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such Treasury Unit Certificate is so Transferred or the Treasury Unit is so delivered, or until such Holder provides evidence satisfactory to the Company and the Purchase Contract Agent that such Treasury Unit Certificate has been destroyed, mutilated, lost or stolen, together with any indemnity that may be required by the Purchase Contract Agent and the Company.

 

Except as provided in this Section 3.14, for so long as the Purchase Contract underlying a Treasury Unit remains in effect, such Treasury Unit shall not be separable into its constituent parts and the rights and obligations of the Holder of such Treasury Unit in respect of the Treasury Security and Purchase Contract comprising such Treasury Unit may be acquired, and may be Transferred and exchanged, only as an entire Treasury Unit.

 

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SECTION 3.15.        Transfer of Collateral upon Occurrence of Termination Event.

 

Upon the occurrence of a Termination Event and the Transfer to the Purchase Contract Agent of the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or the Treasury Securities, as the case may be, underlying the Corporate Units and the Treasury Units pursuant to the terms of the Pledge Agreement, the Purchase Contract Agent shall request transfer instructions with respect to the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or Treasury Securities, as the case may be, from each Holder by written request mailed to such Holder at its address as it appears in the Security Register. Upon book-entry transfer of the Corporate Units or Treasury Units or delivery of a Corporate Unit Certificate or Treasury Unit Certificate to the Purchase Contract Agent with such transfer instructions, the Purchase Contract Agent shall transfer the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or Treasury Securities, as the case may be, underlying such Corporate Units or Treasury Units, as the case may be, to such Holder by book-entry transfer, or other appropriate procedures, in accordance with such instructions. In the event a Holder of Corporate Units or Treasury Units fails to effect such Transfer or delivery, the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or Treasury Securities, as the case may be, underlying such Corporate Units or Treasury Units, as the case may be, and any interest thereon, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such Corporate Units or Treasury Units are transferred or the Corporate Unit Certificate or Treasury Unit Certificate is surrendered or such Holder provides satisfactory evidence that such Corporate Unit Certificate or Treasury Unit Certificate has been destroyed, mutilated, lost or stolen, together with any indemnity that may be required by the Purchase Contract Agent and the Company. In the case of the Treasury Portfolio or any Treasury Securities, the Purchase Contract Agent may dispose of the subject securities for cash and pay the applicable portion of such cash to the Holders in lieu of such Holders’ Applicable Ownership Interest in such Treasury Portfolio, or any Treasury Securities, where such Holder would otherwise have been entitled to receive less than $1,000 of any such security.

 

SECTION 3.16.        No Consent to Assumption.

 

Each Holder of a Unit, by its acceptance thereof, will be deemed expressly to have withheld any consent to the assumption under Section 365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the Company, its trustee in bankruptcy, receiver, liquidator or a person or entity performing similar functions, in the event that the Company becomes a debtor under the Bankruptcy Code or subject to other similar Federal or State law providing for reorganization or liquidation.

 

ARTICLE IV

The Debentures

 

SECTION 4.1.          Payment of Interest; Rights to Interest Preserved; Interest Rate Reset; Notice.

 

A payment of interest on the Debentures underlying the Applicable Ownership Interest in Debentures or distribution with respect to the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, which is paid on any Payment Date shall, subject to receipt thereof by the Purchase Contract Agent from the Collateral Agent as provided by the terms of the Pledge Agreement, be paid to the Person in whose name the Corporate Unit Certificate (or any Predecessor Corporate Unit Certificate) of which such Applicable Ownership Interest in Debentures or such Applicable Ownership Interest in the Treasury Portfolio, as the case may be, is a part is registered at the close of business on the Record Date relating to such Payment Date.

 

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Each Corporate Unit Certificate evidencing an Applicable Ownership Interest in Debentures delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of any other Corporate Unit Certificate shall carry the rights to payment of interest accrued and unpaid, and to accrue interest, which is carried by the Applicable Ownership Interest in Debentures underlying such other Corporate Unit Certificate.

 

In the case of any Corporate Unit with respect to which Cash Settlement of the underlying Purchase Contract is effected on the Business Day immediately preceding the Purchase Contract Settlement Date pursuant to prior notice, or with respect to which Early Settlement or Fundamental Change Early Settlement of the underlying Purchase Contract is effected on an Early Settlement Date or a Fundamental Change Early Settlement Date, as the case may be, or with respect to which a Collateral Substitution is effected, in each case on a date that is after any Record Date and on or prior to the next succeeding Payment Date, interest on the Applicable Ownership Interest in Debentures or distributions with respect to the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, underlying such Corporate Units otherwise payable on such Payment Date shall be payable on such Payment Date notwithstanding such Cash Settlement or Early Settlement or Fundamental Change Early Settlement or Collateral Substitution, and such interest or distributions shall, subject to receipt thereof by the Purchase Contract Agent, be payable to the Person in whose name the Corporate Unit Certificate (or any Predecessor Corporate Unit Certificate) was registered at the close of business on the Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Corporate Unit with respect to which Cash Settlement, Early Settlement or Fundamental Change Early Settlement of the underlying Purchase Contract is effected, payments attributable to the Debentures underlying Applicable Ownership Interests in Debentures or distributions on Applicable Ownership Interests in the Treasury Portfolio, as the case may be, that would otherwise be payable or made after the Purchase Contract Settlement Date, Early Settlement Date, or Fundamental Change Early Settlement Date, as the case may be, shall not be payable hereunder to the Holder of such Corporate Units; provided, however, that to the extent that such Holder continues to hold Separate Debentures or Applicable Ownership Interests in the Treasury Portfolio that formerly comprised a part of such Holder’s Corporate Units, such Holder shall be entitled to receive interest on such Separate Debentures or distributions on such Applicable Ownership Interests in the Treasury Portfolio.

 

The Coupon Rate on the Debentures to be in effect on and after the Reset Effective Date will be determined on the Successful Remarketing Date with respect thereto, and reset to the Reset Rate. If there is no Successful Remarketing during the Period for Early Remarketing or the Final Three-Day Remarketing Period, the Coupon Rate on the Debentures will not be reset but will continue at the initial Coupon Rate.

 

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SECTION 4.2.          Notice and Voting.

 

Under and subject to the terms of the Pledge Agreement and this Agreement, the Purchase Contract Agent will be entitled to exercise the voting and any other consensual rights pertaining to the Pledged Applicable Ownership Interests in Debentures but only to the extent instructed by the Holders as described below. Upon receipt of notice of any meeting at which holders of Debentures are entitled to vote or upon any solicitation of consents, waivers or proxies of holders of Debentures, the Purchase Contract Agent shall, as soon as practicable thereafter, mail to the Holders of Corporate Units a notice (a) containing such information as is contained in the notice or solicitation, (b) stating that each Corporate Unit Holder on the record date set by the Purchase Contract Agent therefor (which, to the extent possible, shall be the same date as the record date for determining the holders of Debentures entitled to vote) shall be entitled to instruct the Purchase Contract Agent as to the exercise of the voting rights pertaining to the Applicable Ownership Interest in Debentures constituting a part of such Holder’s Corporate Units and (c) stating the manner in which such instructions may be given. Upon the written request of the Holders of Corporate Units on such record date, the Purchase Contract Agent shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of Debentures underlying the Applicable Ownership Interests in Debentures as to which any particular voting instructions are received. In the absence of specific instructions from the Holder of Corporate Units, the Purchase Contract Agent shall abstain from voting the Debentures underlying the Applicable Ownership Interests in Debentures constituting a part of such Holder’s Corporate Units. The Company hereby agrees, if applicable, to solicit Holders of Corporate Units to timely instruct the Purchase Contract Agent in order to enable the Purchase Contract Agent to vote such Debentures.

 

SECTION 4.3.          Substitution of the Treasury Portfolio for the Debentures.

 

(a)           Upon the occurrence of (i) a Mandatory Redemption where the related Purchase Contracts have not been previously or concurrently terminated in accordance with Section 5.8 or (ii) a Special Event Redemption, in each case prior to the Purchase Contract Settlement Date, the Redemption Price payable on the Mandatory Redemption Date or the Special Event Redemption Date, as the case may be, with respect to the Pledged Applicable Ownership Interests in Debentures shall be delivered to the Collateral Agent in exchange for such Pledged Applicable Ownership Interests in Debentures. Pursuant to the terms of the Pledge Agreement, the Collateral Agent will apply an amount equal to the Redemption Amount to purchase on behalf of the Holders of Corporate Units the Treasury Portfolio and promptly remit the remaining portion of such Redemption Price, if any, to the Purchase Contract Agent for payment to the Holders of such Corporate Units. The Treasury Portfolio will be substituted for the Pledged Applicable Ownership Interests in Debentures, and will be held by the Collateral Agent in accordance with the terms of the Pledge Agreement to secure the obligation of each Holder of a Corporate Unit to purchase the Common Stock on the Purchase Contract Settlement Date under the Purchase Contract constituting a part of such Corporate Unit. Following the occurrence of a Mandatory Redemption or a Special Event Redemption prior to the Purchase Contract Settlement Date, the Holders of Corporate Units and the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as the Holders of Corporate Units and the Collateral Agent had in respect of the Debentures underlying the Applicable Ownership Interests in Debentures subject to the Pledge thereof as provided in Article II, Article III, Article IV, Article V or Article VI of the Pledge Agreement, and any reference herein to the Debentures shall be deemed to be a reference to such Treasury Portfolio. The Company may cause to be made in any Corporate Unit Certificates thereafter to be issued such change in phraseology and form (but not in substance) as may be appropriate to reflect the substitution of the Applicable Ownership Interest in the Treasury Portfolio for the Applicable Ownership Interest in Debentures as collateral.

 

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(b)           Upon a Successful Remarketing during the Period for Early Remarketing, the proceeds of such Remarketing (after deducting any Remarketing Fee) shall be delivered to the Collateral Agent in exchange for the Pledged Applicable Ownership Interests in Debentures. Pursuant to the terms of the Pledge Agreement, the Collateral Agent will apply an amount equal to the Treasury Portfolio Purchase Price to purchase on behalf of the Holders of Corporate Units the Treasury Portfolio and promptly remit the remaining portion of such proceeds to the Purchase Contract Agent for payment to the Holders of such Corporate Units. The Treasury Portfolio will be substituted for the Pledged Applicable Ownership Interests in Debentures, and will be held by the Collateral Agent in accordance with the terms of the Pledge Agreement to secure the obligation of each Holder of a Corporate Unit to purchase the Common Stock on the Purchase Contract Settlement Date under the Purchase Contract constituting a part of such Corporate Unit. Following a Successful Remarketing during the Period for Early Remarketing, the Holders of Corporate Units and the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as the Holders of Corporate Units and the Collateral Agent had in respect of the Debentures underlying the Applicable Ownership Interests in Debentures subject to the Pledge thereof as provided in Article II, Article III, Article IV, Article V or Article VI of the Pledge Agreement, and any reference herein to the Debentures shall be deemed to be reference to such Treasury Portfolio. The Company may cause to be made in any Corporate Unit Certificates thereafter to be issued such change in phraseology and form (but not in substance) as may be appropriate to reflect the substitution of the Applicable Ownership Interest in the Treasury Portfolio for the Applicable Ownership Interest in Debentures as collateral.

 

SECTION 4.4.          Consent to Treatment for Tax Purposes.

 

Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance thereof, covenants and agrees to treat itself as the owner, for Federal, State and local income and franchise tax purposes, of (i) the related Applicable Ownership Interest in Debentures or the related Applicable Ownership Interest in the Treasury Portfolio, in the case of the Corporate Units, or (ii) the Treasury Securities, in the case of the Treasury Units. Each Holder of a Corporate Unit, by its acceptance thereof, further covenants and agrees to treat the Applicable Ownership Interest in Debentures as indebtedness of NEE Capital for Federal, State and local income and franchise tax purposes.

 

ARTICLE V

The Purchase Contracts

 

SECTION 5.1.          Purchase of Shares of Common Stock.

 

Each Purchase Contract shall, unless a Termination Event or an Early Settlement in accordance with Section 5.9 hereof or a Fundamental Change Early Settlement in accordance with Section 5.6(b)(ii) hereof has occurred with respect to the Units of which such Purchase Contract is a part, obligate the Holder of the related Unit to purchase, and the Company to sell, on the Purchase Contract Settlement Date, for $50 in cash (the “Purchase Price”), a number of newly-issued shares of Common Stock determined by reference to the applicable Settlement Rate. The applicable “Settlement Rate” shall be determined as follows:

 

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(a)           if the Applicable Market Value (as defined below) is equal to or greater than $_____ (the “Threshold Appreciation Price”), the applicable Settlement Rate shall equal ______ shares of Common Stock per Purchase Contract (the “Minimum Settlement Rate”);

 

(b)           if the Applicable Market Value is less than the Threshold Appreciation Price, but is greater than $_____ (the “Reference Price”), the applicable Settlement Rate shall equal the number of shares of Common Stock per Purchase Contract having a value equal to $50 divided by the Applicable Market Value; and

 

(c)           if the Applicable Market Value is less than or equal to the Reference Price, the applicable Settlement Rate shall equal ______ shares of Common Stock per Purchase Contract (the “Maximum Settlement Rate”),

 

in each case subject to adjustment as provided in Section 5.6 (and in each case rounded upward or downward to the nearest 1/10,000th of a share). As provided in Section 5.10, no fractional shares of Common Stock will be issued upon settlement of Purchase Contracts.

 

The “Applicable Market Value” means the average of the Closing Price per share of Common Stock on each Trading Day during the Observation Period; provided, however, that if a Reorganization Event occurs, the Applicable Market Value will mean the value of an Exchange Property Unit. Following the occurrence of any such Reorganization Event, references herein to the purchase or issuance of shares of Common Stock shall be construed to be references to settlement into Exchange Property Units. For purposes of calculating the value of an Exchange Property Unit, (x) the value of any common stock included in the Exchange Property Unit shall be determined using the average of the Closing Price per share of such common stock on each Trading Day during the Observation Period (adjusted as set forth under Section 5.6) and (y) the value of any other property, including securities other than common stock, included in the Exchange Property Unit, shall be the value of such property on the first Trading Day of the Observation Period (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution). The “Closing Price” of the Common Stock on any date of determination means the closing sale price (or, if no closing price is reported, the last reported sale price) of the Common Stock on the New York Stock Exchange (the “NYSE”) on such date or, if the Common Stock is not listed for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which the Common Stock is so listed, or if the Common Stock is not so reported, the last quoted bid price for the Common Stock in the over-the-counter market as reported by the OTC Markets Group Inc. or similar organization, or, if such bid price is not available, the market value of the Common Stock on such date as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. A “Trading Day” means a day on which the Common Stock (A) is not suspended from trading on any national or regional securities exchange or over-the-counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or over-the-counter market that is the primary market for the trading of the Common Stock at the close of business. If the Common Stock is not traded on a securities exchange or quoted in the over-the-counter market, then “Trading Day” shall mean Business Day.

 

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Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance thereof, irrevocably authorizes the Purchase Contract Agent to enter into and perform the related Purchase Contract on its behalf as its attorney-in-fact (including the execution of Certificates on behalf of such Holder), agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase Contracts, consents to the provisions hereof, irrevocably authorizes the Purchase Contract Agent to enter into and perform the Pledge Agreement on its behalf as its attorney-in-fact, and consents to and agrees to be bound by the Pledge of the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or the Treasury Securities, as the case may be, pursuant to the Pledge Agreement. Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance thereof, further covenants and agrees that, to the extent and in the manner provided in Section 5.4 and in the Pledge Agreement, but subject to the terms thereof, payments in respect of the Debentures underlying Applicable Ownership Interest in Debentures or the Proceeds of the Treasury Securities or the Applicable Ownership Interest in the Treasury Portfolio on the Purchase Contract Settlement Date shall be paid by the Collateral Agent to the Company in satisfaction of such Holder’s obligations under such Purchase Contract and such Holder shall acquire no right, title or interest in such payments.

 

Upon registration of transfer of a Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Purchase Contract Agent pursuant hereto) under the terms of this Agreement, the Purchase Contracts underlying such Certificate and the Pledge Agreement, and the transferor shall be released from the obligations under this Agreement, the Purchase Contracts underlying the Certificates so transferred and the Pledge Agreement. The Company covenants and agrees, and each Holder of a Certificate, by its acceptance thereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.

 

SECTION 5.2.          Contract Adjustment Payments.

 

(a)           Subject to Section 5.2(d) and Section 5.3 herein, the Company shall pay, on each Payment Date, the Contract Adjustment Payments payable in respect of each Purchase Contract to the Person in whose name a Certificate (or any Predecessor Certificate) is registered on the Security Register at the close of business on the Record Date relating to such Payment Date. The Contract Adjustment Payments will be payable at the Corporate Trust Office or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register or by wire transfer to an account appropriately designated in writing by the Person entitled to payment. The Contract Adjustment Payments will accrue from ________________.

 

(b)           Upon the occurrence of a Termination Event, the Company’s obligation to pay Contract Adjustment Payments (including any accrued or Deferred Contract Adjustment Payments) shall cease.

 

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(c)           Each Certificate delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of any other Certificate (including as a result of a Collateral Substitution or the recreation of a Corporate Unit) shall carry the rights to Contract Adjustment Payments accrued and unpaid, and to accrue Contract Adjustment Payments, which were carried by the Purchase Contracts which were represented by such other Certificates.

 

(d)          Subject to Section 5.9 and Section 5.6(b), in the case of any Unit with respect to which Early Settlement or Fundamental Change Early Settlement of the underlying Purchase Contract is effected on an Early Settlement Date or a Fundamental Change Early Settlement Date, as applicable, that is after any Record Date and on or prior to the next succeeding Payment Date, Contract Adjustment Payments, if any, otherwise payable on such Payment Date shall be payable on such Payment Date notwithstanding such Early Settlement or Fundamental Change Early Settlement, and such Contract Adjustment Payments shall, subject to receipt thereof by the Purchase Contract Agent, be payable to the Person in whose name the Certificate evidencing such Unit (or any Predecessor Certificate) was registered at the close of business on such Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Unit with respect to which Early Settlement or Fundamental Change Early Settlement of the underlying Purchase Contract is effected on an Early Settlement Date or Fundamental Change Early Settlement Date, as applicable, Contract Adjustment Payments (but not, for the avoidance of doubt, Deferred Contract Adjustment Payments) that would otherwise be payable after the Early Settlement Date or Fundamental Change Early Settlement Date with respect to such Purchase Contract shall not be payable.

 

The Company’s obligations with respect to Contract Adjustment Payments (including any accrued or Deferred Contract Adjustment Payments) will be subordinate and junior in right of payment to the Company’s obligations under any Senior Indebtedness.

 

Upon any payment or distribution of assets of the Company to its creditors upon any dissolution, winding up, liquidation or reorganization, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other similar proceedings, the holders of all Senior Indebtedness shall first be entitled to receive payment in full of all amounts due or to become due thereon, or payment of such amounts shall have been provided for, before the Holders of the Corporate Units or Treasury Units shall be entitled to receive any Contract Adjustment Payments with respect to any such Corporate Units or Treasury Units.

 

By reason of this subordination, in those events, holders of the Company’s Senior Indebtedness may receive more, ratably, and Holders of the Corporate Units or Treasury Units may receive less, ratably, than the Company’s other creditors. Because the Company is a holding company, contract adjustment payments on the Corporate Units of Treasury Units are effectively subordinated to all indebtedness and other liabilities, including trade payables, debt and preferred stock incurred or issued by the Company’s subsidiaries. The Company’s subsidiaries are separate and distinct legal entities and have no obligation to pay any contract adjustment payments or to make any funds available for such payment.

 

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In addition, no payment of Contract Adjustment Payments with respect to any Corporate Units or Treasury Units may be made if:

 

(i)         any payment default on any Senior Indebtedness of the Company has occurred and is continuing beyond any applicable grace period; or

 

(ii)        any default on any indebtedness of the Company other than a payment default with respect to Senior Indebtedness occurs and is continuing that permits the acceleration of the maturity on any indebtedness of the Company and the Purchase Contract Agent receives a written notice of such default from the Company or the holders of such Senior Indebtedness.

 

SECTION 5.3.          Deferral of Payment Dates for Contract Adjustment Payments.

 

The Company shall have the right, at any time prior to the Purchase Contract Settlement Date, to defer the payment of any or all of the Contract Adjustment Payments otherwise payable on any Payment Date to any subsequent Payment Date (a “Deferral Period”), but only if the Company shall give the Holders and the Purchase Contract Agent written notice of its election to defer such payment (specifying the amount to be deferred and the expected Deferral Period) at least ten Business Days prior to the earlier of (i) the next succeeding Payment Date or (ii) the date the Company is required to give notice of the Record Date or Payment Date with respect to payment of such Contract Adjustment Payments to the NYSE or other applicable self-regulatory organization or to Holders of the Units, but in any event not less than one Business Day prior to such Record Date. Prior to the expiration of any Deferral Period, the Company may further extend such Deferral Period to any subsequent Payment Date, but not beyond the Purchase Contract Settlement Date (or any applicable Early Settlement Date or Fundamental Change Early Settlement Date).

 

In connection with any Contract Adjustment Payments so deferred, additional Contract Adjustment Payments on the amounts so deferred will accrue at the rate of ______% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Adjustment Payments, if any, together with the accrued additional Contract Adjustment Payments accrued thereon, being referred to herein as the “Deferred Contract Adjustment Payments”). Deferred Contract Adjustment Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to this Section 5.3.

 

At the end of each Deferral Period, including as the same may be extended pursuant to this Section 5.3, or, in the event of an Early Settlement or Fundamental Change Early Settlement, on the Early Settlement Date or Fundamental Change Early Settlement Date, as the case may be, the Company shall pay all Deferred Contract Adjustment Payments then due in the manner set forth in Section 5.2(a) (in the case of the end of a Deferral Period), in the manner set forth in Section 5.9 (in the case of an Early Settlement) or in the manner set forth in Section 5.6(b) (in the case of a Fundamental Change Early Settlement) to the extent such amounts are not deducted from the amount otherwise payable by the Holder in the case of a Cash Settlement, any Early Settlement or any Fundamental Change Early Settlement. In the event of an Early Settlement, the Company shall pay all Deferred Contract Adjustment Payments due on the Purchase Contracts being settled early through the Payment Date immediately preceding the applicable Early Settlement Date, to the extent such amounts are not deducted as described above. In the event of a Fundamental Change Early Settlement, the Company shall pay all Deferred Contract Adjustment Payments due on the Purchase Contracts being settled on the Fundamental Change Early Settlement Date to but excluding such Fundamental Change Early Settlement Date, to the extent such amounts are not deducted as described above.

 

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At the end of the Deferral Period and the payment of all Deferred Contract Adjustment Payments and all accrued and unpaid Contract Adjustment Payments then due, the Company may commence a new Deferral Period, provided, that such Deferral Period, together with all extensions thereof, may not extend beyond the Purchase Contract Settlement Date (or any applicable Early Settlement Date or Fundamental Change Early Settlement Date). Except in the case of an Early Settlement or Fundamental Change Early Settlement, no Contract Adjustment Payments shall be due and payable during a Deferral Period except at the end thereof, provided, that prior to the end of such Deferral Period, the Company, at its option, may prepay on any Payment Date all or any portion of the Deferred Contract Adjustment Payments accrued during the then elapsed portion of such Deferral Period.

 

No Contract Adjustment Payments may be deferred to a date that is after the Purchase Contract Settlement Date (or, with respect to Purchase Contracts for which Early Settlement or Fundamental Change Early Settlement has occurred, the Early Settlement Date or the Fundamental Change Early Settlement Date, as the case may be). If the Purchase Contracts are terminated upon the occurrence of a Termination Event, the Holder’s right to receive Contract Adjustment Payments and Deferred Contract Adjustment Payments will terminate.

 

In the event the Company exercises its option to defer the payment of Contract Adjustment Payments, then, until the Deferred Contract Adjustment Payments have been paid, the Company shall not declare or pay dividends on, make distributions with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock or make guarantee payments with respect to the foregoing other than:

 

(i)         purchases, redemptions or acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or agents or a stock purchase or dividend reinvestment plan, or the satisfaction by the Company of its obligations pursuant to any contract or security outstanding on the date that payment of Contract Adjustment Payments are deferred requiring the Company to purchase, redeem or acquire its capital stock,

 

(ii)        as a result of a reclassification of the Company’s capital stock or the exchange or conversion of all or a portion of one class or series of the Company’s capital stock or the capital stock of one of the Company’s subsidiaries for another class or series of the Company’s capital stock,

 

(iii)       any exchange, redemption or conversion of any class or series of the Company’s indebtedness for any class or series of the Company’s capital stock,

 

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(iv)       the purchase of fractional interests in shares of the Company’s capital stock pursuant to the conversion or exchange provisions of the Company’s capital stock or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts,

 

(v)        dividends or other distributions paid or made in capital stock of the Company (or rights to acquire capital stock), or repurchases, redemptions or acquisitions of capital stock in connection with the issuance or exchange of capital stock (or securities convertible into or exchangeable for shares of the Company’s capital stock and distributions in connection with the settlement of stock purchase contracts) or

 

(vi)       redemptions, exchanges or repurchases of, or with respect to, any rights outstanding under a shareholder rights plan or the declaration or payment thereunder of a dividend or other distribution of or with respect to rights in the future.

 

SECTION 5.4.          Payment of Purchase Price.

 

(a)          (i)         Unless the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as components of the Corporate Units or a Holder settles the underlying Purchase Contract through the early delivery of cash to the Purchase Contract Agent in the manner described in Section 5.9 or Section 5.6(b), each Holder of a Corporate Unit must notify the Purchase Contract Agent of its intention to pay in cash (“Cash Settlement”) the Purchase Price for the shares of Common Stock to be purchased pursuant to the Purchase Contract on the Purchase Contract Settlement Date by presenting and surrendering to the Purchase Contract Agent the Corporate Unit Certificate with a notice in substantially the form of Exhibit C hereto completed and executed. Such presentation, surrender and notice must be made at or prior to 5:00 p.m., New York City time, (x) on the seventh Business Day immediately preceding the Purchase Contract Settlement Date, or (y) if all the Remarketings during the Final Three-Day Remarketing Period result in Failed Remarketings, on the second Business Day immediately preceding the Purchase Contract Settlement Date. The Purchase Contract Agent shall promptly notify the Collateral Agent of the receipt of such a notice from a Holder intending to make a Cash Settlement.

 

(ii)       A Holder of a Corporate Unit who has so notified the Purchase Contract Agent of its intention to make a Cash Settlement is required to pay the Purchase Price to the Collateral Agent prior to 11:00 a.m., New York City time, (x) on the sixth Business Day immediately preceding the Purchase Contract Settlement Date, or (y) if all the Remarketings during the Final Three-Day Remarketing Period result in Failed Remarketings, on the Business Day immediately preceding the Purchase Contract Settlement Date, in lawful money of the United States by certified or cashiers’ check or wire transfer, in each case in immediately available funds payable to or upon the order of the Company. Any cash received by the Collateral Agent will, upon written direction of the Company, be invested promptly by the Collateral Agent in Permitted Investments and paid to the Company on the Purchase Contract Settlement Date in settlement of the Purchase Contract in accordance with the terms of this Agreement and the Pledge Agreement. Any funds received by the Collateral Agent in respect of the investment earnings from the investment in such Permitted Investments, will be distributed to the Purchase Contract Agent when received for payment to the Holder.

 

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(iii)       If a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its intention to effect a Cash Settlement in accordance with Section 5.4(a)(i), or does notify the Purchase Contract Agent of its intention to effect a Cash Settlement in accordance with Section 5.4(a)(i), but fails to deliver cash as required by Section 5.4(a)(ii), such Holder shall be deemed to have consented to the disposition of the Pledged Applicable Ownership Interests in Debentures pursuant to the Remarketing as described below and the Collateral Agent, for the benefit of the Company, will exercise its rights as a secured party with respect to the Pledged Applicable Ownership Interests in Debentures at the direction of the Company to cause the Remarketing of the Debentures underlying such Pledged Applicable Ownership Interests in Debentures.

 

In order to dispose of the Applicable Ownership Interest in Debentures of Corporate Unit Holders who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement with respect to the Purchase Contract Settlement Date as provided in Section 5.4(a)(i) or who have notified the Purchase Contract Agent of their intention to effect a Cash Settlement in accordance with Section 5.4(a)(i), but failed to deliver cash as required by Section 5.4(a)(ii), the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket the Debentures. In order to facilitate the Remarketing, the Purchase Contract Agent shall notify the Remarketing Agents, by 10:00 a.m., New York City time, on the Business Day immediately preceding the Final Three-Day Remarketing Period, of the aggregate amount of Debentures to be remarketed. Concurrently, the Collateral Agent, pursuant to the terms of the Pledge Agreement, will present for Remarketing such aggregate amount of Debentures to the Remarketing Agents. Upon receipt of such notice from the Purchase Contract Agent and the Debentures from the Collateral Agent, the Remarketing Agents will, during the Final Three-Day Remarketing Period, use their commercially reasonable efforts to remarket the Debentures at a price equal to or greater than 100% of the aggregate principal amount of the Debentures remarketed plus the Remarketing Fee. Upon a Successful Remarketing, and after deducting any Remarketing Fee, the Remarketing Agents will remit the remaining portion of the proceeds from such Remarketing to the Collateral Agent. Such portion of the proceeds, equal to the aggregate principal amount of such Debentures, will automatically be applied by the Collateral Agent, in accordance with the Pledge Agreement, to satisfy in full such Corporate Unit Holders’ obligations to pay the Purchase Price for the Common Stock under the related Purchase Contracts on the Purchase Contract Settlement Date. Any proceeds in excess of those required to pay the Purchase Price and the Remarketing Fee will be remitted to the Purchase Contract Agent for payment to the Holders of the related Corporate Units. Corporate Unit Holders whose Debentures are so remarketed will not otherwise be responsible for the payment of any Remarketing Fee in connection therewith.

 

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If there is no Successful Remarketing during the Period for Early Remarketing and if all the Remarketings during the Final Three-Day Remarketing Period result in Failed Remarketings, each Corporate Unit Holder of Applicable Ownership Interests in Debentures (as to which the related Purchase Contract has not been settled with cash) shall be deemed to have exercised its Put Right with respect to its Applicable Ownership Interests in Debentures, and to have elected that a portion of the Put Price equal to the principal amount of the relevant Debenture underlying such Applicable Ownership Interests in Debentures be applied against such Corporate Unit Holder’s obligations to pay the Purchase Price for the Common Stock issued in accordance with each related Purchase Contract on the Purchase Contract Settlement Date, in accordance with the terms of the Pledge Agreement. Following such application, such Holder’s obligations to pay the Purchase Price for the Common Stock will be deemed to be satisfied in full, and upon receipt of written confirmation from the Company that a portion of the Put Price in the amount specified in such notice has been applied to pay the Purchase Price for the Common Stock, the Collateral Agent shall cause the Securities Intermediary to release the Debentures underlying all such Pledged Applicable Ownership Interests in Debentures from the Collateral Account and shall promptly transfer such Debentures to the Company. Thereafter, the Collateral Agent shall promptly remit the remaining portion of the Proceeds of such Holder’s exercise of its Put Right, in excess of the aggregate Purchase Price for Common Stock, if any, to be issued in accordance with each related Purchase Contract to the Purchase Contract Agent for payment to such Holder.

 

(b)          With respect to any Debentures beneficially owned by Holders who have elected Cash Settlement but failed to deliver cash as required in Section 5.4(a)(ii), or with respect to Debentures which are subject to a Failed Remarketing, the Collateral Agent for the benefit of the Company reserves all of its rights as a secured party with respect thereto.

 

(c)         (i)         Unless a Holder of Treasury Units or Corporate Units (if the Treasury Portfolio has replaced the Debentures as components of the Corporate Units) settles the underlying Purchase Contract through the early delivery of cash to the Purchase Contract Agent in the manner described in Section 5.9, each Holder of a Treasury Unit or a Corporate Unit (if the Treasury Portfolio has replaced the Debentures as components of the Corporate Units) must notify the Purchase Contract Agent of its intention to pay in cash the Purchase Price for the shares of Common Stock to be purchased pursuant to the Purchase Contract on the Purchase Contract Settlement Date by presenting and surrendering to the Purchase Contract Agent the Treasury Unit Certificate or Corporate Unit Certificate, as the case may be, with a notice in substantially the form of Exhibit C hereto completed and executed. Such presentation, surrender and notice must be made at or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Purchase Contract Settlement Date. The Purchase Contract Agent shall promptly notify the Collateral Agent of the receipt of such a notice from a Holder intending to make a Cash Settlement.

 

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(ii)        A Holder of a Treasury Unit or Corporate Unit (if the Treasury Portfolio has replaced the Debentures as components of the Corporate Units) who has so notified the Purchase Contract Agent of its intention to make a Cash Settlement in accordance with Section 5.4(c)(i) is required to pay the Purchase Price to the Collateral Agent prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Purchase Contract Settlement Date in lawful money of the United States by certified or cashiers’ check or wire transfer, in each case in immediately available funds payable to or upon the order of the Company. Any cash received by the Collateral Agent will, upon the written direction of the Company, be invested promptly by the Collateral Agent in Permitted Investments and paid to the Company on the Purchase Contract Settlement Date in settlement of the Purchase Contract in accordance with the terms of this Agreement and the Pledge Agreement. Any funds received by the Collateral Agent in respect of the investment earnings from the investment in such Permitted Investments will be distributed to the Purchase Contract Agent when received for payment to the Holder.

 

(iii)       If a Holder of a Treasury Unit or a Corporate Unit (if the Treasury Portfolio has replaced the Debentures as components of Corporate Units) fails to notify the Purchase Contract Agent of its intention to effect a Cash Settlement in accordance with Section 5.4(c)(i), or if such Holder does notify the Purchase Contract Agent as provided in Section 5.4(c)(i) of its intention to pay the Purchase Price in cash, but fails to make such payment as required by Section 5.4(c)(ii), then upon the maturity of the Pledged Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, held by the Collateral Agent on the Business Day immediately prior to the Purchase Contract Settlement Date, the principal amount of the Pledged Treasury Securities or the portion of the Pledged Applicable Ownership Interest in the Treasury Portfolio corresponding to such Purchase Contracts, as the case may be, received by the Collateral Agent will, upon the written direction of the Company, be invested promptly in overnight Permitted Investments. On the Purchase Contract Settlement Date an amount equal to the Purchase Price will be remitted to the Company in settlement of the Purchase Contract in accordance with the terms of this Agreement and the Pledge Agreement without receiving any instructions from the Holder. In the event the sum of the proceeds from the related Pledged Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and the investment earnings earned from such investments is in excess of the aggregate Purchase Price of the Purchase Contracts being settled thereby, the Collateral Agent will distribute such excess to the Purchase Contract Agent for the benefit of the Holder of the related Treasury Unit or Corporate Unit when received.

 

Unless the Treasury Portfolio has replaced the Debentures as components of Corporate Units, Holders shall not be permitted to make Cash Settlements in accordance with the provisions of this Section 5.4 during the period commencing on and including the Business Day prior to the first of the three sequential Remarketing Dates comprising a Three-Day Remarketing Period and ending on and including the Reset Effective Date relating to a Successful Remarketing during such Three-Day Remarketing Period or, if none of the Remarketings during such Three-Day Remarketing Period is successful, the Business Day following the last of the three sequential Remarketing Dates occurring during such Three-Day Remarketing Period.

 

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(d)          Any distribution to Holders of excess funds and interest described above, shall be payable at the Corporate Trust Office maintained for that purpose or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such address as it appears on the Security Register.

 

(e)           The Company shall not be obligated to issue any shares of Common Stock in respect of a Purchase Contract or deliver any certificate therefor to the Holder unless it shall have received payment in full of the Purchase Price for the shares of Common Stock to be purchased thereunder in the manner herein set forth.

 

(f)           Upon Cash Settlement with respect to a Purchase Contract, (i) the Collateral Agent will, in accordance with the terms of the Pledge Agreement, cause the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, or the Pledged Treasury Securities, in each case underlying the relevant Unit, to be released from the Pledge by the Collateral Agent free and clear of any security interest of the Company and transferred to the Purchase Contract Agent for delivery to the Holder thereof or its designee as soon as practicable and (ii) subject to the receipt thereof from the Collateral Agent, the Purchase Contract Agent shall, by book-entry transfer, or other procedures, in accordance with instructions provided by the Holder thereof, Transfer the Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, or such Treasury Securities (or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold the Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, or such Treasury Securities, and any interest or other distribution thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder).

 

(g)           The obligations of the Holders to pay the Purchase Price are non-recourse obligations and, except to the extent satisfied by Early Settlement, Fundamental Change Early Settlement or Cash Settlement or terminated upon a Termination Event, are payable solely out of any Cash Settlement or the proceeds of any Collateral pledged to secure the obligations of the Holders with respect to such Purchase Price and in no event will Holders be liable for any deficiency between the proceeds of Collateral disposition and the Purchase Price.

 

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SECTION 5.5.          Issuance of Shares of Common Stock.

 

Unless a Termination Event shall have occurred, and except with respect to Purchase Contracts with respect to which there has been an Early Settlement or a Fundamental Change Early Settlement, on the Purchase Contract Settlement Date, upon the Company’s receipt of payment in full of the Purchase Price for the shares of Common Stock purchased by the Holders pursuant to the foregoing provisions of this Article V and subject to Section 5.6(b), the Company shall issue and deposit with the Purchase Contract Agent, for the benefit of the Holders of the Outstanding Units, one or more certificates representing the newly-issued shares of Common Stock registered in the name of the Purchase Contract Agent (or its nominee) as custodian for the Holders (such certificates for shares of Common Stock, together with any dividends or other distributions for which both a record date and payment date for such dividend or other distribution has occurred after the Purchase Contract Settlement Date, being hereinafter referred to as the “Purchase Contract Settlement Fund”) to which the Holders are entitled hereunder. Subject to the foregoing, upon surrender of a Certificate to the Purchase Contract Agent on or after the Purchase Contract Settlement Date, together with settlement instructions thereon duly completed and executed, the Holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Common Stock which such Holder is entitled to receive pursuant to the provisions of this Article V (after taking into account all Units then held by such Holder) together with cash in lieu of fractional shares as provided in Section 5.10 and any dividends or other distributions with respect to such shares comprising part of the Purchase Contract Settlement Fund, but without any interest thereon, and any Certificate so surrendered shall forthwith be cancelled. Such shares shall be registered in the name of the Holder or the Holder’s designee as specified in the settlement instructions provided by the Holder to the Purchase Contract Agent. If any shares of Common Stock issued in respect of Purchase Contracts are to be registered to a Person other than the Person in whose name the Certificate evidencing such Purchase Contracts is registered, no such registration shall be made unless the Person requesting such registration has paid any transfer and other taxes required by reason of such registration in a name other than that of the registered Holder of the Certificate evidencing such Purchase Contracts or has established to the satisfaction of the Company that such tax either has been paid or is not payable.

 

SECTION 5.6.          Adjustment of Fixed Settlement Rate; Fundamental Change Early Settlement.

 

(a)           Adjustments for Dividends, Distributions, Stock Splits, Etc.

 

(1)        Stock Dividends. In case the Company shall pay or make a dividend or other distribution on the Common Stock in Common Stock, each Fixed Settlement Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution, shall be increased by dividing such Fixed Settlement Rate by a fraction the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this Section 5.6(a)(1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include any shares issuable in respect of any scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any other distribution on shares of Common Stock held in the treasury of the Company.

 

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(2)        Stock Purchase Rights, Options, Etc. In case the Company shall issue rights, options, warrants or other securities to all holders of its Common Stock (that are not available on an equivalent basis to Holders of the Units upon settlement of the Purchase Contracts forming a part of such Units) entitling such holders of Common Stock, for a period expiring within 45 days from the date of issuance of such rights, options, warrants or other securities, to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price per share of Common Stock on the date fixed for the determination of shareholders entitled to receive such rights, options, warrants or other securities (other than pursuant to any dividend reinvestment plan, share purchase plan or similar plan, including such a plan that provides for purchases of Common Stock by non-shareholders), each Fixed Settlement Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Fixed Settlement Rate by a fraction the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this Section 5.6(a)(2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include any shares issuable in respect of any scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any such rights, options, warrants or other securities in respect of shares of Common Stock held in the treasury of the Company.

 

(3)        Stock Splits, Reverse Splits and Combinations. In case outstanding shares of Common Stock shall be subdivided, split or reclassified into a greater number of shares of Common Stock, each Fixed Settlement Rate in effect at the opening of business on the day following the day upon which such subdivision, split or reclassification becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined or reclassified into a smaller number of shares of Common Stock, each Fixed Settlement Rate in effect at the opening of business on the day following the day upon which such combination or reclassification becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision, split, reclassification or combination becomes effective.

 

(4)        Debt or Asset Distributions. (i) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights, options, warrants or other securities referred to in Section 5.6(a)(2), any dividend or other distribution paid exclusively in cash referred to in Section 5.6(a)(5) (including the Reference Dividend as described therein), any dividend or distribution referred to in Section 5.6(a)(1) and any dividend, shares of capital stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit in the case of a Spin-Off referred to in Section 5.6(a)(4)(ii), each Fixed Settlement Rate in effect at the opening of business on the day following the day on which such dividend or other distribution was effected shall be adjusted so that the same shall equal the rate determined by dividing such Fixed Settlement Rate in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to receive such distribution by a fraction the numerator of which shall be the Current Market Price per share of the Common Stock on the date fixed for such determination less the then fair market value (as determined in good faith by the Board of Directors, whose good faith determination shall be conclusive and described in a Board Resolution) of the portion of the assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator of which shall be such Current Market Price per share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such distribution. In any case in which this Section 5.6(a)(4) is applicable, Section 5.6(a)(2) shall not be applicable and in any case in which this Section 5.6(a)(4)(i) is applicable, Section 5.6(a)(4)(ii) is not applicable.

 

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(ii)        In the case of a Spin-Off, each Fixed Settlement Rate in effect immediately before the close of business on the record date fixed for determination of shareholders of the Company entitled to receive the distribution will be increased by dividing such Fixed Settlement Rate by a fraction, the numerator of which shall be the Current Market Price per share of Common Stock and the denominator of which shall be the Current Market Price per share of Common Stock plus the Fair Market Value of the portion of those shares of capital stock or similar equity interests so distributed applicable to one share of Common Stock. Any adjustment to the Fixed Settlement Rate under this Section 5.6(a)(4)(ii) will occur on the date that is the earlier of (A) the tenth Trading Day from, and including, the effective date of the Spin-Off and (B) in the case of any Spin-Off that is effected simultaneously with an Initial Public Offering of the securities being distributed in the Spin-Off, the date on which the initial public offering price of the securities being offered in such Initial Public Offering is determined. In the event of a Spin-Off that is not effected simultaneously with an Initial Public Offering of the securities being distributed in the Spin-Off, the Fair Market Value of the securities to be distributed to holders of Common Stock means the average of the Closing Prices of those securities over the first ten Trading Days following the effective date of the Spin-Off. For purposes of such a Spin-Off, the Current Market Price of the Common Stock means the average of the Closing Prices of the Common Stock over the first ten Trading Days following the effective date of the Spin-Off.

 

(5)        Cash Distributions. In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock exclusively in cash during any fiscal quarter (excluding any cash that is distributed in a Reorganization Event to which Section 5.6(b) applies or as part of a distribution referred to in Section 5.6(a)(4)) in an amount in excess of $____ per share of Common Stock (the “Reference Dividend”), immediately after the close of business on the date fixed for determination of the holders of Common Stock entitled to receive such distribution, each Fixed Settlement Rate shall be increased by dividing such Fixed Settlement Rate in effect immediately prior to the close of business on the date fixed for determination of the holders of Common Stock entitled to receive such distribution by a fraction, the numerator of which shall be equal to the Current Market Price per share of Common Stock on the date fixed for such determination less the per share amount of the distribution and the denominator of which shall be equal to the Current Market Price per share of Common Stock on the date fixed for such determination minus the Reference Dividend. The Reference Dividend is subject to adjustment (without duplication) from time to time in a manner inversely proportional to any adjustment made to each Fixed Settlement Rate under Section 5.6(a); provided, that no adjustment will be made to the Reference Dividend for any adjustment made pursuant to this Section 5.6(a)(5). In the event that such dividend or distribution is not so paid or made, each Fixed Settlement Rate shall again be adjusted to be the Fixed Settlement Rate which would then be in effect if such dividend or distribution had not been declared.

 

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(6)        Tender Offers and Exchange Offers. In the case that a tender offer or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender offer or exchange offer (as amended through the expiration thereof) shall require the payment to holders of the Common Stock (based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of Reacquired Shares) of an aggregate consideration having a fair market value (as determined in good faith by the Board of Directors, whose good faith determination shall be conclusive and described in a Board Resolution) per share of Common Stock that exceeds the closing price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, then, immediately prior to the opening of business on the Trading Day after the date of the last time (the “Expiration Time”) tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as amended through the Expiration Time), each Fixed Settlement Rate shall be increased by dividing such Fixed Settlement Rate immediately prior to the close of business on the date of the Expiration Time by a fraction (A) the numerator of which shall be equal to (x) the product of (I) the Current Market Price per share of Common Stock on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (y) the amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration, if any, other than cash, payable to holders of Common Stock pursuant to the tender offer or exchange offer (assuming the acceptance, up to any maximum specified in the terms of the tender offer or exchange offer, of Reacquired Shares), and (B) the denominator of which shall be equal to the product of (x) the Current Market Price per share of Common Stock on the date of the Expiration Time and (y) the result of (I) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (II) the number of all shares validly tendered pursuant to the tender offer or exchange offer, not withdrawn and accepted on the date of the Expiration Time (such validly tendered or exchanged shares, up to any such maximum, being referred to as the “Reacquired Shares”).

 

(7)        The reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon a Reorganization Event to which Section 5.6(b) applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of shareholders entitled to receive such distribution” and the “date fixed for such determination” within the meaning of Section 5.6(a)(4), and (b) a subdivision, split or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision or split becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision, split or combination becomes effective” within the meaning of Section 5.6(a)(3).

 

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(8)        The “Current Market Price” per share of Common Stock or any other security on any day means the average of the daily Closing Prices for the 20 consecutive Trading Days preceding the earlier of the day preceding the day in question and the day before the “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this Section 5.6(a)(8), the term “ex date,” when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock or other security, as applicable, trades regular way on the principal U.S. securities exchange or quotation system on which the Common Stock or such other security, as applicable, is listed or quoted at that time, without the right to receive the issuance or distribution.

 

(9)        Calculation of Adjustments. All adjustments to a Fixed Settlement Rate shall be calculated to the nearest 1/10,000th of a share of Common Stock. No adjustment in a Fixed Settlement Rate shall be required unless such adjustment would require an increase or decrease of at least one percent therein; provided, however, that any adjustments which by reason of this subparagraph are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided further, that any such adjustment of less than one percent that has not been made shall be made (x) upon the end of the Company’s fiscal year and (y) upon the applicable settlement date for a Purchase Contract. If an adjustment is made to each Fixed Settlement Rate pursuant to Section 5.6(a)(1), Section 5.6(a)(2), Section 5.6(a)(3), Section 5.6(a)(4), Section 5.6(a)(5), Section 5.6(a)(6), Section 5.6(a)(7) or Section 5.6(a)(10), an adjustment shall also be made to the Applicable Market Value solely to determine which of clauses (a), (b) or (c) of the definition of Settlement Rate in Section 5.1 will apply on the Purchase Contract Settlement Date or any Fundamental Change Early Settlement Date. Such adjustment shall be made by multiplying the Applicable Market Value by the Adjustment Factor. The “Adjustment Factor” means, initially, a fraction the numerator of which shall be the Maximum Settlement Rate immediately after the first adjustment to each Fixed Settlement Rate pursuant to this Section 5.6(a) and the denominator of which shall be the Maximum Settlement Rate immediately prior to such adjustment. Each time an adjustment is required to be made to each Fixed Settlement Rate pursuant to this Section 5.6(a), the Adjustment Factor shall be multiplied by a fraction the numerator of which shall be the Maximum Settlement Rate immediately after such adjustment to each Fixed Settlement Rate pursuant to this Section 5.6(a) and the denominator of which shall be the Maximum Settlement Rate immediately prior to such adjustment. Notwithstanding the foregoing, if any adjustment to each Fixed Settlement Rate is required to be made pursuant to the occurrence of any of the events contemplated by this Section 5.6(a) during the period taken into consideration for determining the Applicable Market Value, the 20 individual Closing Prices used to determine the Applicable Market Value shall be adjusted rather than the Applicable Market Value and the Applicable Market Value shall be determined by (A) multiplying the Closing Prices for Trading Days (during the period used for determining the Applicable Market Value) prior to such adjustment to each Fixed Settlement Rate by the Adjustment Factor in effect prior to such adjustment, (B) multiplying the Closing Prices for Trading Days (during the period used for determining the Applicable Market Value) following such adjustment by the Adjustment Factor reflecting such adjustment, and (C) dividing the sum of all such adjusted Closing Prices by 20.

 

(10)      The Company may, but shall not be required to, make such increases in the Settlement Rate, in addition to those required by this Section, as the Board of Directors considers to be advisable in order to avoid or diminish the effect of any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons.

 

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(11)       If the Company hereafter adopts any shareholder rights plan involving the issuance of preferred share purchase rights or other similar rights (the “Rights”) to all holders of the Common Stock, a Holder shall be entitled to receive upon settlement of any Purchase Contract, in addition to the shares of Common Stock issuable upon settlement of such Purchase Contract, the related Rights for the Common Stock, unless such Rights under the future shareholder rights plan have separated from the Common Stock prior to the time of settlement of such Purchase Contract, in which case each Settlement Rate shall be adjusted as provided in Section 5.6(a)(4) on the date such Rights separate from the Common Stock.

 

(b)          Adjustment for Consolidation, Merger or Other Reorganization Event; Fundamental Change Early Settlement. (i) Subject to the provisions of Section 5.6(b)(ii), upon a Reorganization Event, each Unit shall thereafter, in lieu of a variable number of shares of Common Stock, be settled by delivery of a variable number of Exchange Property Units. An “Exchange Property Unit” represents the right to receive the kind and amount of securities, cash and other property receivable in such Reorganization Event (without any interest thereon, and without any right to dividends or distributions thereon that have a record date that is prior to the applicable settlement date) per share of Common Stock by a holder of Common Stock that is not a Person which is a party to the Reorganization Event (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-Affiliates. In the event holders of Common Stock have the opportunity to elect the form of consideration to be received in such transaction, the Exchange Property Unit that Holders of the Corporate Units or Treasury Units would have been entitled to receive will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make an election. The number of Exchange Property Units to be delivered upon settlement of a Purchase Contract following the effective date of a Reorganization Event shall equal the Settlement Rate, subject to adjustment as provided in this Section 5.6, determined as if the references to “shares of Common Stock” in Section 5.1(a)(i), Section 5.1(a)(ii) and Section 5.1(a)(iii) were to “Exchange Property Units.”

 

In the event of such a Reorganization Event, the Person formed by such consolidation or merger or the Person which acquires the property of the Company as an entirety or substantially as an entirety by sale, transfer, lease or conveyance or the Person which shall acquire the Company pursuant to a share exchange business combination shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that the Holder of each Unit that remains Outstanding after the Reorganization Event (if any) shall have the rights provided by this Section 5.6(b). Such supplemental agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an Exchange Property Unit which, for events subsequent to the effective date of such Reorganization Event, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.6. The above provisions of this Section 5.6(b) shall similarly apply to successive Reorganization Events.

 

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(ii)           Prior to the Purchase Contract Settlement Date, if a Fundamental Change occurs, then following such Fundamental Change a Holder of a Unit will have the right to accelerate and settle (“Fundamental Change Early Settlement”) its Purchase Contract, upon the conditions set forth below, at the Settlement Rate (determined as if the Applicable Market Value equaled the Stock Price), plus an additional make-whole amount of shares (the “Make-Whole Share Amount”); provided, that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.6(b)(ii) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any securities to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel for the Company, which need not be in the form of a written opinion) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering any securities to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement. In the event that a Holder seeks to exercise its Fundamental Change Early Settlement right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective and the Company shall have no further obligation with respect to any such Registration Statement if, notwithstanding using its commercially reasonable efforts, no Registration Statement is then effective.

 

If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments and any Deferred Contract Adjustment Payments, with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement.

 

Within five Business Days of the Effective Date of a Fundamental Change, the Company or, at the request and expense of the Company, if such request is delivered at least two Business Days prior to the date such notice is to be given to Holders of Units (unless a shorter period shall be agreed to by the Purchase Contract Agent), the Purchase Contract Agent, shall provide written notice to Holders of Units of such completion of a Fundamental Change, which shall specify

 

(1)        the deadline for submitting the notice to settle early in cash pursuant to this Section 5.6(b)(ii) and how and where such notice to settle early should be delivered,

 

(2)        the date on which such Fundamental Change Early Settlement shall occur (which date shall be at least ten days after the date of the notice but not later than the earlier of 20 days after the date of such notice or five Business Days prior to the Purchase Contract Settlement Date) (the “Fundamental Change Early Settlement Date”),

 

(3)        the amount of cash payable in respect of the exercise of such Fundamental Change Early Settlement (giving effect to the credit for any accrued and unpaid Contract Adjustment Payments and any Deferred Contract Adjustment Payments as provided in the preceding paragraph ),

 

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(4)        the applicable Settlement Rate,

 

(5)        the Make-Whole Share Amount and

 

(6)       the amount (per share of Common Stock) of cash, securities and other consideration receivable by the Holder, including any amount of Contract Adjustment Payments receivable upon settlement.

 

The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent.

 

Corporate Unit Holders (unless Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Debentures as components of the Corporate Units) and Treasury Unit Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.6(b)(ii) in integral multiples of 20 Corporate Units or 20 Treasury Units, as the case may be. If Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Debentures as components of the Corporate Units, Corporate Unit Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.6(b)(ii) in multiples of _____ Corporate Units (or such other number of Corporate Units as may be determined by the Remarketing Agents upon a Successful Remarketing if the Reset Effective Date is not a Payment Date). Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.1 shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.6(b)(ii).

 

In order to exercise the right to effect Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to the Purchase Contract Agent at the Corporate Trust Office, no later than 4:00 p.m., New York City time, on the third Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early/Fundamental Change Early Settlement on the reverse thereof duly completed and accompanied by payment (payable to the Company in immediately available funds) in an amount equal to the product of (1) the Stated Amount times (2) the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement.

 

Upon receipt of any such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, and notify the Collateral Agent that all the conditions necessary for a Fundamental Change Early Settlement by a Holder of Units have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price.

 

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If a Holder properly effects a Fundamental Change Early Settlement in accordance with the provisions of this Section 5.6(b)(ii), the Company will deliver (or will cause the Collateral Agent to deliver) to the Holder on the Fundamental Change Early Settlement Date:

 

(A)       the kind and amount of securities, cash and other property receivable upon such Fundamental Change by a holder of the number of shares of Common Stock issuable on account of each Purchase Contract if the Purchase Contract Settlement Date had occurred immediately prior to such Fundamental Change (based on the Settlement Rate in effect at such time plus the Make-Whole Share Amount), assuming such holder of Common Stock is not a Constituent Person or an Affiliate of a Constituent Person to the extent such Fundamental Change provides for different treatment of Common Stock held by Affiliates of the Company and non-Affiliates. In the event holders of Common Stock have the opportunity to elect the form of consideration to be received in the Fundamental Change, the kind and amount of securities, cash and/or other property receivable by Holders of the Corporate Units or Treasury Units exercising their right to effect a Fundamental Change Early Settlement will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make an election. For the avoidance of doubt, for the purposes of determining the Applicable Market Value (in connection with determining the appropriate Settlement Rate to be applied in the foregoing sentence), the date of the closing of the Fundamental Change shall be deemed to be the Purchase Contract Settlement Date;

 

(B)       the Applicable Ownership Interest in Debentures, the Applicable Ownership Interests in the Treasury Portfolio or the Treasury Securities, as the case may be, related to the Purchase Contracts with respect to which the Holder is effecting a Fundamental Change Early Settlement;

 

(C)       any accrued and unpaid Contract Adjustment Payments and any Deferred Contract Adjustment Payments (to the extent such payments are not applied as a credit to the Purchase Price in connection with the settlement of the Purchase Contracts); and

 

(D)       if so required under the Securities Act, a Prospectus as contemplated by this Section 5.6(b)(ii).

 

The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing provisions will continue to remain Outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof.

 

The Make-Whole Share Amounts applicable to a Fundamental Change Early Settlement will be determined by reference to the table below, based on the date on which the Fundamental Change becomes effective (the “Effective Date”) and the price (the “Stock Price”) paid per share for Common Stock in such Fundamental Change, which will be (a) in the case of a Fundamental Change described in clause (ii) of the definition of such term and the holders of Common Stock receive only cash in such transaction, the Stock Price paid per share will be the cash amount paid per share; or (b) otherwise, the Stock Price paid per share will be the average of the Closing Prices of the Common Stock on the 20 Trading Days prior to, but not including, the Effective Date of such Fundamental Change:

 

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Effective Date

     
                 

Stock Price

       
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 

 

The Stock Prices set forth in the first column of the table will be adjusted upon the occurrence of certain events requiring adjustments to each Fixed Settlement Rate pursuant to Section 5.6(a).

 

Each of the Make-Whole Share Amounts set forth in the table will be subject to adjustment in the same manner as the Fixed Settlement Rates as set forth in Section 5.6(a).

 

If the Stock Price or Effective Date applicable to a Fundamental Change is not expressly set forth on the table, then the Make-Whole Share Amount will be determined as follows:

 

(1)         if the Stock Price is between two Stock Price amounts on the table or the Effective Date is between two dates on the table, the Make-Whole Share Amount will be determined by straight-line interpolation between the Make-Whole Share Amounts set forth for the higher and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year;

 

(2)         if the Stock Price is in excess of $____ per share (subject to adjustment as set forth in Section 5.6(a)), then the Make-Whole Share Amount shall be zero; and

 

(3)         if the Stock Price is less than $____ per share (subject to adjustment as set forth in Section 5.6(a)) (the “Minimum Stock Price”), then the Make-Whole Share Amount shall be determined as if the Stock Price equaled the Minimum Stock Price, using straight-line interpolation, as described in clause (1) above, if the Effective Date is between two dates on the table.

 

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(c)         No adjustment to the Settlement Rate need be made if Holders may participate in the transaction that would otherwise give rise to an adjustment, so long as the distributed assets or securities the Holders would receive upon settlement of the Purchase Contracts, if convertible, exchangeable, or exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 45 days following settlement of the Purchase Contracts.

 

(d)         The Fixed Settlement Rate shall not be adjusted:

 

(i)         upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the direct investment in Common Stock or the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;

 

(ii)        upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant compensation or other benefit plan or program of or assumed by the Company or any of its subsidiaries;

 

(iii)       upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or any exercisable, exchangeable or convertible security outstanding as of the date the Units were first issued;

 

(iv)       for a change in the par value or a change to no par value of the Common Stock;

 

(v)        for accumulated and unpaid dividends, other than to the extent contemplated by Section 5.6(a) hereof; or

 

(vi)         upon the issuance of shares of Common Stock or securities convertible into, or exercisable or exchangeable for, Common Stock, in public or private transactions, for consideration in cash or property, at any price or for any benefit the Company deems appropriate.

 

(e)          All calculations and determinations pursuant to this Section 5.6 shall be made by the Company or its agent and the Purchase Contract Agent shall have no responsibility with respect to any such calculation or determination.

 

SECTION 5.7.          Notice of Adjustments and Certain Other Events.

 

(a)          Whenever the Fixed Settlement Rates are adjusted as herein provided, the Company shall:

 

(i)         forthwith compute the Settlement Rate in accordance with Section 5.6 and prepare and transmit to the Purchase Contract Agent a Company Certificate setting forth the adjusted Settlement Rate, the method of calculation thereof in reasonable detail, and the facts requiring such adjustment and upon which such adjustment is based; and

 

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(ii)        within ten Business Days following the occurrence of an event that requires an adjustment to the Settlement Rate pursuant to Section 5.6 (or if the Company is not aware of such occurrence, as soon as practicable after becoming so aware), provide a written notice to the Holders of the Units of the occurrence of such event and a statement in reasonable detail setting forth the method by which the adjustment to the Settlement Rate was determined and setting forth the adjusted Settlement Rate.

 

(b)           The Purchase Contract Agent shall not at any time be under any duty or responsibility to any Holder of Units to determine whether any facts exist which may require any adjustment of the Settlement Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same. The Purchase Contract Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at the time be issued or delivered with respect to any Purchase Contract, and the Purchase Contract Agent makes no representation with respect thereto. The Purchase Contract Agent shall not be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or other securities or property pursuant to a Purchase Contract or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article V.

 

SECTION 5.8.          Termination Event; Notice.

 

The Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Adjustment Payments or any Deferred Contract Adjustment Payments, and the rights and obligations of the Holders to purchase shares of Common Stock, will immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Company, if, on or prior to the Purchase Contract Settlement Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than two Business Days thereafter give written notice thereof to the Purchase Contract Agent, the Collateral Agent, and to the Holders at their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Units shall thereafter represent the right to receive the Debentures underlying the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, forming a part of such Units in the case of Corporate Units, or Treasury Securities in the case of Treasury Units, in accordance with the provisions of Section 4.3 of the Pledge Agreement.

 

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SECTION 5.9.          Early Settlement.

 

(a)           A holder of Corporate Units may settle the related Purchase Contracts in their entirety at any time on or prior to the seventh Business Day immediately preceding the Purchase Contract Settlement Date, in the manner described herein, but only in integral multiples of 20 Corporate Units; provided, however that a Holder of Corporate Units will not be permitted to settle the related Purchase Contracts during any period commencing on and including the Business Day preceding the first of the three sequential Remarketing Dates comprising any Three-Day Remarketing Period, and ending on and including, in the case of a Successful Remarketing during such Three-Day Remarketing Period, the Reset Effective Date, or, if none of the Remarketings during such Three-Day Remarketing Period is successful, the Business Day following the last of the three sequential Remarketing Dates occurring during such Three-Day Remarketing Period; provided, further, if the Treasury Portfolio has become a component of the Corporate Units, Holders of Corporate Units may settle early only in integral multiples of _____ Corporate Units at any time on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date (or such other number of Corporate Units as may be determined by the Remarketing Agents upon a Successful Remarketing of the Debentures if the Reset Effective Date is not a Payment Date). A holder of Treasury Units may settle the related Purchase Contracts in their entirety at any time on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date in the manner described herein (an “Early Settlement”) but only in integral multiples of 20 Treasury Units. The right to Early Settlement is subject to there being in effect a Registration Statement covering the shares of Common Stock to be issued and delivered in respect of the Purchase Contracts being settled, if such a Registration Statement is required (in the view of counsel for the Company, which need not be in the form of a written opinion) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering any securities to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Early Settlement. In the event that a Holder seeks to exercise its Early Settlement right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective and the Company shall have no further obligation with respect to any such Registration Statement if, notwithstanding using its commercially reasonable efforts, no Registration Statement is then effective. Upon Early Settlement, (i) the Holder’s right to receive additional Contract Adjustment Payments in respect of such Purchase Contracts will terminate and (ii) no adjustment will be made to or for the Holder on account of Deferred Contract Adjustment Payments, or any amount accrued in respect of Contract Adjustment Payments. In order to exercise the right to effect any Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver such Certificate to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early/Fundamental Change Early Settlement on the reverse thereof duly completed and executed and accompanied by payment (payable to the Company in immediately available funds in an amount (the “Early Settlement Amount”) equal to the sum of

 

(i)         the product of (A) the Stated Amount times (B) the number of Purchase Contracts with respect to which the Holder has elected to effect Early Settlement, plus

 

(ii)        if such delivery is made with respect to any Purchase Contracts during the period from the close of business on any Record Date relating to any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Adjustment Payments payable, if any, on such Payment Date with respect to such Purchase Contracts; provided, that no payment is required if the Company has elected to defer the Contract Adjustment Payments which would otherwise be payable on the Payment Date.

 

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Except as provided in the immediately preceding sentence and subject to Section 5.2(d), no payment or adjustment shall be made upon Early Settlement of any Purchase Contract on account of any Contract Adjustment Payments accrued on such Purchase Contract or on account of any dividends on the Common Stock. In order for any of the foregoing requirements to be considered satisfied or effective with respect to a Purchase Contract underlying any Unit on or by a particular Business Day, such requirement must be met at or prior to 5:00 p.m., New York City time, on such Business Day; the first Business Day on which all of the foregoing requirements have been satisfied by 5:00 p.m., New York City time, shall be the “Early Settlement Date” with respect to such Unit. Upon Early Settlement of the Purchase Contracts, the rights of the Holders to receive and the obligation of the Company to pay any Contract Adjustment Payments (including any accrued and unpaid Contract Adjustment Payments) with respect to such Purchase Contracts shall immediately and automatically terminate, except that the Holders will receive any accrued and unpaid Contract Adjustment Payments if the Early Settlement Date falls after a Record Date relating to any Payment Date and prior to the opening of business on such Payment Date.

 

(b)          Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Company shall issue, and the Holder shall be entitled to receive, a number of newly-issued shares of Common Stock (or in the case of an Early Settlement following a Reorganization Event, a number of Exchange Property Units) equal to the Minimum Settlement Rate for each Purchase Contract as to which Early Settlement is effected.

 

(c)           No later than the third Business Day after the applicable Early Settlement Date the Company shall cause (i) the shares of Common Stock issuable upon Early Settlement of Purchase Contracts to be issued and a certificate or certificates for the full number of such shares of Common Stock together with payment in lieu of any fraction of a share, as provided in Section 5.10, to be delivered to the Purchase Contract Agent at the Corporate Trust Office, and (ii) the related Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, in the case of Corporate Units, or the related Treasury Securities, in the case of Treasury Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Purchase Contract Agent for delivery to the Holder thereof or its designee.

 

(d)          Upon Early Settlement of any Purchase Contracts, and subject to receipt of shares of Common Stock from the Company and the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or Treasury Securities, as the case may be, from the Collateral Agent or the Purchase Contract Agent, as applicable, shall, in accordance with the instructions provided by the Holder of such Purchase Contracts on the applicable form of Election to Settle Early/Fundamental Change Early Settlement on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Applicable Ownership Interest in Debentures, the Applicable Ownership Interest in the Treasury Portfolio or the Treasury Securities, as the case may be, forming a part of the related Units, and (ii) deliver to the Holder a certificate or certificates for the full number of shares of Common Stock issuable upon such Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.10.

 

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(e)           In the event that Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Early Settlement the Company shall execute and the Purchase Contract Agent shall authenticate, countersign and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Early Settlement was not effected.

 

SECTION 5.10.        No Fractional Shares.

 

No fractional shares or scrip representing fractional shares of Common Stock shall be issued or delivered upon settlement on the Purchase Contract Settlement Date or upon Early Settlement or Fundamental Change Early Settlement of any Purchase Contracts. If Certificates evidencing more than one Purchase Contract shall be surrendered for settlement at one time by the same Holder, the number of full shares of Common Stock which shall be delivered upon settlement shall be computed on the basis of the aggregate number of Purchase Contracts evidenced by the Certificates so surrendered. Instead of any fractional share of Common Stock which would otherwise be deliverable upon settlement of any Purchase Contracts on the Purchase Contract Settlement Date or upon Early Settlement or Fundamental Change Early Settlement, the Company, through the Purchase Contract Agent, shall make a cash payment in respect of such fractional interest in an amount equal to such fractional share times (i) the Threshold Appreciation Price, in the case of an Early Settlement or (ii) the Applicable Market Value calculated as if the date of such settlement were the Purchase Contract Settlement Date, in all other circumstances. The Company shall provide the Purchase Contract Agent from time to time with sufficient funds to permit the Purchase Contract Agent to make all cash payments required by this Section 5.10 in a timely manner.

 

SECTION 5.11.        Charges and Taxes.

 

The Company will pay all stock transfer and similar taxes attributable to the initial issuance and delivery of the shares of Common Stock pursuant to the Purchase Contracts; provided, however, that the Company shall not be required to pay any such tax or taxes which may be payable in respect of any exchange of or substitution for a Certificate evidencing a Unit or any issuance of a share of Common Stock in a name other than that of the registered Holder of a Certificate surrendered in respect of the Units evidenced thereby, other than in the name of the Purchase Contract Agent, as custodian for such Holder, and the Company shall not be required to issue or deliver such Common Stock share certificates or Certificates unless or until the Person or Persons requesting the transfer or issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid or that no such tax is due.

 

ARTICLE VI

Remedies

 

SECTION 6.1.          Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase Shares of Common Stock.

 

The Holder of any Corporate Unit or Treasury Unit shall have the right, which is absolute and unconditional (subject to the right of the Company to defer payment thereof pursuant to Section 5.3, the prepayment of Contract Adjustment Payments pursuant to Section 5.9(a), the forfeiture of any Contract Adjustment Payments upon Early Settlement pursuant to Section 5.9(b), and the forfeiture of any Contract Adjustment Payments or Deferred Contract Adjustment Payments upon the occurrence of a Termination Event), to receive payment of each installment of the Contract Adjustment Payments with respect to the Purchase Contract constituting a part of such Unit on the respective Payment Date for such Unit and to purchase Common Stock pursuant to such Purchase Contract and, in each such case, to institute suit for the enforcement of any such payment and right to purchase Common Stock, and such rights shall not be impaired without the consent of such Holder.

 

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SECTION 6.2.          Restoration of Rights and Remedies.

 

If any Holder has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and in every such case, subject to any determination in such proceeding, the Company and such Holder shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had been instituted.

 

SECTION 6.3.          Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates in the last paragraph of Section 3.10, no right or remedy herein conferred upon or reserved to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.4.          Delay or Omission Not Waiver.

 

No delay or omission of any Holder to exercise any right or remedy upon a Default shall impair any such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article VI or by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders.

 

SECTION 6.5.          Undertaking for Costs.

 

All parties to this Agreement agree, and each Holder of a Unit, by its acceptance of such Unit shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Agreement, or in any suit against the Purchase Contract Agent for any action taken, suffered or omitted by it as Purchase Contract Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, that the provisions of this Section 6.5 shall not apply to any suit instituted by the Company, to any suit instituted by the Purchase Contract Agent, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder for the enforcement of any Contract Adjustment Payments or interest on any Debentures owed pursuant to such Holder’s Applicable Ownership Interests in Debentures on or after the respective Payment Date therefor (subject to Section 5.3) in respect of any Unit held by such Holder, or for enforcement of the right to purchase shares of Common Stock under the Purchase Contracts comprising part of any Unit held by such Holder.

 

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SECTION 6.6.          Waiver of Stay or Extension Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Purchase Contract Agent or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE VII

The Purchase Contract Agent

 

SECTION 7.1.          Certain Duties and Responsibilities.

 

(a)          The Purchase Contract Agent:

 

(1)         undertakes to perform, with respect to the Units, such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Purchase Contract Agent; and

 

(2)         may, with respect to the Units, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in the absence of bad faith on the part of the Purchase Contract Agent, upon certificates or opinions furnished to the Purchase Contract Agent and conforming to the requirements of this Agreement, but in the case of any certificates or opinions which by any provision hereof are specifically required to be furnished to the Purchase Contract Agent, the Purchase Contract Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

(b)          No provision of this Agreement shall be construed to relieve the Purchase Contract Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1)        this Section 7.1(b) shall not be construed to limit the effect of Section 7.1(a);

 

(2)        the Purchase Contract Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Purchase Contract Agent was negligent in ascertaining the pertinent facts; and

 

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(3)        no provision of this Agreement shall require the Purchase Contract Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.

 

(c)           Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Purchase Contract Agent shall be subject to the provisions of this Section 7.1.

 

(d)           The Purchase Contract Agent is authorized to execute, deliver and perform the Pledge Agreement in its capacity as Purchase Contract Agent and to grant the Pledge. The Purchase Contract Agent shall be entitled to all of the rights, privileges, immunities and indemnities contained in this Agreement with respect to any duties of the Purchase Contract Agent under, or actions taken by the Purchase Contract Agent pursuant to, such Pledge Agreement and any Remarketing Agreement entered into by the Purchase Contract Agent to effectuate Section 5.4 hereof or Section 6.3 of the Pledge Agreement.

 

(e)           In case a Default has occurred (that has not been cured or waived) and the Purchase Contract Agent has been notified as contemplated by Section 7.3(j), the Purchase Contract Agent shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

 

(f)           At the request of the Company, the Purchase Contract Agent is authorized to execute, deliver and perform one or more Remarketing Agreements to, among other things, effectuate Section 5.4.

 

SECTION 7.2.          Notice of Default.

 

Within 90 days after the occurrence of any Default hereunder of which a Responsible Officer of the Purchase Contract Agent has been notified as contemplated in Section 7.3(j), the Purchase Contract Agent shall transmit by mail to the Company, and to the Holders of Units as their names and addresses appear in the Security Register, notice of such Default hereunder, unless such Default shall have been cured or waived; provided, that, except for a Default in any payment obligation hereunder, the Purchase Contract Agent shall be protected in withholding such notice if and so long as a Responsible Officer of the Purchase Contract Agent in good faith determines that the withholding of such notice is in the interests of the Holders of the Units.

 

SECTION 7.3.          Certain Rights of Purchase Contract Agent.

 

Subject to the provisions of Section 7.1:

 

(a)           the Purchase Contract Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

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(b)          any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Certificate, Issuer Order or Issuer Request, and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;

 

(c)          whenever in the administration of this Agreement the Purchase Contract Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting to take any action hereunder, the Purchase Contract Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a Company Certificate;

 

(d)          the Purchase Contract Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(e)           the Purchase Contract Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Purchase Contract Agent, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the execution, delivery and performance of the Purchase Contracts as it may see fit, and, if the Purchase Contract Agent shall determine to make such further inquiry or investigation, it shall be given a reasonable opportunity to examine the books, records and premises of the Company personally or by an agent or attorney;

 

(f)            the Purchase Contract Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or an Affiliate and the Purchase Contract Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney or an Affiliate appointed with due care by it hereunder;

 

(g)          the rights, privileges, protections, immunities and benefits given to the Purchase Contract Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Purchase Contract Agent in each of its capacities hereunder;

 

(h)           the Purchase Contract Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any of the Holders pursuant to this Agreement, unless such Holders shall have offered to the Purchase Contract Agent security or indemnity satisfactory to the Purchase Contract Agent against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(i)            the Purchase Contract Agent shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

 

(j)           the Purchase Contract Agent shall not be deemed to have notice of any adjustment to the Fixed Settlement Rate, the occurrence of a Termination Event or any Default hereunder unless written notice of any such adjustment, occurrence or event which is in fact such a Default is received by the Purchase Contract Agent at the Corporate Trust Office of the Purchase Contract Agent;

 

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(k)           the Purchase Contract Agent may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement; and

 

(l)            in no event shall the Purchase Contract Agent be responsible or liable for special or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Purchase Contract Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

SECTION 7.4.          Not Responsible for Recitals or Issuance of Units.

 

The recitals contained herein and in the Certificates shall be taken as the statements of the Company and the Purchase Contract Agent assumes no responsibility for their accuracy. The Purchase Contract Agent makes no representations as to the validity or sufficiency of either this Agreement or of the Units, or of the Pledge Agreement, the Pledge or the Remarketing Agreement. The Purchase Contract Agent shall not be accountable for the use or application by the Company of the proceeds in respect of the Purchase Contracts.

 

SECTION 7.5.          May Hold Units.

 

Any Security Registrar or any other agent of the Company, or the Purchase Contract Agent and its Affiliates, in their individual or any other capacity, may become the owner or pledgee of Units and may otherwise deal with the Company, the Collateral Agent or any other Person with the same rights it would have if it were not Security Registrar or such other agent, or the Purchase Contract Agent. The Company or NEE Capital may become the owner or pledgee of Units.

 

SECTION 7.6.          Money Held in Custody.

 

Money held by the Purchase Contract Agent in custody hereunder need not be segregated from the Purchase Contract Agent’s other funds except to the extent required by law or provided herein. The Purchase Contract Agent shall be under no obligation to invest or pay interest on any money received by it hereunder except as otherwise provided herein or agreed in writing with the Company.

 

SECTION 7.7.          Compensation and Reimbursement.

 

The Company agrees:

 

(a)        to pay to the Purchase Contract Agent from time to time such compensation for all services rendered by it hereunder as the parties shall agree from time to time in writing (which compensation shall not be limited by any provisions of law in regards to the compensation of a trustee of an express trust);

 

(b)        except as otherwise expressly provided herein, to reimburse the Purchase Contract Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Purchase Contract Agent in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance incurred or made as a result of its negligence or bad faith; and

 

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(c)        to indemnify the Purchase Contract Agent and any predecessor Purchase Contract Agent and each of its directors, officers, agents and employees (collectively, with the Purchase Contract Agent, the “Indemnitees”) for, and to hold each Indemnitee harmless against, any loss, liability or expense incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration or the performance of its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder.

 

“Purchase Contract Agent” for purposes of this Section 7.7 shall include any predecessor Purchase Contract Agent; provided, however, that the negligence or bad faith of any Purchase Contract Agent hereunder shall not affect the rights of any other Purchase Contract Agent hereunder.

 

When the Purchase Contract Agent incurs expenses or renders services in an action or proceeding commenced pursuant to Section 4.3 of the Pledge Agreement upon the occurrence of a Termination Event, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.

 

The provisions of this Section 7.7 shall survive the resignation and removal of the Purchase Contract Agent, the satisfaction or discharge of the Units and the Purchase Contracts and the termination of this Agreement and the Pledge Agreement.

 

SECTION 7.8.          Corporate Purchase Contract Agent Required; Eligibility.

 

There shall at all times be a Purchase Contract Agent hereunder which shall be (i) not an Affiliate of the Company and (ii) a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having (or being a member of a bank holding company having) a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 7.8, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Purchase Contract Agent shall cease to be eligible in accordance with the provisions of this Section 7.8, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VII.

 

SECTION 7.9.          Resignation and Removal; Appointment of Successor.

 

(a)           No resignation or removal of the Purchase Contract Agent and no appointment of a successor Purchase Contract Agent pursuant to this Article VII shall become effective until the acceptance of appointment by the successor Purchase Contract Agent in accordance with the applicable requirements of Section 7.10.

 

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(b)          The Purchase Contract Agent may resign at any time by giving written notice thereof to the Company 60 days prior to the effective date of such resignation. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 7.10 shall not have been delivered to the Purchase Contract Agent within 30 days after the giving of such notice of resignation, the resigning Purchase Contract Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.

 

(c)          The Purchase Contract Agent may be removed at any time by Act of the Holders of a majority in number of the Outstanding Units delivered to the Purchase Contract Agent and the Company. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 7.10 shall not have been delivered to the Purchase Contract Agent within 30 days after the receipt of such Act of the Holders, the Purchase Contract Agent being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.

 

(d)           If at any time

 

(1)        the Purchase Contract Agent fails to comply with Section 310(b) of the TIA, after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Unit for at least six months,

 

(2)        the Purchase Contract Agent shall cease to be eligible under Section 7.8 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3)        the Purchase Contract Agent shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Purchase Contract Agent or of its property shall be appointed or any public officer shall take charge or control of the Purchase Contract Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (i) the Company by a Board Resolution may remove the Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Purchase Contract Agent and the appointment of a successor Purchase Contract Agent.

 

(e)           If the Purchase Contract Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the Corporate Trust Office of the Purchase Contract Agent for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Purchase Contract Agent and shall comply with the applicable requirements of Section 7.10. If no successor Purchase Contract Agent shall have been so appointed by the Company and accepted appointment in the manner required by Section 7.10, the Purchase Contract Agent or any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.

 

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(f)           The Company shall give, or shall cause such successor Purchase Contract Agent to give, notice of each resignation and each removal of the Purchase Contract Agent and each appointment of a successor Purchase Contract Agent by mailing written notice of such event by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Purchase Contract Agent and the address of its Corporate Trust Office.

 

(g)           If the Purchase Contract Agent has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the TIA, the Purchase Contract Agent and the Company shall in all respects comply with the provisions of Section 310(b) of the TIA.

 

SECTION 7.10.        Acceptance of Appointment by Successor.

 

(a)           In case of the appointment hereunder of a successor Purchase Contract Agent, every such successor Purchase Contract Agent so appointed shall execute, acknowledge and deliver to the Company and to the retiring Purchase Contract Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Purchase Contract Agent shall become effective and such successor Purchase Contract Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Purchase Contract Agent; but, on the request of the Company or the successor Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Purchase Contract Agent all the rights, powers and trusts of the retiring Purchase Contract Agent and shall duly assign, transfer and deliver to such successor Purchase Contract Agent all property and money held by such retiring Purchase Contract Agent hereunder.

 

(b)          Upon request of any such successor Purchase Contract Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Purchase Contract Agent all such rights, powers and trusts referred to in Section 7.10(a).

 

(c)           No successor Purchase Contract Agent shall accept its appointment unless at the time of such acceptance such successor Purchase Contract Agent shall be qualified and eligible under this Article VII.

 

SECTION 7.11.        Merger, Conversion, Consolidation or Succession to Business.

 

Any Person into which the Purchase Contract Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Purchase Contract Agent shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Purchase Contract Agent, shall be the successor of the Purchase Contract Agent hereunder, provided such Person shall be otherwise qualified and eligible under this Article VII, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the Purchase Contract Agent then in office, any successor by merger, conversion or consolidation to such Purchase Contract Agent may adopt such authentication and execution and deliver the Certificates so authenticated and executed with the same effect as if such successor Purchase Contract Agent had itself authenticated and executed such Securities. The Purchase Contract Agent will give prompt written notice to the Company of such merger, conversion or consolidation.

 

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SECTION 7.12.        Preservation of Information; Communications to Holders.

 

(a)           The Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders received by the Purchase Contract Agent in its capacity as Security Registrar.

 

(b)           If three or more Holders (herein referred to as “Applicants”) apply in writing to the Purchase Contract Agent, and furnish to the Purchase Contract Agent reasonable proof that each such Applicant has owned a Unit for a period of at least six months preceding the date of such application, and such application states that the Applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Units and is accompanied by a copy of the form of proxy or other communication which such Applicants propose to transmit, then the Purchase Contract Agent shall mail to all the Holders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Purchase Contract Agent of the materials to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing.

 

SECTION 7.13.        No Obligations of Purchase Contract Agent.

 

Except to the extent otherwise provided in this Agreement, the Pledge Agreement or the Remarketing Agreement, the Purchase Contract Agent assumes no obligations and shall not be subject to any liability under this Agreement, the Pledge Agreement, the Remarketing Agreement or any Purchase Contract in respect of the obligations of the Holder of any Unit thereunder. The Company agrees, and each Holder of a Certificate, by its acceptance thereof, shall be deemed to have agreed, that the Purchase Contract Agent’s execution of the Certificates on behalf of the Holders shall be solely as agent and attorney-in-fact for the Holders, and that the Purchase Contract Agent shall have no obligation to perform such Purchase Contracts on behalf of the Holders, except to the extent expressly provided in Article V hereof.

 

SECTION 7.14.        Tax Compliance.

 

(a)           The Purchase Contract Agent, on its own behalf and on behalf of the Company, will comply with all applicable certification, information reporting and withholding (including “backup” withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to (i) any payments made with respect to the Units or (ii) the issuance, delivery, holding, transfer, redemption or exercise of rights under the Units. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent.

 

(b)          The Purchase Contract Agent shall comply with any written direction received from the Company with respect to the execution or certification of any required documentation and the application of such requirements to particular payments or Holders or in other particular circumstances, and may for purposes of this Agreement conclusively rely on any such direction in accordance with the provisions of Section 7.1(a)(2) hereof.

 

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(c)           The Purchase Contract Agent shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on written request, to the Company or its authorized representative within a reasonable period of time after receipt of such request.

 

(d)          Without limiting the foregoing, the Purchase Contract Agent shall be entitled to deduct FATCA Withholding Tax (as hereinafter defined), and shall have no obligation to gross-up any payment hereunder or to pay any additional amount as a result of such FATCA Withholding Tax. Each of the Company and the Purchase Contract Agent agrees to cooperate and to provide the other with such information as each may have in its possession to enable the determination of whether any payments pursuant to this Agreement are subject to the withholding requirements described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof (“FATCA Withholding Tax”).

 

ARTICLE VIII

Supplemental Agreements

 

SECTION 8.1.          Supplemental Agreements Without Consent of Holders.

 

Without the consent of any Holders, the Company and the Purchase Contract Agent, at any time and from time to time, may enter into one or more agreements supplemental hereto, in form satisfactory to the Company and the Purchase Contract Agent, for any of the following purposes:

 

(i)         to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Certificates;

 

(ii)        to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company;

 

(iii)       to evidence and provide for the acceptance of appointment hereunder by a successor Purchase Contract Agent;

 

(iv)       to make provision with respect to the rights of Holders pursuant to the requirements of Section 5.6(b); or

 

(v)        to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provisions herein, or to make any other provisions with respect to such matters or questions arising under this Agreement; provided such action shall not adversely affect the interests of the Holders in any material respect; and provided further that any amendment made solely to conform the provisions of this Agreement to the description of the Units, the Purchase Contracts and the other components of the Units contained in the prospectus supplement, dated ________________, relating to the Units will not be deemed to adversely affect the interests of the Holders.

 

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SECTION 8.2.          Supplemental Agreements with Consent of Holders.

 

With the consent of the Holders of not less than a majority of the outstanding Purchase Contracts voting together as one class, by Act of said Holders delivered to the Company and the Purchase Contract Agent, the Company, when authorized by a Board Resolution, and the Purchase Contract Agent may enter into an agreement or agreements supplemental hereto for the purpose of modifying in any manner the terms of the Purchase Contracts, or the provisions of this Agreement or the rights of the Holders in respect of the Units; provided, however, that, except as contemplated herein, no such supplemental agreement shall, without the consent of the Holder of each Outstanding Unit affected thereby,

 

(a)        change any Payment Date;

 

(b)        change the amount or the type of Collateral required to be Pledged to secure a Holder’s obligations under a Purchase Contract;

 

(c)        impair the right of the Holder of any Equity Unit to receive distributions on the related Collateral (except for the rights of Holders of Corporate Units to substitute the Treasury Securities for the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio or the rights of holders of Treasury Units to substitute Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio for the Pledged Treasury Securities), or otherwise adversely affect the Holder’s rights in or to such Collateral;

 

(d)        reduce any Contract Adjustment Payments or any Deferred Contract Adjustment Payment, or change any place where, or the coin or currency in which, any Contract Adjustment Payment is payable;

 

(e)        impair the right to institute suit for the enforcement of any Purchase Contract, including any Contract Adjustment Payments or Deferred Contract Adjustment Payments;

 

(f)        except as required pursuant to Section 5.6, reduce the number of shares of Common Stock to be purchased pursuant to any Purchase Contract or the amount of any other security or other property to be purchased under a Purchase Contract, increase the price to purchase shares of Common Stock or any other security or other property upon settlement of any Purchase Contract, change the Purchase Contract Settlement Date or the right to Early Settlement or Fundamental Change Early Settlement or otherwise adversely affect the Holder’s rights under any Purchase Contract in any material respect; or

 

(g)        reduce the percentage of the outstanding Purchase Contracts the consent of whose Holders is required for any modification or amendment to the provisions of this Agreement or the Purchase Contracts;

 

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provided, that if any amendment or proposal referred to above would adversely affect only the Corporate Units or the Treasury Units, then only Holders of the affected class of Units as of the record date for the Holders entitled to vote thereon will be entitled to vote on or consent to such amendment or proposal, and such amendment or proposal shall not be effective except with the consent of Holders of not less than a majority of such class; provided further, however, that no such agreement, whether with or without the consent of Holders, shall affect Section 3.16 hereof.

 

It shall not be necessary for any Act of the Holders under this Section 8.2 to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall approve the substance thereof. 

 

SECTION 8.3.          Execution of Supplemental Agreements.

 

In executing, or accepting the additional agencies created by, any supplemental agreement permitted by this Article VIII or the modifications thereby of the agencies created by this Agreement, the Purchase Contract Agent shall be provided with, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement. The Purchase Contract Agent may, but shall not be obligated to, enter into any such supplemental agreement which affects the Purchase Contract Agent’s own rights, duties or immunities under this Agreement or otherwise. The Collateral Agent shall receive copies of any supplemental agreements entered into pursuant to this Article VIII.

 

SECTION 8.4.          Effect of Supplemental Agreements.

 

Upon the execution of any supplemental agreement under this Article VIII, this Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of this Agreement for all purposes; and every Holder of Certificates theretofore or thereafter authenticated, executed on behalf of the Holders and delivered hereunder shall be bound thereby.

 

SECTION 8.5.          Reference to Supplemental Agreements.

 

Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any supplemental agreement pursuant to this Article VIII may, and shall if required by the Purchase Contract Agent, bear a notation in form approved by the Purchase Contract Agent as to any matter provided for in such supplemental agreement. If the Company shall so determine, new Certificates so modified as to conform, in the opinion of the Purchase Contract Agent and the Company, to any such supplemental agreement may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract Agent in exchange for Outstanding Certificates.

 

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ARTICLE IX

Consolidation, Merger, Sale, Conveyance, Transfer or Lease

 

SECTION 9.1.          Covenant Not to Consolidate, Merge, Sell, Convey, Transfer or Lease Property Except Under Certain Conditions.

 

The Company covenants that it will not merge or consolidate with or into any other Person or sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person or group of affiliated Persons in one transaction or a series of related transactions, unless

 

(i)         either the Company shall be the continuing entity or the successor (if other than the Company) shall be a Person, other than an individual, organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such entity shall expressly assume all the obligations of the Company under the Purchase Contracts, this Agreement, the Pledge Agreement, the Guarantee Agreement and the Remarketing Agreement by one or more supplemental agreements in form reasonably satisfactory to the Purchase Contract Agent and the Collateral Agent, executed and delivered to the Purchase Contract Agent and the Collateral Agent by such Person, and

 

(ii)        the Company or such successor entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale, assignment, transfer, lease or conveyance, be in default in its payment obligations or in any material default in the performance of any of its other obligations hereunder, or under any of the Units.

 

SECTION 9.2.          Rights and Duties of Successor Entity.

 

In case of any such consolidation, merger, sale, assignment, transfer, lease or conveyance and upon any such assumption by a successor entity in accordance with Section 9.1, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company. Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of NextEra Energy, Inc. any or all of the Certificates evidencing Units issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Purchase Contract Agent; and, upon the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Purchase Contract Agent shall authenticate and execute on behalf of the Holders and deliver any Certificates which previously shall have been signed and delivered by the officers of the Company to the Purchase Contract Agent for authentication and execution, and any Certificate evidencing Units which such successor entity thereafter shall cause to be signed and delivered to the Purchase Contract Agent for that purpose. All the Certificates so issued shall in all respects have the same legal rank and benefit under this Agreement as the Certificates theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Certificates had been issued at the date of the execution hereof.

 

75

 

 

In case of any such consolidation, merger, sale, assignment, transfer, lease or conveyance such change in phraseology and form (but not in substance) may be made in the Certificates evidencing Units thereafter to be issued as may be appropriate.

 

SECTION 9.3.          Company Certificate and Opinion of Counsel Given to Purchase Contract Agent.

 

The Purchase Contract Agent, subject to Section 7.1 and Section 7.3, shall receive a Company Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, assignment, transfer, lease or conveyance, and any such assumption, complies with the provisions of this Article IX and that all conditions precedent to the consummation of any such consolidation, merger, sale, assignment, transfer, lease or conveyance have been met.

 

ARTICLE X

Covenants

 

SECTION 10.1.        Performance Under Purchase Contracts.

 

The Company covenants and agrees for the benefit of the Holders from time to time of the Units that it will duly and punctually perform its obligations under the Purchase Contracts in accordance with the terms of the Purchase Contracts and this Agreement.

 

SECTION 10.2.        Maintenance of Office or Agency.

 

The Company will maintain in the Borough of Manhattan, The City of New York an office or agency where Certificates may be presented or surrendered for acquisition of shares of Common Stock upon settlement of the Purchase Contracts on the Purchase Contract Settlement Date or upon Early Settlement or Fundamental Change Early Settlement and for transfer of Collateral upon occurrence of a Termination Event, where Certificates may be surrendered for registration of transfer or exchange, for a Collateral Substitution or recreation of a Corporate Unit and where notices and demands to or upon the Company in respect of the Units and this Agreement may be served. The Company will give prompt written notice to the Purchase Contract Agent of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Purchase Contract Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Purchase Contract Agent as its agent to receive all such presentations, surrenders, notices and demands. The Company initially designates the Corporate Trust Office of the Purchase Contract Agent as such office of the Company.

 

The Company may also from time to time designate one or more other offices or agencies where Certificates may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company will give prompt written notice to the Purchase Contract Agent of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates as the place of payment for the Units the Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate Trust Office as paying agent in such city.

 

76

 

 

SECTION 10.3.        Company to Reserve Common Stock.

 

The Company shall at all times prior to the Purchase Contract Settlement Date reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock the full number of shares of Common Stock issuable against tender of payment in respect of all Purchase Contracts constituting a part of the Units evidenced by Outstanding Certificates.

 

SECTION 10.4.        Covenants as to Common Stock.

 

The Company covenants that all shares of Common Stock which may be issued against tender of payment in respect of any Purchase Contract constituting a part of the Outstanding Units will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable.

 

SECTION 10.5.        Covenants of Holders as to ERISA 

 

Each Holder from time to time of the Units (and the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Units), will be deemed to have represented and warranted that either:

 

(a)           the Holder is not purchasing the Units (and the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Units) with, or on behalf of, the assets of any Plan; or

 

(b) (i)        the Plan will receive no less and pay no more than “adequate consideration” (within the meaning of Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code) in connection with the purchase, holding and disposition of the Corporate Units (and the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Units),

 

(ii)        the purchase, holding and disposition of the Units (and the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Units) are eligible for exemptive relief or such purchase, holding and disposition will not result in a non-exempt prohibited transaction under ERISA or the Code, or a violation of Similar Law,

 

(iii)       neither the Company, NEE Capital nor any of their affiliates exercised any discretionary authority or discretionary control respecting the purchase, holding and disposition of the Units (and the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Units) and neither the Company, NEE Capital nor any of their affiliates provided advice that has formed the primary basis for the decision to purchase, hold or dispose of the Units (and the Applicable Ownership Interests in Debentures, the Treasury Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, underlying such Units), and

 

77

 

 

(iv)       the Holder hereby directs the Company, NEE Capital, the Purchase Contract Agent, the Collateral Agent and the Remarketing Agents to take the actions set forth in this Agreement, the Pledge Agreement, the Officer’s Certificate and the Remarketing Agreement to be taken by such parties.

 

ARTICLE XI

Trust Indenture Act

 

SECTION 11.1.        Trust Indenture Act; Application.

 

(a)           This Agreement is subject to the provisions of the TIA that are required or deemed to be part of this Agreement and shall, to the extent applicable, be governed by such provisions; and

 

(b)           if and to the extent that any provision of this Agreement limits, qualifies or conflicts with the duties imposed by Section 310 to 317, inclusive, of the TIA, such imposed duties shall control.

 

SECTION 11.2.        Lists of Holders of Units.

 

(a)           The Company shall furnish or cause to be furnished to the Purchase Contract Agent (a) semiannually, not later than __________ and __________ in each year, commencing ________________, a list, in such form as the Purchase Contract Agent may reasonably require, of the names and addresses of the Holders (“List of Holders”) as of a date not more than 15 days prior to the delivery thereof, and (b) at such other times as the Purchase Contract Agent may request in writing, within 30 days after the receipt by the Company of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished; provided, that the Company shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Purchase Contract Agent by the Company. The Purchase Contract Agent may destroy any List of Holders previously given to it on receipt of a new List of Holders.

 

(b)           The Purchase Contract Agent shall comply with its obligations under Section 311(a) of the TIA, subject to the provisions of Section 311(b) and Section 312(b) of the TIA.

 

SECTION 11.3.        Reports by the Purchase Contract Agent.

 

Not later than July 15 of each year, commencing July 15, ______, the Purchase Contract Agent shall provide to the Holders such reports, if any, as are required by Section 313(a) of the TIA in the form and in the manner provided by Section 313(a) of the TIA. Such reports shall be as of the preceding April 15. The Purchase Contract Agent shall also comply with the requirements of Section 313(b), Section 313(c) and Section 313(d) of the TIA.

 

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SECTION 11.4.        Periodic Reports to Purchase Contract Agent.

 

The Company shall provide to the Purchase Contract Agent such documents, reports and information as required by Section 314(a) (if any) and the compliance certificate required by Section 314(a) of the TIA in the form, in the manner and at the times required by Section 314(a) of the TIA.

 

SECTION 11.5.        Evidence of Compliance with Conditions Precedent.

 

The Company shall provide to the Purchase Contract Agent such evidence of compliance with any conditions precedent provided for in this Agreement as and to the extent required by Section 314(c) of the TIA. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the TIA may be given in the form of a Company Certificate. Any opinion required to be given pursuant to Section 314(c)(2) of the TIA may be given in the form of an Opinion of Counsel.

 

SECTION 11.6.        Defaults; Waiver.

 

The Holders of a majority of the Outstanding Purchase Contracts voting together as one class may, by vote or consent, on behalf of all of the Holders, waive any past Default and its consequences, except a Default

 

(a)        in the payment on any Unit, or

 

(b)        in respect of a provision hereof which under Section 8.2 cannot be modified or amended without the consent of the Holder of each Outstanding Unit affected.

 

Upon such waiver, any such Default shall cease to exist, and any Default arising therefrom shall be deemed to have been cured, for every purpose of this Agreement, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

SECTION 11.7.        Conflicting Interests.

 

The following documents shall be deemed to be specifically described in this Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the TIA: (i) the Indenture, (ii) the Guarantee Agreement, (iii) the Indenture (For Unsecured Subordinated Debt Securities), dated as of September 1, 2006, as amended, among NEE Capital, the Company (as guarantor) and The Bank of New York Mellon (as trustee), (v) the Purchase Contract Agreement, dated as of September 1, 2019, between the Company and The Bank of New York Mellon (as purchase contract agent); (vi) the Purchase Contract Agreement, dated as of February 1, 2020, between the Company and The Bank of New York Mellon (as purchase contract agent); (vii) the Purchase Contract Agreement, dated as of September 1, 2021, between the Company and The Bank of New York Mellon (as purchase contract agent); and (viii) ________________.

 

SECTION 11.8.        Direction of Purchase Contract Agent.

 

Section 315(d)(3) and Section 316(a)(1)(A) of the TIA are hereby expressly excluded from this Agreement, as permitted by the TIA.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Purchase Contract Agreement to be duly executed as of the day and year first above written.

     
  NEXTERA ENERGY, INC.
     
  By: 
  Name:   
  Title:  
     
  THE BANK OF NEW YORK MELLON,
  as Purchase Contract Agent
     
  By:
  Name:   
  Title:  

 

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EXHIBIT A

 

FORM OF CORPORATE UNIT CERTIFICATE

 

[FOR INCLUSION IN GLOBAL CERTIFICATES ONLY—THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

 

No. _____
CUSIP No. __________
Number of Corporate Units _______

 

NEXTERA ENERGY, INC.

(Form of Face of Corporate Unit Certificate)

Corporate Units
($50 Stated Amount)

 

This Corporate Unit Certificate certifies that ___________ is the registered Holder of the number of Corporate Units set forth above [for inclusion in Global Certificates only–or such other number of Corporate Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto], which number shall not exceed __________. Each Corporate Unit consists of (i) either (a) the Applicable Ownership Interest in Debentures, subject to the Pledge thereof by such Holder pursuant to the Pledge Agreement, or (b) upon the occurrence of a Special Event Redemption, a Mandatory Redemption or a Successful Early Remarketing, the Applicable Ownership Interest in the Treasury Portfolio, subject to the pledge of the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term) by such Holder pursuant to the Pledge Agreement, and (ii) the rights and obligations of the Holder thereof and of NextEra Energy, Inc., a Florida corporation (the “Company”), under one Purchase Contract. All capitalized terms used herein without definition herein shall have the meaning set forth or incorporated by reference in the Purchase Contract Agreement referred to below.

 

A-1

 

 

Pursuant to the Pledge Agreement, the Applicable Ownership Interest in Debentures and/or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, constituting part of each Corporate Unit evidenced hereby have been pledged to the Collateral Agent, for the benefit of the Company, to secure the obligations of the Holder under the Purchase Contract comprising a part of such Corporate Unit.

 

The Pledge Agreement provides that all payments of the principal amount of Debentures or the Stated Amount of the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, or payments of interest on any Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, constituting part of the Corporate Units received by the Collateral Agent shall be paid by the Collateral Agent by wire transfer in same day funds (i) in the case of (A) payments of interest with respect to Pledged Applicable Ownership Interests in Debentures or cash distributions on the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of such term), as the case may be, and (B) any payments of the principal amount of Debentures or the Stated Amount of the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, with respect to any Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, that have been released from the Pledge pursuant to the Pledge Agreement, to the Purchase Contract Agent to the account or accounts designated by the Purchase Contract Agent, no later than 2:00 p.m., New York City time, on the Business Day such payment is received by the Collateral Agent (provided, that in the event such payment is received by the Collateral Agent on a day that is not a Business Day or after 12:30 p.m., New York City time, on a Business Day, then such payment shall be made no later than 10:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in the case of payments of the principal amount of Debentures or the Stated Amount of the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, of any Debentures or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, to the Company on the Purchase Contract Settlement Date (as defined herein) in accordance with the terms of the Pledge Agreement, in full satisfaction of the respective obligations of the Holders of the Corporate Units of which such Pledged Applicable Ownership Interests in Debentures or the Treasury Portfolio, as the case may be, are a part under the Purchase Contracts forming a part of such Corporate Units. Payment of interest on any Pledged Applicable Ownership Interests in Debentures or cash distributions on the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of such term), as the case may be, forming part of a Corporate Unit evidenced hereby which are payable quarterly in arrears on __________, __________, __________ and __________ each year, commencing ________________ (each, a “Payment Date”), shall, subject to receipt thereof by the Purchase Contract Agent from the Collateral Agent, be paid to the Person in whose name this Corporate Unit Certificate (or a Predecessor Corporate Unit Certificate) is registered at the close of business on the Record Date for such Payment Date.

 

A-2

 

 

Each Purchase Contract evidenced hereby obligates the Holder of this Corporate Unit Certificate to purchase, and the Company to sell, not later than ________________ (the “Purchase Contract Settlement Date”), at a price of $50 in cash (the “Purchase Price”), a number of newly-issued shares of Common Stock, par value $0.01 per share, of the Company (“Common Stock”) determined by reference to the applicable Settlement Rate (as defined below), unless on or prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental Change Early Settlement with respect to the Corporate Units of which such Purchase Contract is a part, all as provided in the Purchase Contract Agreement and more fully described on the reverse hereof.

 

The “Settlement Rate” shall be determined as follows: (a) if the Applicable Market Value (as defined below) is equal to or greater than $_____ (the “Threshold Appreciation Price”), the applicable Settlement Rate shall equal ______ shares of Common Stock per Purchase Contract (the “Minimum Settlement Rate”), (b) if the Applicable Market Value is less than the Threshold Appreciation Price, but is greater than $_____ (the “Reference Price”), the applicable Settlement Rate shall equal the number of shares of Common Stock per Purchase Contract having a value equal to $50 divided by the Applicable Market Value, and (c) if the Applicable Market Value is less than or equal to the Reference Price, the applicable Settlement Rate shall equal ______ shares of Common Stock per Purchase Contract (the “Maximum Settlement Rate”), in each case subject to adjustment as provided in the Purchase Contract Agreement. No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as provided in the Purchase Contract Agreement.

 

The Company shall pay on each Payment Date in respect of each Purchase Contract forming part of a Corporate Unit evidenced hereby, an amount (the “Contract Adjustment Payments”) equal to ______% per annum of the Stated Amount (computed on the basis of a 360-day year consisting of twelve 30-day months), subject to deferral at the option of the Company as provided in the Purchase Contract Agreement and more fully described on the reverse hereof. Such Contract Adjustment Payments shall be payable to the Person in whose name this Corporate Unit Certificate (or a Predecessor Corporate Unit Certificate) is registered on the Security Register at the close of business on the Record Date relating to such Payment Date.

 

Contract Adjustment Payments will be payable at the Corporate Trust Office or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register or by wire transfer to an account appropriately designated in writing by the Person entitled to payment.

 

Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Purchase Contract Agent by manual signature, this Corporate Unit Certificate shall not be entitled to any benefit under the Pledge Agreement or the Purchase Contract Agreement or be valid or obligatory for any purpose.

 

A-3

 

 

IN WITNESS WHEREOF, the Company and the Holder specified above have caused this instrument to be duly executed.

     
  NEXTERA ENERGY, INC.
     
  By: 
  Name:   
  Title:  
     
  HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts evidenced hereby)
     
  By: THE BANK OF NEW YORK MELLON,
    not individually but solely as Attorney-in-Fact of such Holder
     
  By:
  Name:  
  Title:  

 

Dated:

 

A-4

 

 

PURCHASE CONTRACT AGENT’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Corporate Unit Certificates referred to in the within mentioned Purchase Contract Agreement.

     
Dated: THE BANK OF NEW YORK MELLON,
as Purchase Contract Agent
     
  By: 
    Authorized Signatory

 

A-5

 

 

(Form of Reverse of Corporate Unit Certificate)

 

This Unit and each Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement, dated as of ________________ (as may be supplemented from time to time, the “Purchase Contract Agreement”), between the Company and The Bank of New York Mellon, as purchase contract agent (including any successor thereunder, herein called the “Purchase Contract Agent”), to which the Purchase Contract Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Company, and the Holders and of the terms upon which the Corporate Unit Certificates are, and are to be, executed and delivered.

 

Each Purchase Contract evidenced hereby, which is settled either through Early Settlement or Fundamental Change Early Settlement, shall obligate the Holder of the related Corporate Units to purchase at the applicable Purchase Price, and the Company to sell, a number of newly-issued shares of Common Stock equal to the Early Settlement Rate or the applicable Settlement Rate, as applicable.

 

The “Applicable Market Value” means the average of the Closing Price per share of Common Stock on each Trading Day during the Observation Period; provided, however, that if a Reorganization Event occurs, the Applicable Market Value will mean the value of an Exchange Property Unit. Following the occurrence of any such Reorganization Event, references herein to the purchase or issuance of shares of Common Stock shall be construed to be references to settlement into Exchange Property Units. For purposes of calculating the value of an Exchange Property Unit, (x) the value of any common stock included in the Exchange Property Unit shall be determined using the average of the Closing Price per share of such common stock on each Trading Day during the Observation Period (only if such common stock has traded on any Trading Day during the Observation Period) (adjusted as set forth under Section 5.6 of the Purchase Contract Agreement) and (y) the value of any other property, including securities other than common stock included in the Exchange Property Unit, shall be the value of such property on the first Trading Day of the Observation Period (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution). The “Closing Price” of the Common Stock on any date of determination means the closing sale price (or, if no closing price is reported, the last reported sale price) of the Common Stock on the New York Stock Exchange (the “NYSE”) on such date or, if the Common Stock is not listed for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which the Common Stock is so listed, or if the Common Stock is not so reported, the last quoted bid price for the Common Stock in the over-the-counter market as reported by the OTC Markets Group Inc. or similar organization, or, if such bid price is not available, the market value of the Common Stock on such date as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. A “Trading Day” means a day on which the Common Stock (A) is not suspended from trading on any national or regional securities exchange or over-the-counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or over-the-counter market that is the primary market for the trading of the Common Stock at the close of business. If the Common Stock is not traded on a securities exchange or quoted in the over-the-counter market, then “Trading Day” shall mean Business Day.

 

A-6

 

 

In accordance with the terms of the Purchase Contract Agreement, the Holder of the Corporate Units evidenced hereby shall pay, on the Purchase Contract Settlement Date, the Purchase Price for the shares of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by effecting a Cash Settlement. A Holder of Corporate Units who does not make such payment in accordance with the Purchase Contract Agreement or who does not notify the Purchase Contract Agent of such Holder’s intention, at or prior to 5:00 p.m., New York City time, on the seventh Business Day immediately preceding the Purchase Contract Settlement Date, to make a Cash Settlement or an Early Settlement, shall be deemed to have consented to the disposition of the Pledged Applicable Ownership Interests in Debentures pursuant to the Remarketing during the Final Three Day Remarketing Period described in the Purchase Contract Agreement.

 

If there is no Successful Remarketing during the Period for Early Remarketing and if each of the Remarketings during the Final Three-Day Remarketing Period result in a Failed Remarketing, each Corporate Unit Holder of Applicable Ownership Interests in Debentures (as to which the related Purchase Contract has not been settled with cash) shall be deemed to have exercised its Put Right with respect to its Applicable Ownership Interests in Debentures, and to have elected that a portion of the Put Price equal to the principal amount of the relevant Debenture underlying such Applicable Ownership Interests in Debentures be applied against such Corporate Unit Holder’s obligations to pay the Purchase Price for the Common Stock issued in accordance with each related Purchase Contract on the Purchase Contract Settlement Date, in accordance with the terms of the Pledge Agreement.

 

The Company shall not be obligated to issue any shares of Common Stock in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment in full of the Purchase Price for the shares of Common Stock to be purchased thereunder in the manner set forth in the Purchase Contract Agreement.

 

Under and subject to the terms of the Pledge Agreement and the Purchase Contract Agreement, the Purchase Contract Agent will be entitled to exercise the voting and any other consensual rights pertaining to the Pledged Applicable Ownership Interests in Debentures but only to the extent instructed by the Holders as described below in this paragraph. Upon receipt of notice of any meeting at which holders of Debentures are entitled to vote or upon the solicitation of consents, waivers or proxies of holders of Debentures, the Purchase Contract Agent shall, as soon as practicable thereafter, mail to the Holders of Corporate Units a notice (a) containing such information as is contained in the notice or solicitation, (b) stating that each Corporate Unit Holder on the record date set by the Purchase Contract Agent therefor (which, to the extent possible, shall be the same date as the record date for determining the holders of Debentures entitled to vote) shall be entitled to instruct the Purchase Contract Agent as to the exercise of the voting rights pertaining to the Applicable Ownership Interest in Debentures constituting a part of such Holder’s Corporate Units and (c) stating the manner in which such instructions may be given. Upon the written request of the Holders of Corporate Units on such record date, the Purchase Contract Agent shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of Debentures as to which any particular voting instructions are received. In the absence of specific instructions from the Holder of Corporate Units, the Purchase Contract Agent shall abstain from voting the Applicable Ownership Interest in Debentures constituting a part of such Corporate Units.

 

A-7

 

 

Upon the occurrence of (i) a Mandatory Redemption where the related Purchase Contracts have not been previously or concurrently terminated in accordance with Section 5.8 of the Purchase Contract Agreement or (ii) a Special Event Redemption, in each case, prior to the Purchase Contract Settlement Date, the Redemption Price equal to the Redemption Amount together with any accrued and unpaid interest payable on the Mandatory Redemption Date or the Special Event Redemption Date, as the case may be, with respect to the Applicable Ownership Interests in Debentures shall be delivered to the Collateral Agent in exchange for the Pledged Applicable Ownership Interests in Debentures. Pursuant to the terms of the Pledge Agreement, the Collateral Agent will apply an amount equal to the Redemption Amount to purchase, on behalf of the Holders of Corporate Units, the Treasury Portfolio and promptly remit the remaining portion of such Redemption Price, if any, to the Purchase Contract Agent for payment to the Holders of such Corporate Units. The Treasury Portfolio will be substituted for the Pledged Applicable Ownership Interests in Debentures, and will be held by the Collateral Agent in accordance with the terms of the Pledge Agreement to secure the obligation of each Holder of a Corporate Unit to purchase the Common Stock on the Purchase Contract Settlement Date under the Purchase Contract constituting a part of such Corporate Unit. Following the occurrence of a Mandatory Redemption or a Special Event Redemption prior to the Purchase Contract Settlement Date, the Holders of Corporate Units and the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as the Holder of Corporate Units and the Collateral Agent had in respect of the Debentures underlying the Applicable Ownership Interest in Debentures, subject to the Pledge thereof as provided in Article II, Article III, Article IV, Article V, and Article VI of the Pledge Agreement and any reference herein to the Debentures shall be deemed to be reference to such Treasury Portfolio. The Company may cause to be made in any Corporate Unit Certificate therewith to be issued such change in phraseology and form (but not in substance) as may be appropriate to reflect the substitution of the Applicable Ownership Interest in the Treasury Portfolio for the Applicable Ownership Interest in Debentures as Collateral.

 

The Corporate Unit Certificates are issuable only in registered form and only in denominations of a single Corporate Unit and any integral multiple thereof. The transfer of any Corporate Unit Certificate will be registered and Corporate Unit Certificates may be exchanged as provided in the Purchase Contract Agreement. The Security Registrar may require a Holder, among other things, to furnish endorsements and transfer documents permitted by the Purchase Contract Agreement. No service charge shall be made for any such registration of transfer or exchange, but the Company and the Purchase Contract Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. A Holder who elects to substitute Treasury Securities for the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, thereby creating Treasury Units, shall be responsible for any fees or expenses payable in connection therewith. Except as provided in the Purchase Contract Agreement, for so long as the Purchase Contract underlying a Corporate Unit remains in effect, such Corporate Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Corporate Unit in respect of the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, and the Purchase Contract comprising such Corporate Unit may be acquired, and may be transferred and exchanged, only as an entire Corporate Unit. The holder of any Corporate Units may substitute for the Pledged Applicable Ownership Interest in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term) securing its obligation under the related Purchase Contract, Treasury Securities in an aggregate principal amount equal to the aggregate principal amount of the Pledged Applicable Ownership Interests in Debentures or Stated Amount of the Pledged Applicable Ownership Interests in the Treasury Portfolio in accordance with the terms of the Purchase Contract Agreement and the Pledge Agreement. From and after such Collateral Substitution, the Unit for which such Pledged Treasury Security secures the Holder’s obligation under the Purchase Contract shall be referred to as a “Treasury Unit.” A Holder may make such Collateral Substitution only in integral multiples of 20 Corporate Units for 20 Treasury Units; provided, however, that if a Special Event Redemption or a Mandatory Redemption or a Successful Early Remarketing has occurred and the Treasury Portfolio has become a component of the Corporate Units, a Holder may make such Collateral Substitutions only in integral multiples of _____ Corporate Units for _____ Treasury Units (or such other number of Treasury Units as may be determined by the Remarketing Agents in connection with a Successful Remarketing of the Debentures if the Reset Effective Date is not a Payment Date).

 

A-8

 

 

A Holder of a Treasury Unit may create or recreate a Corporate Unit by substituting the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, for all of the Treasury Securities that form a part of such Treasury Unit, in accordance with the terms of the Purchase Contract Agreement and the Pledge Agreement.

 

Subject to the next succeeding paragraph, the Company shall pay, on each Payment Date, the Contract Adjustment Payments payable in respect of each Purchase Contract to the Person in whose name the Corporate Unit Certificate evidencing such Purchase Contract is registered on the Security Register at the close of business on the Record Date relating to such Payment Date. The Contract Adjustment Payments will be payable at the Corporate Trust Office or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such address as it appears on the Security Register or by wire transfer to an account appropriately designated in writing by such person.

 

The Company shall have the right, at any time prior to the Purchase Contract Settlement Date, to defer the payment of any or all of the Contract Adjustment Payments otherwise payable on any Payment Date to any subsequent Payment Date, but only if the Company shall give the Holders and the Purchase Contract Agent written notice of its election to defer such payment (specifying the amount to be deferred and the expected Deferral Period) as provided in the Purchase Contract Agreement. Any Contract Adjustment Payments so deferred shall bear additional Contract Adjustment Payments thereon at the rate of ______% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Adjustment Payments, if any, together with the additional Contract Adjustment Payments accrued thereon, are referred to herein as the “Deferred Contract Adjustment Payments”). Deferred Contract Adjustment Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to the Purchase Contract Agreement. No Contract Adjustment Payments may be deferred to a date that is after the Purchase Contract Settlement Date.

 

A-9

 

 

In the event the Company exercises its option to defer the payment of Contract Adjustment Payments, then, until the Deferred Contract Adjustment Payments have been paid, the Company shall not declare or pay dividends on, make distributions with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock or make guarantee payments with respect to the foregoing other than:

 

(i)         purchases, redemptions or acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or agents or a stock purchase or dividend reinvestment plan, or the satisfaction by the Company of its obligations pursuant to any contract or security outstanding on the date that payment of Contract Adjustment Payments are deferred requiring the Company to purchase, redeem or acquire its capital stock,

 

(ii)        as a result of a reclassification of the Company’s capital stock or the exchange or conversion of all or a portion of one class or series of the Company’s capital stock for another class or series of the Company’s capital stock,

 

(iii)       the purchase of fractional interests in shares of the Company’s capital stock pursuant to the conversion or exchange provisions of the Company’s capital stock or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts,

 

(iv)       dividends or distributions paid or made in capital stock of the Company (or rights to acquire capital stock), or repurchases, redemptions or acquisitions of capital stock in connection with the issuance or exchange of capital stock (or securities convertible into or exchangeable for shares of the Company’s capital stock and distributions in connection with the settlement of stock purchase contracts) or

 

(v)        redemptions, exchanges or repurchases of any rights outstanding under a shareholder rights plan or the declaration or payment thereunder of a dividend or distribution of or with respect to rights in the future.

 

The Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Adjustment Payments or any Deferred Contract Adjustment Payments, and the rights and obligations of the Holders to purchase shares of Common Stock will immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Company, if, on or prior to the Purchase Contract Settlement Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than two Business Days thereafter give written notice to the Purchase Contract Agent, the Collateral Agent and to the Holders at their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Debentures underlying the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, forming a part of the Corporate Units evidenced hereby from the Pledge in accordance with the provisions of the Pledge Agreement.

 

A-10

 

 

Subject to and upon compliance with the provisions of the Purchase Contract Agreement, a Holder of Corporate Units may settle the related Purchase Contracts in their entirety at any time on or prior to the second Business Day immediately preceding the first day of the Final Three-Day Remarketing Period in the manner described herein, but only in integral multiples of 20 Corporate Units; provided, however, if the Treasury Portfolio has become a component of the Corporate Units, Holders of Corporate Units may settle early only in integral multiples of _____ Corporate Units at any time on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date (or such other number of Corporate Units as may be determined by the Remarketing Agents in connection with a Successful Remarketing of the Debentures if the Reset Effective Date is not a Payment Date). In order to exercise the right to effect any such early settlement (“Early Settlement”) with respect to any Purchase Contracts evidenced by this Corporate Unit Certificate, the Holder of this Corporate Unit Certificate shall deliver this Corporate Unit Certificate to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early/Fundamental Change Early Settlement set forth below duly completed and executed and accompanied by payment (payable to the Company in immediately available funds in an amount (the “Early Settlement Amount”) equal to the sum of (i) $50 times the number of Purchase Contracts being settled, plus (ii) if such delivery is made with respect to any Purchase Contracts during the period from the close of business on any Record Date relating to any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Adjustment Payments payable, if any, on such Payment Date with respect to such Purchase Contracts; provided, that no payment is required if the Company has elected to defer the Contract Adjustment Payments which would otherwise be payable on the Payment Date. Upon Early Settlement of Purchase Contracts by a Holder of the related Corporate Units, the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio underlying such Corporate Units shall be released from the Pledge as provided in the Pledge Agreement and the Holder shall be entitled to receive a number of shares of Common Stock on account of each Purchase Contract forming part of a Corporate Unit as to which Early Settlement is effected equal to the Minimum Settlement Rate; provided however, that upon the Early Settlement of the Purchase Contracts, (i) the Holder’s right to receive additional Contract Adjustment Payments in respect of such Purchase Contracts will terminate, and (ii) no adjustment will be made to or for the Holder on account of Deferred Contract Adjustment Payments, or any amount accrued in respect of Contract Adjustment Payments. The Early Settlement Rate shall be adjusted in the same manner and at the same time as the Settlement Rate is adjusted as provided in the Purchase Contract Agreement.

 

Upon registration of transfer of this Corporate Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Purchase Contract Agent pursuant to the Purchase Contract Agreement) under the terms of the Purchase Contract Agreement, the Purchase Contracts evidenced hereby and the Pledge Agreement and the transferor shall be released from the obligations under the Purchase Contracts evidenced by this Corporate Unit Certificate. The Company covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.

 

A-11

 

 

The Holder of this Corporate Unit Certificate, by its acceptance hereof, irrevocably authorizes the Purchase Contract Agent to enter into and perform the related Purchase Contracts forming part of the Corporate Units evidenced hereby on its behalf as its attorney-in-fact (including the execution of this Corporate Unit Certificate on behalf of such Holder), expressly withholds any consent to the assumption of the Purchase Contracts by the Company, its trustee in bankruptcy, receiver, liquidator or a person or entity performing similar functions, in the event that the Company becomes a debtor under the Bankruptcy Code or subject to other similar Federal or State law providing for reorganization or liquidation, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase Contracts, consents to the provisions of the Purchase Contract Agreement, irrevocably authorizes the Purchase Contract Agent to enter into and perform the Pledge Agreement on its behalf as its attorney-in-fact, and consents and agrees to be bound by the Pledge of the Applicable Ownership Interest in Debentures, or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, underlying this Corporate Unit Certificate pursuant to the Pledge Agreement. The Holder, by its acceptance hereof, further covenants and agrees, that, to the extent and in the manner provided in the Purchase Contract Agreement and the Pledge Agreement, but subject to the terms thereof, payments in respect of the principal and interest of the Debentures underlying the Applicable Ownership Interest in Debentures, or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), on the Purchase Contract Settlement Date shall be paid by the Collateral Agent to the Company in satisfaction of such Holder’s obligations under such Purchase Contract and such Holder shall acquire no right, title or interest in such payments.

 

The Holder of this Corporate Unit Certificate, by its acceptance hereof, covenants and agrees to treat itself as the owner, for Federal, State and local income and franchise tax purposes, of the related Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio forming part of the Corporate Units evidenced hereby. The Holder of this Corporate Unit Certificate, by its acceptance hereof, further covenants and agrees to treat the Applicable Ownership Interest in Debentures that are components of the Corporate Units evidenced hereby as indebtedness of NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”), for Federal, State and local income and franchise tax purposes.

 

The Holder of this Corporate Unit Certificate (and the Applicable Ownership Interests in Debentures underlying Corporate Units of such Holder represented by this Corporate Units Certificate), by its acceptance hereof, will be deemed to have represented and warranted that either:

 

(a)         the Holder is not purchasing the Corporate Units (and the Applicable Ownership Interests in Debentures, underlying such Corporate Units) with, or on behalf of, the assets of any Plan; or

 

(b) (i)        the Plan will receive no less and pay no more than “adequate consideration” (within the meaning of Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code) in connection with the purchase, holding and disposition of the Corporate Units (and the Applicable Ownership Interests in Debentures underlying such Corporate Units),

 

A-12

 

 

(ii)        the purchase, holding and disposition of the Corporate Units (and the Applicable Ownership Interests in Debentures underlying such Corporate Units) are eligible for exemptive relief or such purchase, holding and disposition will not result in a non-exempt prohibited transaction under ERISA or the Code, or a violation of Similar Law,

 

(iii)       neither the Company, NEE Capital nor any of their affiliates exercised any discretionary authority or discretionary control respecting the purchase, holding and disposition of the Corporate Units (and the Applicable Ownership Interests in Debentures underlying such Corporate Units) and neither the Company, NEE Capital nor any of their affiliates provided advice that has formed the primary basis for the decision to purchase, hold or dispose of the Corporate Units (and the Applicable Ownership Interests in Debentures underlying such Corporate Units) and

 

(iv)       the Holder hereby directs the Company, NEE Capital, the Purchase Contract Agent, the Collateral Agent and the Remarketing Agents to take the actions set forth in the Purchase Contract Agreement, the Pledge Agreement, the Officer’s Certificate and the Remarketing Agreement to be taken by such parties.

 

Subject to certain exceptions, the provisions of the Purchase Contract Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts. In addition, certain amendments to the Purchase Contract Agreement may be made without any consent of the Holders as provided in the Purchase Contract Agreement.

 

THE PURCHASE CONTRACTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE.

 

Prior to due presentment of a Certificate for registration of transfer, the Company, NEE Capital and the Purchase Contract Agent, and any agent of the Company, NEE Capital or the Purchase Contract Agent, may treat the Person in whose name this Corporate Unit Certificate is registered on the Security Register as the owner of the Corporate Units evidenced hereby for the purpose of (subject to any applicable record date) any payment or distribution with respect to the Applicable Ownership Interests in Debentures or the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of Applicable Ownership Interest in the Treasury Portfolio), as applicable, payments of Contract Adjustment Payments and any Deferred Contract Adjustment Payments, performance of the Purchase Contracts and for all other purposes whatsoever in connection with such Corporate Units, whether or not payment, distribution or performance shall be overdue and notwithstanding any notice to the contrary, and neither the Company, NEE Capital nor the Purchase Contract Agent, nor any agent of the Company, NEE Capital or the Purchase Contract Agent, shall be affected by notice to the contrary.

 

A-13

 

 

The Purchase Contracts shall not, prior to the settlement thereof, in accordance with the Purchase Contract Agreement, entitle the Holder to any of the rights of a holder of shares of Common Stock.

 

A copy of the Purchase Contract Agreement is available for inspection at the offices of the Purchase Contract Agent.

 

A-14

 

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: 

 

TEN COM — as tenants in common
   
UNIF GIFT MIN ACT — ______________________ Custodian ______________________(Minor)
   
  under Uniform Gifts to Minors Act ________________ (State)
   
TEN ENT — as tenants by the entireties
   
JT TEN — as joint tenants with right of survivorship and not as tenants in common

 

Additional abbreviations may also be used though not in the above list.

 

 

 

ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

 

 

 

(Please insert Social Security or Taxpayer Identification or other Identifying Number of Assignee)

 

 

 

 

 

 

(Please Print or Type Name and Address Including Postal Zip Code of Assignee)

 

the within Corporate Unit Certificates and all rights thereunder, hereby irrevocably constituting and appointing

 

 

attorney to transfer said Corporate Unit Certificates on the books of NextEra Energy, Inc. with full power of substitution in the premises.

 

Dated:    
      Signature
       
      NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Corporate Unit Certificates in every particular, without alteration or enlargement or any change whatsoever.
       
Signature Guarantee: ___________________
 
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

A-15

 

 

SETTLEMENT INSTRUCTIONS

 

The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon settlement on or after the Purchase Contract Settlement Date of the Purchase Contracts underlying the number of Corporate Units evidenced by this Corporate Unit Certificate (after taking into account all Units then held by such Holder) be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto.

 

Dated:    
      Signature
       
Signature Guarantee: ___________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:   REGISTERED HOLDER
 
Please print name and address of registered Holder:
 
   
Name   Name
   
     
     
   
   
Address   Address
     
 

Social Security or other Taxpayer Identification Number, if any

 

A-16

 

 

ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT

 

The undersigned Holder of this Corporate Unit Certificate hereby irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the terms of the Purchase Contract Agreement with respect to the Purchase Contracts underlying the number of Corporate Units evidenced by this Corporate Unit Certificate specified below. The undersigned Holder directs that a certificate for shares of Common Stock or other securities deliverable upon such [Early Settlement] [Fundamental Change Early Settlement] (after taking into account all Units of such Holder submitted by such Holder for [Early Settlement] [Fundamental Change Early Settlement]) be registered in the name of, and delivered, together with a check in payment for any fractional share and any Corporate Unit Certificate representing any Corporate Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is not effected, to the undersigned at the address indicated below unless a different name and address have been indicated below. The Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, deliverable upon such [Early Settlement] [Fundamental Change Early Settlement] will be transferred in accordance with the transfer instructions set forth below. If shares or other securities are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. In completing this form, you should cross out “[Early Settlement]” or “[Fundamental Change Early Settlement]”, as appropriate, if not applicable. Capitalized terms used herein but not defined shall have meaning set forth or incorporated by reference in the Purchase Contract Agreement.

 

Dated:    
      Signature
       
Signature Guarantee: ___________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

Number of Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:

 

If shares of Common Stock or other securities or Corporate Unit Certificates are to be registered in the name of and delivered to and Debentures underlying Pledged Applicable Ownership Interests in Debentures, or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, are to be transferred to a Person other than the Holder, please print such Person’s name and address:  

REGISTERED HOLDER

 
Please print name and address of registered Holder:
   
Name   Name
   
Address   Address
   
   
     
 
Social Security or other Taxpayer Identification Number, if any
 
Transfer Instructions for Debentures underlying Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, transferable upon [Early Settlement] [Fundamental Change Early Settlement]:

 

 

 

 

 

 

 

A-17

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE

 

The initial number of Corporate Units evidenced by this Global Certificate is ________. The following increases or decreases in this Global Certificate have been made:

 

Date Amount of
decrease in the
number of
Corporate Units
evidenced by this
Global Certificate 		Amount of
increase in the
number of
Corporate Units
evidenced by this
Global Certificate 		Number of
Corporate Units
evidenced by this
Global Certificate
following such
decrease or
increase 		Signature of
authorized officer
of Purchase
Contract Agent
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

 

A-18

 

 

EXHIBIT B

 

FORM OF TREASURY UNIT CERTIFICATE

 

[FOR INCLUSION IN GLOBAL CERTIFICATES ONLY-THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

 

No. _____
CUSIP No. __________
Number of Treasury Units _______

 

NEXTERA ENERGY, INC.

(Form of Face of Treasury Unit Certificate)

 

Treasury Units
($50 Stated Amount)

 

This Treasury Unit Certificate certifies that ___________ is the registered Holder of the number of Treasury Units set forth above [for inclusion in Global Certificates only–or such other number of Treasury Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto], which number shall not exceed ___________. Each Treasury Unit represents (a) the ownership by the Holder thereof of a 5% undivided beneficial interest in a Treasury Security, subject to the Pledge of such interest by such Holder pursuant to the Pledge Agreement, and (b) the rights and obligations of the Holder thereof and of NextEra Energy, Inc., a Florida corporation (the “Company”), under one Purchase Contract. All capitalized terms used herein without definition herein shall have the meaning set forth or incorporated by reference in the Purchase Contract Agreement referred to below.

 

B-1

 

 

Pursuant to the Pledge Agreement, the undivided beneficial interest in a Treasury Security constituting part of each Treasury Unit evidenced hereby has been pledged to the Collateral Agent, for the benefit of the Company, to secure the obligations of the Holder under the Purchase Contract comprising a part of such Treasury Unit.

 

The Pledge Agreement provides that all payments of the principal of any Treasury Securities received by the Collateral Agent shall be paid by the Collateral Agent by wire transfer in same day funds (i) in the case of any principal payments with respect to any Pledged Treasury Securities that have been released from the Pledge pursuant to the Pledge Agreement, to the Holders of the applicable Treasury Units, to the accounts designated by them in writing for such purpose no later than 2:00 p.m., New York City time, on the Business Day such payment is received by the Collateral Agent (provided, that in the event such payment is received by the Collateral Agent on a day that is not a Business Day or after 12:30 p.m., New York City time, on a Business Day, then such payment shall be made no later than 10:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in the case of payments of the principal of any Pledged Treasury Securities, to the Company on the Purchase Contract Settlement Date (as defined herein) in accordance with the terms of the Pledge Agreement, in full satisfaction of the respective obligations of the Holders of the Treasury Units under the Purchase Contracts forming a part of such Treasury Units.

 

Each Purchase Contract evidenced hereby obligates the Holder of this Treasury Unit Certificate to purchase, and the Company to sell, not later than ________________ (the “Purchase Contract Settlement Date”), at a price of $50 in cash (the “Purchase Price”), a number of newly-issued shares of Common Stock, par value $0.01 per share, of the Company (“Common Stock”) determined by reference to the applicable Settlement Rate (as defined below), unless on or prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental Change Early Settlement with respect to the Treasury Units of which such Purchase Contract is a part, all as provided in the Purchase Contract Agreement and more fully described on the reverse hereof.

 

The “Settlement Rate” shall be determined as follows: (a) if the Applicable Market Value (as defined below) is equal to or greater than $_____ (the “Threshold Appreciation Price”), the applicable Settlement Rate shall equal ______ shares of Common Stock per Purchase Contract (the “Minimum Settlement Rate”), (b) if the Applicable Market Value is less than the Threshold Appreciation Price, but is greater than $_____ (the “Reference Price”), the applicable Settlement Rate shall equal the number of shares of Common Stock per Purchase Contract having a value equal to $50 divided by the Applicable Market Value, and (c) if the Applicable Market Value is less than or equal to the Reference Price, the applicable Settlement Rate shall equal ______ shares of Common Stock per Purchase Contract (the “Maximum Settlement Rate”), in each case subject to adjustment as provided in the Purchase Contract Agreement. No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as provided in the Purchase Contract Agreement.

 

B-2

 

 

The Company shall pay on each Payment Date in respect of each Purchase Contract forming part of a Treasury Unit evidenced hereby, an amount (the “Contract Adjustment Payments”) equal to ______% per annum of the Stated Amount (computed on the basis of a 360-day year consisting of twelve 30-day months), subject to deferral at the option of the Company as provided in the Purchase Contract Agreement and more fully described on the reverse hereof. Such Contract Adjustment Payments shall be payable to the Person in whose name this Treasury Unit Certificate (or a Predecessor Treasury Unit Certificate) is registered on the Security Register at the close of business on the Record Date relating to such Payment Date.

 

Contract Adjustment Payments will be payable at the Corporate Trust Office or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register or by wire transfer to an account appropriately designated in writing by the Person entitled to payment.

 

Reference is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Purchase Contract Agent by manual signature, this Treasury Unit Certificate shall not be entitled to any benefit under the Pledge Agreement or the Purchase Contract Agreement or be valid or obligatory for any purpose.

 

B-3

 

 

IN WITNESS WHEREOF, the Company and the Holder specified above have caused this instrument to be duly executed.

     
  NEXTERA ENERGY, INC.
     
  By: 
  Name:  
  Title:  
     
  HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts evidenced hereby)
     
  By: THE BANK OF NEW YORK MELLON,
    not individually but solely as Attorney-in-Fact of such Holder
     
  By:
  Name:  
  Title:  

 

Dated:

 

B-4

 

 

PURCHASE CONTRACT AGENT’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Treasury Unit Certificates referred to in the within mentioned Purchase Contract Agreement.

     
Dated: THE BANK OF NEW YORK MELLON,
as Purchase Contract Agent
   
  By:  
  Authorized Signatory

 

B-5

 

 

(Form of Reverse of Treasury Unit Certificate)

 

This Unit and each Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement, dated as of ________________ (as may be supplemented from time to time, the “Purchase Contract Agreement”), between the Company and The Bank of New York Mellon, as purchase contract agent (including any successor thereunder, herein called the “Purchase Contract Agent”), to which the Purchase Contract Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Company, and the Holders and of the terms upon which the Treasury Unit Certificates are, and are to be, executed and delivered.

 

Each Purchase Contract evidenced hereby, which is settled either through Early Settlement or Fundamental Change Early Settlement, shall obligate the Holder of the related Treasury Units to purchase at the applicable Purchase Price, and the Company to sell, a number of newly-issued shares of Common Stock equal to the Early Settlement Rate or the applicable Settlement Rate, as applicable.

 

The “Applicable Market Value” means the average of the Closing Price per share of Common Stock on each Trading Day during the Observation Period; provided, however, that if a Reorganization Event occurs, the Applicable Market Value will mean the value of an Exchange Property Unit. Following the occurrence of any such Reorganization Event, references herein to the purchase or issuance of shares of Common Stock shall be construed to be references to settlement into Exchange Property Units. For purposes of calculating the value of an Exchange Property Unit, (x) the value of any common stock included in the Exchange Property Unit shall be determined using the average of the Closing Price per share of such common stock on each Trading Day during the Observation Period (only if such common stock has traded on any Trading Day during the Observation Period) (adjusted as set forth under Section 5.6 of the Purchase Contract Agreement) and (y) the value of any other property, including securities other than common stock included in the Exchange Property Unit, shall be the value of such property on the first Trading Day of the Observation Period (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution). The “Closing Price” of the Common Stock on any date of determination means the closing sale price (or, if no closing price is reported, the last reported sale price) of the Common Stock on the New York Stock Exchange (the “NYSE”) on such date or, if the Common Stock is not listed for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which the Common Stock is so listed, or if the Common Stock is not so reported, the last quoted bid price for the Common Stock in the over-the-counter market as reported by the OTC Markets Group Inc. or similar organization, or, if such bid price is not available, the market value of the Common Stock on such date as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. A “Trading Day” means a day on which the Common Stock (A) is not suspended from trading on any national or regional securities exchange or over-the-counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or over-the-counter market that is the primary market for the trading of the Common Stock at the close of business. If the Common Stock is not traded on a securities exchange or quoted in the over-the-counter market, then “Trading Day” shall mean Business Day.

 

B-6

 

 

In accordance with the terms of the Purchase Contract Agreement, the Holder of the Treasury Units evidenced hereby shall pay, on the Purchase Contract Settlement Date, the Purchase Price for the shares of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by effecting a Cash Settlement. A Holder of Treasury Units who does not make such payment in accordance with the Purchase Contract Agreement or who does not notify the Purchase Contract Agent of such Holder’s intention, at or prior to 5:00 p.m., New York City time, on the seventh Business Day immediately preceding the Purchase Contract Settlement Date, to make a Cash Settlement or an Early Settlement, shall have defaulted in its obligations under the related Purchase Contract. If a Holder of Treasury Units fails to notify the Purchase Contract Agent of such Holder’s intention to effect a Cash Settlement in accordance with the Purchase Contract Agreement such failure shall constitute a default under the related Purchase Contract. If a Holder of Treasury Units does notify the Purchase Contract Agent of its intention to effect a Cash Settlement but fails to deliver cash to pay the Purchase Price in accordance with the Purchase Contract Agreement, such failure shall also constitute a default under the Purchase Contract. If any such default occurs, upon the maturity of the Pledged Treasury Securities held by the Collateral Agent on the Business Day immediately prior to the Purchase Contract Settlement Date, the principal amount of the Treasury Securities received by the Collateral Agent will, upon the written direction of the Company, be invested promptly in overnight Permitted Investments. On the Purchase Contract Settlement Date an amount equal to the Purchase Price will be remitted to the Company in settlement of the Purchase Contract in accordance with the terms of the Purchase Contract Agreement and the Pledge Agreement without receiving any instructions from the Holder.

 

The Company shall not be obligated to issue any shares of Common Stock in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment in full of the Purchase Price for the shares of Common Stock to be purchased thereunder in the manner set forth in the Purchase Contract Agreement.

 

The Treasury Unit Certificates are issuable only in registered form and only in denominations of a single Treasury Unit and any integral multiple thereof. The transfer of any Treasury Unit Certificate will be registered and Treasury Unit Certificates may be exchanged as provided in the Purchase Contract Agreement. The Security Registrar may require a Holder, among other things, to furnish endorsements and transfer documents permitted by the Purchase Contract Agreement. No service charge shall be made for any such registration of transfer or exchange, but the Company and the Purchase Contract Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. A Holder who elects to substitute the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, for Treasury Securities, thereby creating Corporate Units, shall be responsible for any fees or expenses payable in connection therewith. Except as provided in the Purchase Contract Agreement, for so long as the Purchase Contract underlying a Treasury Unit remains in effect, such Treasury Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Treasury Unit in respect of the Treasury Security and the Purchase Contract comprising such Treasury Unit may be acquired, and may be transferred and exchanged, only as an entire Treasury Unit. The holder of any Treasury Units may substitute for the Treasury Securities securing its obligation under the related Purchase Contract, the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term) in an aggregate principal amount equal to the aggregate principal amount of the Pledged Treasury Securities in accordance with the terms of the Purchase Contract Agreement and the Pledge Agreement. From and after such Collateral Substitution, the Unit for which such Pledged Applicable Ownership Interest in Debentures or such Pledged Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term) secures the Holder’s obligation under the Purchase Contract shall be referred to as a “Corporate Unit.” A Holder may make such Collateral Substitution only in integral multiples of 20 Treasury Units for 20 Corporate Units; provided, however, that if a Special Event Redemption or a Mandatory Redemption or a Successful Early Remarketing has occurred and the Treasury Portfolio has become a component of the Corporate Units, a Holder may make such Collateral Substitutions only in integral multiples of _____ Treasury Units for _____ Corporate Units (or such other number of Corporate Units as may be determined by the Remarketing Agents in connection with a Successful Remarketing of the Debentures if the Reset Effective Date is not a Payment Date).

 

B-7

 

 

A Holder of a Corporate Unit may create or recreate a Treasury Unit by substituting Treasury Securities for all of the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, that form a part of such Corporate Unit, in accordance with the terms of the Purchase Contract Agreement and the Pledge Agreement.

 

Subject to the next succeeding paragraph, the Company shall pay, on each Payment Date, the Contract Adjustment Payments payable in respect of each Purchase Contract to the Person in whose name the Treasury Unit Certificate evidencing such Purchase Contract is registered on the Security Register at the close of business on the Record Date relating to such Payment Date. The Contract Adjustment Payments will be payable at the Corporate Trust Office or, at the option of the Company, by check mailed to the address of the Person entitled thereto at such address as it appears on the Security Register or by wire transfer to an account appropriately designated in writing by such person.

 

The Company shall have the right, at any time prior to the Purchase Contract Settlement Date, to defer the payment of any or all of the Contract Adjustment Payments otherwise payable on any Payment Date to any subsequent Payment Date, but only if the Company shall give the Holders and the Purchase Contract Agent written notice of its election to defer such payment (specifying the amount to be deferred and the expected Deferral Period) as provided in the Purchase Contract Agreement. Any Contract Adjustment Payments so deferred shall bear additional Contract Adjustment Payments thereon at the rate of ______% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Adjustment Payments, if any, together with the additional Contract Adjustment Payments accrued thereon, are referred to herein as the “Deferred Contract Adjustment Payments”). Deferred Contract Adjustment Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to the Purchase Contract Agreement. No Contract Adjustment Payments may be deferred to a date that is after the Purchase Contract Settlement Date.

 

B-8

 

 

In the event the Company exercises its option to defer the payment of Contract Adjustment Payments, then, until the Deferred Contract Adjustment Payments have been paid, the Company shall not declare or pay dividends on, make distributions with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock or make guarantee payments with respect to the foregoing other than:

 

(i)          purchases, redemptions or acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or agents or a stock purchase or dividend reinvestment plan, or the satisfaction by the Company of its obligations pursuant to any contract or security outstanding on the date that payment of Contract Adjustment Payments are deferred requiring the Company to purchase, redeem or acquire its capital stock,

 

(ii)        as a result of a reclassification of the Company’s capital stock or the exchange or conversion of all or a portion of one class or series of the Company’s capital stock for another class or series of the Company’s capital stock,

 

(iii)       the purchase of fractional interests in shares of the Company’s capital stock pursuant to the conversion or exchange provisions of the Company’s capital stock or the security being converted or exchanged, or in connection with the settlement of stock purchase contracts,

 

(iv)       dividends or distributions paid or made in capital stock of the Company (or rights to acquire capital stock), or repurchases, redemptions or acquisitions of capital stock in connection with the issuance or exchange of capital stock (or securities convertible into or exchangeable for shares of the Company’s capital stock and distributions in connection with the settlement of stock purchase contracts) or

 

(v)        redemptions, exchanges or repurchases of any rights outstanding under a shareholder rights plan or the declaration or payment thereunder of a dividend or distribution of or with respect to rights in the future.

 

The Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Adjustment Payments or any Deferred Contract Adjustment Payments, and the rights and obligations of the Holders to purchase shares of Common Stock will immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Company, if, on or prior to the Purchase Contract Settlement Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than two Business Days thereafter give written notice to the Purchase Contract Agent, the Collateral Agent and to the Holders at their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Treasury Securities from the Pledge in accordance with the provisions of the Pledge Agreement.

 

B-9

 

 

Subject to and upon compliance with the provisions of the Purchase Contract Agreement, a Holder of Treasury Units may settle the related Purchase Contracts in their entirety at any time on or prior to the second Business Day immediately preceding the first day of the Final Three-Day Remarketing Period in the manner described herein, but only in integral multiples of 20 Treasury Units. In order to exercise the right to effect any such early settlement (“Early Settlement”) with respect to any Purchase Contracts evidenced by this Treasury Unit Certificate, the Holder of this Treasury Unit Certificate shall deliver this Treasury Unit Certificate to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early/ Fundamental Change Early Settlement set forth below duly completed and executed and accompanied by payment (payable to the Company in immediately available funds in an amount (the “Early Settlement Amount”) equal to the sum of (i) $50 times the number of Purchase Contracts being settled, plus (ii) if such delivery is made with respect to any Purchase Contracts during the period from the close of business on any Record Date relating to any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Adjustment Payments payable, if any, on such Payment Date with respect to such Purchase Contracts; provided, that no payment is required if the Company has elected to defer the Contract Adjustment Payments which would otherwise be payable on the Payment Date. Upon Early Settlement of Purchase Contracts by a Holder of the related Treasury Units, the Pledged Treasury Securities underlying such Treasury Units shall be released from the Pledge as provided in the Pledge Agreement and the Holder shall be entitled to receive a number of shares of Common Stock on account of each Purchase Contract forming part of a Treasury Unit as to which Early Settlement is effected equal to the Minimum Settlement Rate; provided however, that upon the Early Settlement of the Purchase Contracts, (i) the Holder’s right to receive additional Contract Adjustment Payments in respect of such Purchase Contracts will terminate, and (ii) no adjustment will be made to or for the Holder on account of Deferred Contract Adjustment Payments, or any amount accrued in respect of Contract Adjustment Payments. The Early Settlement Rate shall be adjusted in the same manner and at the same time as the Settlement Rate is adjusted as provided in the Purchase Contract Agreement.

 

Upon registration of transfer of this Treasury Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required by the Purchase Contract Agent pursuant to the Purchase Contract Agreement) under the terms of the Purchase Contract Agreement, the Purchase Contracts evidenced hereby and the Pledge Agreement and the transferor shall be released from the obligations under the Purchase Contracts evidenced by this Treasury Unit Certificate. The Company covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.

 

The Holder of this Treasury Unit Certificate, by its acceptance hereof, irrevocably authorizes the Purchase Contract Agent to enter into and perform the related Purchase Contracts forming part of the Treasury Units evidenced hereby on its behalf as its attorney-in-fact (including the execution of this Treasury Unit Certificate on behalf of such Holder), expressly withholds any consent to the assumption of the Purchase Contracts by the Company, its trustee in bankruptcy, receiver, liquidator or a person or entity performing similar functions, in the event that the Company becomes a debtor under the Bankruptcy Code or subject to other similar Federal or State law providing for reorganization or liquidation, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase Contracts, consents to the provisions of the Purchase Contract Agreement, irrevocably authorizes the Purchase Contract Agent to enter into and perform the Pledge Agreement on its behalf as its attorney-in-fact, and consents and agrees to be bound by the Pledge of the Treasury Securities underlying this Treasury Unit Certificate pursuant to the Pledge Agreement. The Holder, by its acceptance hereof, further covenants and agrees, that, to the extent and in the manner provided in the Purchase Contract Agreement and the Pledge Agreement, but subject to the terms thereof, payments in respect of the Pledged Treasury Securities on the Purchase Contract Settlement Date shall be paid by the Collateral Agent to the Company in satisfaction of such Holder’s obligations under such Purchase Contract and such Holder shall acquire no right, title or interest in such payments.

 

B-10

 

 

The Holder of this Treasury Unit Certificate (and the Treasury Securities underlying Treasury Units of such Holder represented by this Treasury Unit Certificate), by its acceptance hereof, will be deemed to have represented and warranted that either:

 

(a)           the Holder is not purchasing the Treasury Units (and the Treasury Securities underlying Treasury Units of such Holder represented by this Treasury Units Certificate) with, or on behalf of, the assets of any Plan; or

 

(b) (i)        the Plan will receive no less and pay no more than “adequate consideration” (within the meaning of Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code) in connection with the purchase, holding and disposition of the Treasury Units (and the Treasury Securities underlying such Treasury Units),

 

(ii)        the purchase, holding and disposition of the Treasury Units (and the undivided ownership interests in Treasury Securities, underlying such Treasury Units) are eligible for exemptive relief or such purchase, holding and disposition will not result in a non-exempt prohibited transaction under ERISA or the Code, or a violation of Similar Law,

 

(iii)        neither the Company, NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”), nor any of their affiliates exercised any discretionary authority or discretionary control respecting the purchase, holding and disposition of the Treasury Units (and the undivided ownership interests in Treasury Securities underlying such Treasury Units) and neither the Company, NEE Capital nor any of their affiliates provided advice that has formed the primary basis for the decision to purchase, hold or dispose of the Treasury Units (and the undivided ownership interests in Treasury Securities underlying such Treasury Units) and

 

(iv)       the Holder hereby directs the Company, NEE Capital, the Purchase Contract Agent, the Collateral Agent and the Remarketing Agents to take the actions set forth in the Purchase Contract Agreement, the Pledge Agreement, the Officer’s Certificate and the Remarketing Agreement to be taken by such parties.

 

B-11

 

 

Subject to certain exceptions, the provisions of the Purchase Contract Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts. In addition, certain amendments to the Purchase Contract Agreement may be made without any consent of the Holders as provided in the Purchase Contract Agreement.

 

THE PURCHASE CONTRACTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE.

 

Prior to due presentment of a Certificate for registration of transfer, the Company, NEE Capital, and the Purchase Contract Agent, and any agent of the Company, NEE Capital or the Purchase Contract Agent, may treat the Person in whose name this Treasury Unit Certificate is registered on the Security Register as the owner of the Treasury Units evidenced hereby for the purpose of any payments on the Treasury Securities, payments of Contract Adjustment Payments and any Deferred Contract Adjustment Payments, performance of the Purchase Contracts and for all other purposes whatsoever in connection with such Treasury Units, whether or not payment, distribution or performance shall be overdue and notwithstanding any notice to the contrary, and neither the Company, NEE Capital nor the Purchase Contract Agent, nor any agent of the Company, NEE Capital or the Purchase Contract Agent, shall be affected by notice to the contrary.

 

The Purchase Contracts shall not, prior to the settlement thereof, in accordance with the Purchase Contract Agreement, entitle the Holder to any of the rights of a holder of shares of Common Stock.

 

A copy of the Purchase Contract Agreement is available for inspection at the offices of the Purchase Contract Agent.

 

B-12

 

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM — as tenants in common
   
UNIF GIFT MIN ACT — __________________________ Custodian __________________________ (Minor)
   
  under Uniform Gifts to Minors Act __________________________________ (State)
   
TEN ENT — as tenants by the entireties
   
JT TEN — as joint tenants with right of survivorship and not as tenants in common

 

Additional abbreviations may also be used though not in the above list.

 

 

ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

 

 

 

(Please insert Social Security or Taxpayer Identification or other Identifying Number of Assignee)

 

 

 

 

 

 

(Please Print or Type Name and Address Including Postal Zip Code of Assignee)

 

the within Treasury Unit Certificates and all rights thereunder, hereby irrevocably constituting and appointing

 

 

attorney to transfer said Treasury Unit Certificates on the books of NextEra Energy, Inc. with full power of substitution in the premises.

 

Dated:    
      Signature
       
      NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Treasury Unit Certificates in every particular, without alteration or enlargement or any change whatsoever.
       
Signature Guarantee: _____________________
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

B-13

 

 

SETTLEMENT INSTRUCTIONS

 

The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon settlement on or after the Purchase Contract Settlement Date of the Purchase Contracts underlying the number of Treasury Units evidenced by this Treasury Unit Certificate (after taking into account all Units then held by such Holder) be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto.

 

Dated:    
      Signature
       
Signature Guarantee: ___________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:   REGISTERED HOLDER
     
Please print name and address of registered Holder:
 
 
Name   Name
 
     
     
     
 
Address   Address
 

Social Security or other Taxpayer Identification Number, if any

 

B-14

 

 

ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT

 

The undersigned Holder of this Treasury Unit Certificate hereby irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the terms of the Purchase Contract Agreement with respect to the Purchase Contracts underlying the number of Treasury Units evidenced by this Treasury Unit Certificate specified below. The undersigned Holder directs that a certificate for shares of Common Stock or other securities deliverable upon such [Early Settlement] [Fundamental Change Early Settlement] (after taking into account all Units of such Holder submitted by such Holder for [Early Settlement] [Fundamental Change Early Settlement]) be registered in the name of, and delivered, together with a check in payment for any fractional share and any Treasury Unit Certificate representing any Treasury Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is not effected, to the undersigned at the address indicated below unless a different name and address have been indicated below. The Pledged Treasury Securities deliverable upon such [Early Settlement][Fundamental Change Early Settlement] will be transferred in accordance with the transfer instructions set forth below. If shares or other securities are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. In completing this form, you should cross out “[Early Settlement]” or “[Fundamental Change Early Settlement]”, as appropriate, if not applicable. Capitalized terms used herein but not defined shall have meaning set forth or incorporated by reference in the Purchase Contract Agreement. 

 

Dated:    
      Signature
       
Signature Guarantee: ___________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

Number of Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:

 

If shares of Common Stock or other securities or Treasury Unit Certificates are to be registered in the name of and delivered to and Pledged Treasury Securities are to be transferred to a Person other than the Holder, please print such Person’s name and address:  

REGISTERED HOLDER

 

 
Please print name and address of registered Holder:
   
Name   Name
   
Address   Address
   
   
     
 
Social Security or other Taxpayer Identification Number, if any
 
Transfer Instructions for Pledged Treasury Securities transferable upon [Early Settlement] [Fundamental Change Early Settlement]:

 

 

 

 

 

 

 

B-15

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES]

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE

 

The initial number of Treasury Units evidenced by this Global Certificate is ________. The following increases or decreases in this Global Certificate have been made:

 

Date Amount of
decrease in the
number of
Treasury Units
evidenced by this
Global Certificate 		Amount of
increase in the
number of
Treasury Units
evidenced by this
Global Certificate 		Number of
Treasury Units
evidenced by this
Global Certificate
following such
decrease or
increase 		Signature of
authorized officer
of Purchase
Contract Agent
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

 

B-16

 

 

EXHIBIT C

 

NOTICE TO SETTLE BY SEPARATE CASH

 

The Bank of New York Mellon

c/o __________
__________
__________, __________ __________

 

Attention: __________

Telecopy: __________

 

  Re: Equity Units of NextEra Energy, Inc. (the “Company”)

 

The undersigned Holder hereby irrevocably notifies you in accordance with Section 5.4 of the Purchase Contract Agreement, dated as of ________________ (the “Purchase Contract Agreement”), between the Company, yourselves, as Purchase Contract Agent and as attorney-in-fact for the Holders of the Purchase Contracts, that such Holder has elected to pay to the Collateral Agent, on or prior to 11:00 a.m. New York City time, on [the sixth][the] Business Day immediately preceding the Purchase Contract Settlement Date, in lawful money of the United States by certified or cashiers’ check or wire transfer, in each case in immediately available funds), $_________ as the Purchase Price for the shares of Common Stock issuable to such Holder by the Company under the related Purchase Contracts on the Purchase Contract Settlement Date. The undersigned Holder hereby instructs you to notify promptly the Collateral Agent of the undersigned Holder’s election to make such Cash Settlement with respect to the Purchase Contracts related to such Holder’s [Corporate Units] [Treasury Units]. In completing this form, you should cross out “[Corporate Units]” or “[Treasury Units]”, as appropriate, if not applicable. Capitalized terms used herein but not defined shall have meaning set forth or incorporated by reference in the Purchase Contract Agreement.

         
Date:     By:   
      Name:   
      Title:

 

 

Signature Guarantee: ________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

Please print name and address of registered Holder:

       
Name      Social Security or other Taxpayer
      Identification Number, if any

 

Address      
     
     
     
     

 

C-1

 

 

Exhibit 4(cb)

 

 

 

NEXTERA ENERGY, INC.,

as Pledgee

 

__________,

as Collateral Agent, Custodial Agent

and Securities Intermediary,

 

AND

 

THE BANK OF NEW YORK MELLON,

as Purchase Contract Agent

 

PLEDGE AGREEMENT

 

DATED AS OF ________________

 

 

 

 

 

TABLE OF CONTENTS

 

      Page
       
RECITALS     1
ARTICLE I. DEFINITIONS   2
ARTICLE II. PLEDGE; CONTROL AND PERFECTION   6
SECTION 2.1 The Pledge   6
SECTION 2.2 Control and Perfection   7
ARTICLE III. DISTRIBUTIONS ON PLEDGED COLLATERAL   9
ARTICLE IV. SUBSTITUTION, RELEASE AND REPLEDGE OF DEBENTURES AND SETTLEMENT OF PURCHASE CONTRACTS   10
SECTION 4.1 Substitution for Debentures and the Creation of Treasury Units   10
SECTION 4.2 Substitution for Treasury Securities and the Creation of Corporate Units   12
SECTION 4.3 Termination Event   13
SECTION 4.4 Cash Settlement   14
SECTION 4.5 Early Settlement; Fundamental Change Early Settlement   16
SECTION 4.6 Application of Proceeds; Settlement   17
ARTICLE V. VOTING RIGHTS — DEBENTURES   19
ARTICLE VI. RIGHTS AND REMEDIES; SPECIAL EVENT REDEMPTION;  MANDATORY REDEMPTION; REMARKETING   19
SECTION 6.1 Rights and Remedies of the Collateral Agent   19
SECTION 6.2 Special Event Redemption; Mandatory Redemption; Remarketing   21
SECTION 6.3 Remarketing During the Period for Early Remarketing   22
SECTION 6.4 Substitutions   22
ARTICLE VII. REPRESENTATIONS AND WARRANTIES; COVENANTS   22
SECTION 7.1 Representations and Warranties   22
SECTION 7.2 Covenants   23
ARTICLE VIII. THE COLLATERAL AGENT   24
SECTION 8.1 Appointment, Powers and Immunities   24
SECTION 8.2 Instructions of the Company   25
SECTION 8.3 Reliance   25
SECTION 8.4 Rights in Other Capacities   25
SECTION 8.5 Non-Reliance   26
SECTION 8.6 Compensation and Indemnity   26
SECTION 8.7 Failure to Act   27
SECTION 8.8 Resignation of Collateral Agent or Custodial Agent   27
SECTION 8.9 Right to Appoint Agent or Advisor   28
SECTION 8.10 Survival   28
SECTION 8.11 Exculpation   28
ARTICLE IX. AMENDMENT   28
SECTION 9.1 Amendment Without Consent of Holders   28
SECTION 9.2 Amendment With Consent of Holders   29
SECTION 9.3 Execution of Amendments   30
SECTION 9.4 Effect of Amendments   30
SECTION 9.5 Reference to Amendments   30

 

  i  

 

 

      Page
       
ARTICLE X. MISCELLANEOUS   31
SECTION 10.1 No Waiver   31
SECTION 10.2 Governing Law; Waiver of Jury Trial   31
SECTION 10.3 Notices   32
SECTION 10.4 Successors and Assigns   32
SECTION 10.5 Counterparts   32
SECTION 10.6 Separability   32
SECTION 10.7 Expenses, etc.   32
SECTION 10.8 Security Interest Absolute   33
SECTION 10.9 USA Patriot Act   33
SECTION 10.10 Force Majeure   33
SECTION 10.11 Provisions Incorporated by Reference to the Purchase Contract Agreement   34
       
EXHIBIT A Instruction From Purchase Contract Agent To Collateral Agent   A-1
EXHIBIT B Instruction To Purchase Contract Agent    B-1
EXHIBIT C Instruction To Custodial Agent Regarding Remarketing   C-1
EXHIBIT D Instruction To Custodial Agent Regarding Withdrawal From Remarketing   D-1

 

  ii  

 

 

PLEDGE AGREEMENT, dated as of ________________ (this “Agreement”), between NextEra Energy, Inc., a Florida corporation (the “Company”), as pledgee, __________, a __________, not individually but solely as collateral agent (in such capacity, together with its successors in such capacity, the “Collateral Agent”), as custodial agent (in such capacity, together with its successors in such capacity, the “Custodial Agent”) and as a “securities intermediary” as defined in Section 8-102(a)(14) of the UCC (as defined herein) (in such capacity, together with its successors in such capacity, the “Securities Intermediary”), and The Bank of New York Mellon, a New York banking corporation, not individually but solely as purchase contract agent and as attorney-in-fact for the Holders (as defined in the Purchase Contract Agreement (as hereinafter defined)) of Equity Units (as hereinafter defined) from time to time (in such capacity, together with its successors in such capacity, the “Purchase Contract Agent”) under the Purchase Contract Agreement.

 

RECITALS

 

The Company and the Purchase Contract Agent are parties to the Purchase Contract Agreement, dated as of the date hereof (as modified and supplemented and in effect from time to time, the “Purchase Contract Agreement”), pursuant to which there may be issued up to __________ units (referred to as “Equity Units”) of the Company, having a stated amount of $50 (“Stated Amount”) per Equity Unit.

 

The Equity Units will initially consist of __________ Corporate Units and 0 Treasury Units. Each Corporate Unit will consist of (a) a stock purchase contract (as modified and supplemented and in effect from time to time, a “Purchase Contract”) under which (i) the Holder will purchase from the Company not later than ________________ (“Purchase Contract Settlement Date”), for $50 in cash, a number of newly-issued shares of common stock, $0.01 par value per share, of the Company (“Common Stock”)1 determined by reference to the applicable Settlement Rate and (ii) the Company will pay certain Contract Adjustment Payments to the Holders as provided in the Purchase Contract Agreement, and (b) either (A) prior to the Purchase Contract Settlement Date so long as no Special Event Redemption or Mandatory Redemption has occurred, (i) the Applicable Ownership Interest in Debentures, such debentures being the Series __ Debentures due ________________ (“Debentures”) issued by NextEra Energy Capital Holdings, Inc. (“NEE Capital”), or (ii) following a Successful Remarketing during the Period for Early Remarketing, the Applicable Ownership Interest in the Treasury Portfolio, or (B) upon the occurrence of a Special Event Redemption or a Mandatory Redemption (if the Purchase Contracts have not been previously or concurrently terminated in accordance with the Purchase Contract Agreement) prior to the Purchase Contract Settlement Date, the Applicable Ownership Interest in the Treasury Portfolio.

 

Each Treasury Unit will consist of (a) a Purchase Contract under which (i) the Holder will purchase from the Company not later than the Purchase Contract Settlement Date, for $50 in cash, a number of newly-issued shares of Common Stock determined by reference to the applicable Settlement Rate and (ii) the Company will pay certain Contract Adjustment Payments to the Holders as provided in the Purchase Contract Agreement, and (b) a 5% undivided beneficial ownership interest in a zero-coupon U.S. Treasury security having a principal amount at maturity equal to $1,000 and maturing on ________________ (CUSIP No. __________) (“Treasury Security”).

 

 

1 To be revised if preferred stock is to be issued upon settlement of Purchase Contracts.

 

 

 

[Pursuant to the terms of the Purchase Contract Agreement, the Company may issue up to __________ additional Corporate Units and, if the Company issues such additional Corporate Units, the related Applicable Ownership Interest in Debentures will be pledged hereunder.]

 

Pursuant to the terms of the Purchase Contract Agreement and the Purchase Contracts, the Holders, from time to time, of the Equity Units have irrevocably authorized the Purchase Contract Agent, as attorney-in-fact for such Holders, among other things, to execute and deliver this Agreement on behalf of and in the name of such Holders and to grant the pledge provided hereby of the Applicable Ownership Interest in Debentures, any Applicable Ownership Interest in the Treasury Portfolio and any Treasury Securities to secure each Holder’s obligations under the related Purchase Contract, as provided herein and subject to the terms hereof. Upon such pledge, the Debentures underlying the Applicable Ownership Interest in Debentures will be beneficially owned by the Holders but will be owned of record by the Purchase Contract Agent subject to the Pledge hereunder, and the Treasury Securities (and the Applicable Ownership Interest in the Treasury Portfolio) will be beneficially owned by the Holders but will be held in book-entry form by the Securities Intermediary subject to the Pledge.

 

Accordingly, the Company, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Purchase Contract Agent, on its own behalf and as attorney-in-fact for the Holders of Equity Units from time to time, agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires (terms not otherwise defined herein are used herein with the meaning ascribed to them or incorporated by reference in the Purchase Contract Agreement):

 

(a)       the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular;

 

(b)       the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, other subdivision or Exhibit; and

 

(c)       the following terms have the meanings given to them in this Article I:

 

“Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.

 

2

 

 

“Bankruptcy Code” means Title 11 of the United States Code, or any other law of the United States that from time to time provides a uniform system of bankruptcy laws.

 

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banking institutions and trust companies in New York City (in the State of New York) are permitted or required by any applicable law, regulation or executive order to close.

 

“Collateral” means the collective reference to:

 

(a)       the Collateral Account and all securities, financial assets, cash and other property credited thereto and all Security Entitlements related thereto from time to time credited to the Collateral Account, including, without limitation, (A) the Applicable Ownership Interests in Debentures and security entitlements relating thereto (and the Debentures and Security Entitlements relating thereto delivered to the Collateral Agent in respect of such Applicable Ownership Interests in Debentures), (B) any Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term) and Security Entitlements relating thereto, (C) any Treasury Securities and Security Entitlements relating thereto Transferred to the Securities Intermediary from time to time in connection with the creation of Treasury Units in accordance with Section 3.13 of the Purchase Contract Agreement and (D) payments made by Holders pursuant to Section 4.4 hereof;

 

(b)       all Proceeds of any of the foregoing (whether such Proceeds arise before or after the commencement of any proceeding under any applicable bankruptcy, insolvency or other similar law, by or against the pledgor or with respect to the pledgor); and

 

(c)       all powers and rights now owned or hereafter acquired under or with respect to the Collateral.

 

“Collateral Account” means the securities account (number __________) maintained at __________ in the name “The Bank of New York Mellon, as Purchase Contract Agent on behalf of the Holders of Equity Units subject to the security interest of __________ as Collateral Agent under this Agreement, for the benefit of NextEra Energy, Inc., as pledgee” and any successor account.

 

“Collateral Agent” has the meaning specified in the first paragraph of this Agreement.

 

“Common Stock” has the meaning specified in the Recitals.

 

“Company” means the Person named as the “Company” in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Company” shall mean such successor.

 

“Custodial Agent” has the meaning specified in the first paragraph of this Agreement.

 

“Debentures” has the meaning specified in the Recitals.

 

“Entitlement Orders” has the meaning specified in Section 8-102(a)(8) of the UCC.

 

3

 

 

“Equity Units” has the meaning specified in the Recitals.

 

“Indenture” means the Indenture (For Unsecured Debt Securities), dated as of June 1, 1999, between NEE Capital and the Indenture Trustee, as amended, pursuant to which the Debentures are to be issued, as originally executed and delivered and as it may from time to time be supplemented or amended by one or more indentures supplemental thereto entered into pursuant to the applicable provisions thereof and shall include the terms of a particular series of securities established as contemplated by Section 301 thereof.

 

“Indenture Trustee” means The Bank of New York Mellon, as trustee under the Indenture, or any successor thereto.

 

“NEE Capital” has the meaning specified in the Recitals.

 

“Permitted Investments” means any one of the following which shall mature not later than the next succeeding Business Day (i) any evidence of indebtedness with an original maturity of 365 days or less issued, or directly and fully guaranteed or insured, by the United States of America or any agency or instrumentality thereof (provided, that the full faith and credit of the United States of America is pledged in support thereof or such indebtedness constitutes a general obligation of it); (ii) deposits, certificates of deposit or acceptances with an original maturity of 365 days or less of any institution which is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $200 million at the time of deposit; (iii) investments with an original maturity of 365 days or less of any Person that is fully and unconditionally guaranteed by an institution referred to in clause (ii); (iv) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any agency thereof and backed as to timely payment by the full faith and credit of the United States of America; (v) investments in commercial paper, other than commercial paper issued by the Company or its affiliates, of any corporation incorporated under the laws of the United States or any State thereof, which commercial paper has a rating at the time of purchase at least equal to “A-1” by S&P Global Ratings, a division of S&P Global, Inc. (“S&P”), or at least equal to “P-1” by Moody’s Investors Service, Inc. (“Moody’s”); and (vi) investments in money market funds (including, but not limited to, money market funds managed by the Collateral Agent or an affiliate of the Collateral Agent) registered under the Investment Company Act of 1940, as amended, rated in the highest applicable rating category by S&P or Moody’s.

 

“Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature.

 

“Pledge” has the meaning specified in Section 2.1 hereof.

 

“Pledged Applicable Ownership Interests in Debentures” means the Applicable Ownership Interests in Debentures and Security Entitlements with respect thereto from time to time credited to the Collateral Account and not then released from the Pledge.

 

4

 

 

“Pledged Applicable Ownership Interests in the Treasury Portfolio” means the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition thereof) and Security Entitlements with respect thereto from time to time credited to the Collateral Account and not then released from the Pledge.

 

“Pledged Securities” means the Pledged Applicable Ownership Interests in Debentures, the Pledged Applicable Ownership Interests in the Treasury Portfolio and the Pledged Treasury Securities, collectively.

 

“Pledged Treasury Securities” means Treasury Securities and Security Entitlements with respect thereto from time to time credited to the Collateral Account and not then released from the Pledge.

 

“Proceeds” means all interest, dividends, cash, instruments, securities, financial assets (as defined in Section 8-102(a)(9) of the UCC) and other property from time to time received, receivable or otherwise distributed upon the sale, exchange, collection or disposition of the Collateral or any proceeds thereof.

 

“Purchase Contract” has the meaning specified in the Recitals.

 

“Purchase Contract Agent” has the meaning specified in the first paragraph of this Agreement.

 

“Purchase Contract Agreement” has the meaning specified in the Recitals.

 

“Purchase Contract Settlement Date” has the meaning specified in the Recitals.

 

“Securities Intermediary” has the meaning specified in the first paragraph of this Agreement.

 

“Security Entitlement” has the meaning specified in Section 8-102(a)(17) of the UCC.

 

“Separate Debentures” means any Debentures that have been released from the Pledge following Collateral Substitution and therefore no longer underlie Corporate Units.

 

“Separate Debentures Purchase Price” has the meaning specified in the Officer’s Certificate.

 

“Stated Amount” has the meaning specified in the Recitals.

 

“TRADES” means the Treasury/Reserve Automated Debt Entry System maintained by the Federal Reserve Bank of New York pursuant to the TRADES Regulations.

 

“TRADES Regulations” means the regulations of the United States Department of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time, governing book-entry U.S. Treasury securities held in TRADES. Unless otherwise defined herein, all terms defined in the TRADES Regulations are used herein as therein defined.

 

5

 

 

“Transfer” means, with respect to the Collateral and in accordance with the instructions of the Collateral Agent, the Purchase Contract Agent or the Holder, as applicable:

 

(a)       except as otherwise provided in Section 2.1 hereof, in the case of Collateral consisting of securities which cannot be delivered by book-entry or which the parties agree are to be delivered in physical form, delivery in physical form to the recipient accompanied by any duly executed instruments of transfer, assignments in blank, transfer tax stamps and any other documents necessary to constitute a legally valid transfer to the recipient; and

 

(b)       in the case of Collateral consisting of securities maintained in book-entry form, causing a “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC) to (i) credit a Security Entitlement with respect to such securities to a “securities account” (as defined in Section 8-501(a) of the UCC) maintained by or on behalf of the recipient and (ii) to issue a confirmation to the recipient with respect to such credit. In the case of Collateral to be delivered to the Collateral Agent, the securities intermediary shall be the Securities Intermediary and the securities account shall be the Collateral Account.

 

“Treasury Security” has the meaning specified in the Recitals.

 

“UCC” has the meaning specified in Section 6.1 hereof.

 

“Value” with respect to any item of Collateral on any date means, as to (i) cash, the amount thereof, (ii) Treasury Securities or Applicable Ownership Interest in Debentures, the aggregate principal amount thereof at maturity and (iii) Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition thereof), the aggregate percentage of the aggregate principal amount at maturity.

 

ARTICLE II.

 

PLEDGE; CONTROL AND PERFECTION

 

SECTION 2.1                The Pledge

 

The Holders from time to time acting through the Purchase Contract Agent, as their attorney-in-fact, and the Purchase Contract Agent, as such attorney-in-fact, hereby pledge and grant to the Collateral Agent, for the benefit of the Company, as collateral security for the performance when due by such Holders of their respective obligations under the related Purchase Contracts, a security interest in all of the right, title and interest of such Holders and the Purchase Contract Agent in the Collateral. Prior to or concurrently with the execution and delivery of this Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the Equity Units, shall cause the Debentures underlying the Pledged Applicable Ownership Interests in Debentures that are components of the Corporate Units, to be Transferred to the Collateral Agent for the benefit of the Company. Such Debentures shall be Transferred by physically delivering such Debentures to the Collateral Agent endorsed in blank. From time to time, the Treasury Securities and the Treasury Portfolio, as applicable, shall be Transferred to the Collateral Account maintained by the Collateral Agent as the Securities Intermediary by book-entry transfer to the Collateral Account in accordance with the TRADES Regulations and other applicable law and by the notation by the Securities Intermediary on its books that a Security Entitlement with respect to such Treasury Securities or Treasury Portfolio, has been credited to the Collateral Account. For purposes of perfecting the Pledge under applicable law, including, to the extent applicable, the TRADES Regulations or the Uniform Commercial Code as adopted and in effect in any applicable jurisdiction, the Collateral Agent shall be the agent of the Company as provided herein. The pledge provided in this Section 2.1 is herein referred to as the “Pledge.” Subject to the Pledge and the provisions of Section 2.2 hereof, the Holders from time to time shall have full beneficial ownership of the Collateral. The Collateral Agent shall have the right to have the Debentures held in physical form reregistered in its name or in the name of its agent or the Securities Intermediary and credited to the Collateral Account.

 

6

 

 

Except as may be required in order to release Pledged Applicable Ownership Interest in Debentures (or if (i) a Special Event Redemption if the Purchase Contracts have not been previously or concurrently terminated in accordance with the Purchase Contract Agreement, (ii) a Mandatory Redemption if the Purchase Contracts have not been previously or concurrently terminated in accordance with the Purchase Contract Agreement or (iii) a Successful Remarketing has occurred, a Pledged Applicable Ownership Interest in the Treasury Portfolio) or Pledged Treasury Securities in connection with a Holder’s election to convert its investment from Corporate Units to Treasury Units, or from Treasury Units to Corporate Units, as the case may be, or except as otherwise required to release Pledged Securities as specified herein, neither the Collateral Agent nor the Securities Intermediary shall relinquish physical possession of any certificate evidencing Debentures (or if (i) a Special Event Redemption if the Purchase Contracts have not been previously or concurrently terminated in accordance with the Purchase Contract Agreement, (ii) Mandatory Redemption if the Purchase Contracts have not been previously or concurrently terminated in accordance with the Purchase Contract Agreement or (iii) a Successful Remarketing has occurred, the Applicable Ownership Interest in the Treasury Portfolio) or Treasury Securities prior to the termination of this Agreement. If it becomes necessary for the Collateral Agent to relinquish physical possession of a certificate in order to release a portion of the Debentures evidenced thereby from the Pledge, the Collateral Agent shall use its best efforts to obtain physical possession of a replacement certificate evidencing any Debentures remaining subject to the Pledge hereunder registered to it or endorsed in blank within ten days of the date it relinquished possession. The Collateral Agent shall promptly notify the Company of its failure to obtain possession of any such replacement certificate as required hereby.

 

SECTION 2.2                Control and Perfection

 

(a)       In connection with the Pledge granted in Section 2.1, and subject to the other provisions of this Agreement, the Holders from time to time acting through the Purchase Contract Agent, as their attorney-in-fact, hereby authorize and direct the Securities Intermediary (without the necessity of obtaining the further consent of the Purchase Contract Agent or any of the Holders), and the Securities Intermediary agrees, to comply with and follow any instructions and Entitlement Orders that the Collateral Agent on behalf of the Company may give in writing with respect to the Collateral Account, the Collateral credited thereto and any Security Entitlements with respect to any thereof. Such instructions and Entitlement Orders may, without limitation, direct the Securities Intermediary to transfer, redeem, sell, liquidate, assign, deliver or otherwise dispose of any Debentures, any Treasury Securities, any Treasury Portfolio and any Security Entitlements with respect thereto and to pay and deliver any income, proceeds or other funds derived therefrom to the Company. The Purchase Contract Agent and the Holders from time to time, acting through the Purchase Contract Agent, each hereby further authorize and direct the Collateral Agent, as agent of the Company, to itself issue instructions and Entitlement Orders, and to otherwise take action, with respect to the Collateral Account, the Collateral credited thereto and any Security Entitlements with respect thereto, pursuant to the terms and provisions hereof, all without the necessity of obtaining the further consent of the Purchase Contract Agent or any of the Holders. The Collateral Agent shall be the agent of the Company and shall act as directed in writing by the Company. Without limiting the generality of the foregoing, the Collateral Agent shall issue Entitlement Orders to the Securities Intermediary when and as required by the terms hereof or as directed by the Company.

 

7

 

 

(b)       The Securities Intermediary hereby confirms and agrees that: (i) all securities or other property underlying any financial assets credited to the Collateral Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another collateral account maintained in the name of the Securities Intermediary and in no case will any financial asset credited to the Collateral Account be registered in the name of the Purchase Contract Agent, the Company or any Holder, payable to the order of, or specially endorsed to, the Purchase Contract Agent, the Collateral Agent, the Company or any Holder except to the extent the foregoing have been specially endorsed to the Securities Intermediary or in blank; (ii) all property delivered to the Securities Intermediary pursuant to this Agreement (including, without limitation, any Pledged Securities) will be promptly credited to the Collateral Account; (iii) the Collateral Account is an account to which financial assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Agreement, treat the Purchase Contract Agent as the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) with respect to the Collateral Account; (iv) the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with any other Person relating to the Collateral Account and/or any financial assets credited thereto pursuant to which it has agreed to comply with Entitlement Orders of such other Person; and (v) the Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Company, the Collateral Agent, the Purchase Contract Agent or the Holders of the Equity Units purporting to limit or condition the obligation of the Securities Intermediary to comply with Entitlement Orders as set forth in this Section 2.2 hereof.

 

(c)       The Securities Intermediary hereby agrees that each item of property (whether investment property, financial asset, security, instrument or cash) credited to the Collateral Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.

 

(d)       In the event of any conflict between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into by the parties hereto, the terms of this Agreement shall prevail.

 

(e)       The Purchase Contract Agent hereby irrevocably constitutes and appoints the Collateral Agent and the Company, and each of them severally, with full power of substitution, as the Purchase Contract Agent’s attorney-in-fact to take on behalf of, and in the name, place and stead of the Purchase Contract Agent and the Holders, any action necessary or desirable to perfect and to keep perfected the security interest in the Collateral referred to in Section 2.1. The grant of such power-of-attorney shall not be deemed to require of the Collateral Agent any specific duties or obligations not otherwise assumed by the Collateral Agent hereunder.

 

8

 

 

ARTICLE III.

 

DISTRIBUTIONS ON PLEDGED COLLATERAL

 

So long as the Purchase Contract Agent is the registered owner of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures, it shall receive all payments thereon. If the Debentures underlying the Pledged Applicable Ownership Interests in Debentures are reregistered, such that the Collateral Agent becomes the registered Holder, all payments of principal or interest on such Debentures, together with any payments of principal or interest or cash distributions in respect of any other Pledged Securities received by the Collateral Agent that are properly payable hereunder, shall be paid by the Collateral Agent by wire transfer in same day funds:

 

(i)       In the case of (A) payment of interest with respect to the Pledged Applicable Ownership Interests in Debentures or cash distributions on the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the definition of the term “Applicable Ownership Interest in the Treasury Portfolio”), as the case may be, and (B) any payments of principal with respect to any Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term), as the case may be, that have been released from the Pledge pursuant to Section 4.3 hereof, to the Purchase Contract Agent, for the benefit of the relevant Holders of Corporate Units, to the account designated by the Purchase Contract Agent for such purpose, no later than 2:00 p.m., New York City time, on the Business Day such payment is received by the Collateral Agent (provided, that in the event such payment is received by the Collateral Agent on a day that is not a Business Day or after 12:30 p.m., New York City time, on a Business Day, then such payment shall be made no later than 10:30 a.m., New York City time, on the next succeeding Business Day);

 

(ii)       In the case of any principal payments with respect to any Treasury Securities that have been released from the Pledge pursuant to Section 4.3 hereof, to the Holders of the Treasury Units to the accounts designated by them to the Collateral Agent in writing for such purpose, no later than 2:00 p.m., New York City time, on the Business Day such payment is received by the Collateral Agent (provided, that in the event such payment is received by the Collateral Agent on a day that is not a Business Day or after 12:30 p.m., New York City time, on a Business Day, then such payment shall be made no later than 10:30 a.m., New York City time, on the next succeeding Business Day); and

 

(iii)       In the case of payments of the principal of any Pledged Applicable Ownership Interests in Debentures or the principal of the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of the term “Applicable Ownership Interest in the Treasury Portfolio”), as the case may be, or the principal of any Pledged Treasury Securities, to the Company on the Purchase Contract Settlement Date in accordance with the procedure set forth in Section 4.6(a) or Section 4.6(b) hereof, in full satisfaction of the respective obligations of the Holders under the related Purchase Contracts.

 

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All payments received by the Purchase Contract Agent as provided herein shall be applied by the Purchase Contract Agent pursuant to the provisions of the Purchase Contract Agreement. If, notwithstanding the foregoing, the Purchase Contract Agent or a Holder of Corporate Units shall receive any payments of principal on account of any Applicable Ownership Interest in Debentures or, if applicable, the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such term) that, at the time of such payment, is a Pledged Applicable Ownership Interest in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, or the Purchase Contract Agent or a Holder of Treasury Units shall receive any payments of principal on account of any Treasury Securities that, at the time of such payment, are Pledged Treasury Securities, the Purchase Contract Agent or such Holder, as the case may be, shall transfer the Proceeds of such payment of principal on such Pledged Applicable Ownership Interests in Debentures, Pledged Applicable Ownership Interests in the Treasury Portfolio, or Pledged Treasury Securities, as the case may be, to the Collateral Agent and the Collateral Agent shall hold such Proceeds for the benefit of the Company as Collateral for the performance when due by such Holder of its obligations under the related Purchase Contracts.

 

ARTICLE IV.

 

SUBSTITUTION, RELEASE AND REPLEDGE OF DEBENTURES AND
SETTLEMENT OF PURCHASE CONTRACTS

 

SECTION 4.1                Substitution for Debentures and the Creation of Treasury Units

 

A Holder of a Corporate Unit may create or recreate a Treasury Unit and separate the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as applicable, from the related Purchase Contract in respect of such Corporate Unit by substituting Treasury Securities for all, but not less than all, of the Applicable Ownership Interest in Debentures or Applicable Ownership Interest in the Treasury Portfolio that form a part of such Corporate Unit in accordance with this Section 4.1 and Section 3.13 of the Purchase Contract Agreement; provided, however, that if the Applicable Ownership Interest in the Treasury Portfolio has not replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, such Collateral Substitutions may only be made on or prior to 5:00 p.m., New York City time, on the seventh Business Day immediately preceding the Purchase Contract Settlement Date; and provided, further, that if the Treasury Portfolio has replaced the Debentures underlying the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, such Collateral Substitutions may only be made on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date. In accordance with Section 3.13 of the Purchase Contract Agreement, unless a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption has previously occurred, Holders of Corporate Units shall not be permitted to effect Collateral Substitutions during the period commencing on and including the Business Day prior to the first of the three sequential Remarketing Dates in a Three-Day Remarketing Period and ending on and including the Reset Effective Date relating to a Successful Remarketing during such Three-Day Remarketing Period or, if none of the remarketings during such Three-Day Remarketing Period is successful, the Business Day following the last of the three sequential Remarketing Dates occurring during such Three-Day Remarketing Period. Holders of Corporate Units may make Collateral Substitutions and establish Treasury Units (i) only in integral multiples of 20 Corporate Units if Applicable Ownership Interests in Debentures are being substituted for Treasury Securities, or (ii) only in integral multiples of _____ Corporate Units (or such other number of Corporate Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date) if the Applicable Ownership Interests in the Treasury Portfolio are being substituted for Treasury Securities.

 

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For example, to create 20 Treasury Units (if a Special Event Redemption or a Mandatory Redemption has not occurred and the Applicable Ownership Interests in Debentures remain components of Corporate Units), or _____ Treasury Units (if a Special Event Redemption or a Mandatory Redemption has occurred or the Treasury Portfolio has replaced the Applicable Ownership Interests in Debentures as components of Corporate Units as a result of a Successful Remarketing) (or such other number of Treasury Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date), the Corporate Unit Holder shall,

 

(a)       if the Treasury Portfolio has not replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, on or prior to the seventh Business Day immediately preceding the Purchase Contract Settlement Date, deposit with the Collateral Agent a Treasury Security having a principal amount at maturity of $1,000; or

 

(b)       if the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as a component of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date, deposit with the Collateral Agent Treasury Securities having an aggregate principal amount at maturity of $________; and

 

(c)       in each case, transfer and surrender the related 20 Corporate Units, or in the event the Treasury Portfolio is a component of Corporate Units, _____ Corporate Units (or such other number of Corporate Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date), to the Purchase Contract Agent accompanied by an instruction to the Purchase Contract Agent, substantially in the form of Exhibit B hereto, stating that the Holder has transferred the relevant amount of Treasury Securities to the Collateral Agent and requesting that the Purchase Contract Agent instruct the Collateral Agent to release the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, underlying such Corporate Units, whereupon the Purchase Contract Agent shall promptly give such instruction to the Collateral Agent, substantially in the form of Exhibit A hereto.

 

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Upon receipt of the Treasury Securities described in clause (a) or (b) above and the instructions described in clause (c) above from the Purchase Contract Agent, the Collateral Agent shall release the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and shall promptly Transfer such Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, free and clear of the lien, pledge or security interest created hereby, to the Purchase Contract Agent for the benefit of the Holders.

 

SECTION 4.2                Substitution for Treasury Securities and the Creation of Corporate Units

 

A Holder of a Treasury Unit may create or recreate a Corporate Unit by depositing with the Collateral Agent the Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, in substitution for all, but not less than all, of the Treasury Securities that are components of the Treasury Unit in accordance with this Section 4.2 and Section 3.14 of the Purchase Contract Agreement; provided, however, that if the Applicable Ownership Interest in the Treasury Portfolio has not replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, such Collateral Substitutions may only be made on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first day of the Final Three-Day Remarketing Period; and if the Treasury Portfolio has replaced the Debentures underlying the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, such Collateral Substitutions may only be made on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date. In accordance with Section 3.14 of the Purchase Contract Agreement, unless a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption has previously occurred, Holders of Treasury Units shall not be permitted to effect Collateral Substitutions during the period commencing on and including the Business Day prior to the first of the three sequential Remarketing Dates in a Three-Day Remarketing Period and ending on and including the Reset Effective Date relating to a Successful Remarketing during such Three-Day Remarketing Period or, if none of the Remarketings during such Three-Day Remarketing Period is successful, the Business Day following the last of the three sequential Remarketing Dates occurring during such Three-Day Remarketing Period. Holders of Treasury Units may make such Collateral Substitutions and establish Corporate Units (i) only in integral multiples of 20 Treasury Units if Treasury Securities are being replaced by Applicable Ownership Interest in Debentures, or (ii) only in integral multiples of _____ Treasury Units (or such other number of Treasury Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date) if any Treasury Security is being replaced by the Applicable Ownership Interest in the Treasury Portfolio.

 

For example, to create 20 Corporate Units (if a Special Event Redemption or a Mandatory Redemption has not occurred and the Applicable Ownership Interests in Debentures remain components of Corporate Units), or _____ Corporate Units (if a Special Event Redemption or a Mandatory Redemption has occurred or the Treasury Portfolio has replaced the Applicable Ownership Interests in Debentures as components of Corporate Units as a result of a Successful Remarketing) (or such other number of Corporate Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date), the Treasury Unit Holder shall

 

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(a)       if the Treasury Portfolio has not replaced the Applicable Ownership Interest in Debentures as components of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, on or prior to the second Business Day immediately preceding the first day of the Final Three-Day Remarketing Period, deposit with the Collateral Agent $1,000 in aggregate principal amount of Debentures, which Debentures must have been purchased in the open market at the expense of the Holder of the Treasury Unit, unless otherwise owned by the Holder of the Treasury Unit; or

 

(b)       if the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as a component of Corporate Units as a result of a Successful Remarketing or a Special Event Redemption or a Mandatory Redemption, on or prior to the second Business Day immediately preceding the Purchase Contract Settlement Date, deposit with the Collateral Agent the Applicable Ownership Interest in the Treasury Portfolio for each _____ Corporate Units being created by the Holder, and having an aggregate principal amount of $________, which Applicable Ownership Interest in the Treasury Portfolio must have been purchased in the open market at the expense of the Holder of Treasury Unit, unless otherwise owned by the Holder of Treasury Unit; and

 

(c)       in each case, transfer and surrender the related 20 Treasury Units, or in the event the Treasury Portfolio is a component of Corporate Units, _____ Treasury Units (or such other number of Treasury Units as may be determined by the Remarketing Agents following a Successful Remarketing if the Reset Effective Date is not a Payment Date), to the Purchase Contract Agent accompanied by an instruction to the Purchase Contract Agent, substantially in the form of Exhibit B hereto, stating that the Holder has transferred the relevant amount of Applicable Ownership Interest in Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, to the Collateral Agent and requesting that the Purchase Contract Agent instruct the Collateral Agent to release the Pledged Treasury Securities underlying such Treasury Units, whereupon the Purchase Contract Agent shall promptly give such instruction to the Collateral Agent, substantially in the form of Exhibit A hereto.

 

Upon receipt of the Debenture or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, described in clause (a) or (b) above and the instructions described in clause (c) above from the Purchase Contract Agent, the Collateral Agent shall release the Pledged Treasury Securities and shall promptly Transfer such Pledged Treasury Securities, free and clear of the lien, pledge or security interest created hereby, to the Purchase Contract Agent for the benefit of the Holders.

 

SECTION 4.3                Termination Event

 

Upon receipt by the Collateral Agent of written notice from the Company or the Purchase Contract Agent that there has occurred a Termination Event, the Collateral Agent shall release all Collateral from the Pledge and shall promptly Transfer any Debentures underlying Pledged Applicable Ownership Interests in Debentures (or, if (i) a Special Event Redemption if the proceeds thereof were used to acquire the Treasury Portfolio in accordance with the Purchase Contract Agreement, (ii) a Mandatory Redemption if the proceeds thereof were used to acquire the Treasury Portfolio in accordance with the Purchase Contract Agreement or (iii) a Successful Remarketing, as the case may be, has occurred, the Pledged Applicable Ownership Interests in the Treasury Portfolio) and Pledged Treasury Securities to the Purchase Contract Agent for the benefit of the Holders of the Corporate Units and the Treasury Units, respectively, free and clear of any lien, pledge or security interest or other interest created hereby.

 

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If such Termination Event shall result from the Company’s becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall for any reason fail promptly to effectuate the release and Transfer of all Pledged Applicable Ownership Interests in Debentures, the Pledged Applicable Ownership Interests in the Treasury Portfolio or the Pledged Treasury Securities, as the case may be, as provided by this Section 4.3, any Holder may, and the Purchase Contract Agent shall, upon receipt from the Holders of security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by the Purchase Contract Agent in compliance with this paragraph, (i) use its reasonable best efforts to obtain an opinion of a nationally recognized law firm reasonably acceptable to the Collateral Agent to the effect that, as a result of the Company being the debtor in such a bankruptcy case, the Collateral Agent will not be prohibited from releasing or Transferring the Collateral as provided in this Section 4.3, and shall deliver such opinion to the Collateral Agent within ten days after the occurrence of such Termination Event, and if (A) any such Holder or the Purchase Contract Agent shall be unable to obtain such opinion within ten days after the occurrence of such Termination Event or (B) the Collateral Agent shall continue, after delivery of such opinion, to refuse to effectuate the release and Transfer of all Pledged Applicable Ownership Interests in Debentures, the Pledged Applicable Ownership Interests in the Treasury Portfolio or the Pledged Treasury Securities, as the case may be, as provided in this Section 4.3, then any Holder may, and the Purchase Contract Agent shall within 15 days after the occurrence of such Termination Event, commence an action or proceeding in the court with jurisdiction of the Company’s case under the Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate the release and transfer of all Pledged Applicable Ownership Interests in Debentures, the Pledged Applicable Ownership Interests in the Treasury Portfolio or of the Pledged Treasury Securities, as the case may be, as provided by this Section 4.3 or (ii) commence an action or proceeding in the court with jurisdiction of the Company’s case under the Bankruptcy Code like that described in clause (i)(B) of this Section 4.3 within ten days after the occurrence of such Termination Event.

 

SECTION 4.4                Cash Settlement

 

(a)       Upon receipt by the Collateral Agent of (1) (i) a notice from the Purchase Contract Agent that a Holder of a Corporate Unit has elected, in accordance with the procedures specified in Section 5.4(a)(i) of the Purchase Contract Agreement, to settle its Purchase Contract with cash and (ii) payment by such Holder of the amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the sixth Business Day or (if all the Remarketings during the Final Three-Day Remarketing Period result in a Failed Remarketing) one Business Day, as applicable, immediately preceding the Purchase Contract Settlement Date, or (2) (i) a notice from the Purchase Contract Agent that a Holder of a Treasury Unit has elected, in accordance with the procedures specified in Section 5.4(c)(i) of the Purchase Contract Agreement, to settle its Purchase Contract with cash and (ii) payment by such Holder of the amount required to settle the Purchase Contract prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Purchase Contract Settlement Date, such payments pursuant to the foregoing clause (1) or clause (2) to be in lawful money of the United States and to be made by certified or cashiers’ check or wire transfer in immediately available funds payable to or upon the order of the Company, then the Collateral Agent shall, upon written direction of the Company, promptly invest any cash received from a Holder in connection with a Cash Settlement in Permitted Investments. Upon receipt of the proceeds, if any, upon the maturity of the Permitted Investments, the Collateral Agent shall pay the portion of such proceeds and deliver any certified or cashiers’ checks received, in an aggregate amount equal to the Purchase Price, to the Company on the Purchase Contract Settlement Date, and shall distribute any funds in respect of the interest earned from the Permitted Investments, if any, to the Purchase Contract Agent for payment to the relevant Holder.

 

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(b)       If a Holder of Corporate Units (if Applicable Ownership Interests in Debentures are components thereof) fails to notify the Purchase Contract Agent of its intention to effect a Cash Settlement in accordance with Section 5.4(a)(i) of the Purchase Contract Agreement, or if a Holder of such Corporate Units does notify the Purchase Contract Agent as provided in Section 5.4(a)(i) of the Purchase Contract Agreement of its intention to effect a Cash Settlement, but fails to make such payment as required by Section 5.4(a)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to have consented to the disposition of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures pursuant to the Remarketing as described in Section 5.4(a) of the Purchase Contract Agreement, which is incorporated herein by reference, and Section 4.6 hereof.

 

If all the Remarketings during the Final Three-Day Remarketing Period result in a Failed Remarketing as described in Section 5.4(a) of the Purchase Contract Agreement, each Holder of Corporate Units of which Applicable Ownership Interests in Debentures are components (as to which the related Purchase Contracts have not been settled with cash) shall be deemed to have exercised its Put Right, as described in the Officer’s Certificate, with respect to its Applicable Ownership Interests in Debentures, and to have elected that a portion of the Put Price equal to the principal amount of the relevant Debentures underlying such Applicable Ownership Interests in Debentures be applied against such Corporate Unit Holder’s obligations to pay the Purchase Price for the Common Stock issued in accordance with each related Purchase Contract on the Purchase Contract Settlement Date.  Following such application, such Holder’s obligations to pay the Purchase Price for the Common Stock will be deemed to be satisfied in full, and upon receipt of written confirmation from the Company that a portion of the Put Price in the amount specified in such notice has been so applied to pay the Purchase Price for the Common Stock, the Collateral Agent shall cause the Securities Intermediary to release the Debentures underlying all such Pledged Applicable Ownership Interests in Debentures from the Collateral Account and shall promptly transfer such Debentures to the Company.  Thereafter, the Collateral Agent shall promptly remit the remaining portion of the Proceeds of such Holder’s exercise of its Put Right in excess of the aggregate Purchase Price for Common Stock to be issued in accordance with each related Purchase Contract, if any, to the Purchase Contract Agent for payment to such Holder of the Corporate Units to which such Applicable Ownership Interests in Debentures relate.

 

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(c)       If a Holder of Treasury Units or Corporate Units (if the Applicable Ownership Interests in the Treasury Portfolio has replaced the Applicable Ownership Interests in Debentures as components of the Corporate Units) fails to notify the Purchase Contract Agent of its intention to effect a Cash Settlement in accordance with Section 5.4(c)(i) of the Purchase Contract Agreement, or if a Holder of Treasury Units or Corporate Units (if the Applicable Ownership Interest in the Treasury Portfolio has replaced the Applicable Ownership Interest in Debentures as components of the Corporate Units) notifies the Purchase Contract Agent as provided in Section 5.4(c)(i) of the Purchase Contract Agreement of its intention to effect a Cash Settlement, but fails to make such payment as required by Section 5.4(c)(ii) of the Purchase Contract Agreement, upon the maturity of the related Pledged Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio, if any, held by the Collateral Agent on the Business Day immediately preceding the Purchase Contract Settlement Date, the principal amount of such Pledged Treasury Securities, or the portion of the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, corresponding to such Purchase Contracts received by the Collateral Agent shall, upon written direction of the Company, be invested promptly in Permitted Investments. On the Purchase Contract Settlement Date, an aggregate amount equal to the Purchase Price will be remitted to the Company as payment of the Purchase Price of such Purchase Contracts. In the event the sum of the Proceeds from the Pledged Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, and the investment earnings earned from the Permitted Investments, if any, is in excess of the aggregate Purchase Price of the Purchase Contracts being settled thereby, the Collateral Agent will distribute such excess to the Purchase Contract Agent for the benefit of the Holder of the related Treasury Units or Corporate Units.

 

SECTION 4.5                Early Settlement; Fundamental Change Early Settlement

 

Upon written notice to the Collateral Agent by the Purchase Contract Agent that a Holder of an Equity Unit has elected to effect Early Settlement or Fundamental Change Early Settlement of its entire obligation under the Purchase Contract forming a part of such Equity Unit in accordance with the terms of the Purchase Contract and the Purchase Contract Agreement, and that the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Early Settlement Amount or Fundamental Change Early Settlement Amount, as the case may be, pursuant to the terms of the Purchase Contract and the Purchase Contract Agreement and that all conditions to such Early Settlement or Fundamental Change Early Settlement, as the case may be, have been satisfied, then the Collateral Agent shall release from the Pledge (a) the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio in the case of a Holder of Corporate Units or (b) Pledged Treasury Securities in the case of a Holder of Treasury Units, in each case that had been components of such Equity Unit, and shall transfer such Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, free and clear of the Pledge created hereby, to the Purchase Contract Agent for the benefit of such Holder.

 

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SECTION 4.6                 Application of Proceeds; Settlement

 

(a)       In the event a Holder of Corporate Units, unless the Applicable Ownership Interests in the Treasury Portfolio have replaced the Applicable Ownership Interests in Debentures as components of the Corporate Units, has not elected to make Cash Settlement by notifying the Purchase Contract Agent in the manner provided for in Section 5.4(a)(i) of the Purchase Contract Agreement or has not made an Early Settlement or a Fundamental Change Early Settlement of the Purchase Contracts underlying its Corporate Units, such Holder shall be deemed to have consented to the disposition of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures pursuant to the Remarketing as described in Section 5.4(a) of the Purchase Contract Agreement in order to pay for the shares of Common Stock to be issued under such Purchase Contract. The Collateral Agent shall by 10:00 a.m., New York City time, on the sixth Business Day immediately preceding the Purchase Contract Settlement Date, without any instruction from such Holder of Corporate Units, present the related Debentures underlying the Pledged Applicable Ownership Interests in Debentures to the Remarketing Agents for remarketing. Upon receiving such Debentures, the Remarketing Agents, pursuant to the terms of the Remarketing Agreement, will use their commercially reasonable efforts to remarket such Debentures underlying the Pledged Applicable Ownership Interests in Debentures on such date at a price equal to or greater than 100% of the aggregate Value of such Pledged Applicable Ownership Interests in Debentures plus the Remarketing Fee. The Remarketing Agents may deduct the Remarketing Fee from any portion of the proceeds from the Remarketing of the Debentures that is in excess of the sum of 100% of the aggregate Value of such Pledged Applicable Ownership Interests in Debentures and the aggregate Separate Debentures Purchase Price. Upon a Successful Remarketing and after deducting the Remarketing Fee from such Proceeds, the Remarketing Agents will remit the remaining portion of the Proceeds of a Successful Remarketing related to such Applicable Ownership Interest in Debentures to the Collateral Agent. On the Purchase Contract Settlement Date, the Collateral Agent shall apply that portion of the Proceeds from such Remarketing equal to the aggregate Value of the Pledged Applicable Ownership Interests in Debentures to satisfy in full the obligations of such Holders of Corporate Units to pay the Purchase Price for the Common Stock under the related Purchase Contracts. The remaining portion of such Proceeds, if any, shall be distributed by the Collateral Agent to the Purchase Contract Agent for payment to the Holders. If the Remarketing Agents advise the Collateral Agent in writing that they cannot remarket the related Pledged Applicable Ownership Interests in Debentures of such Holders of Corporate Units at a price not less than 100% of the aggregate Value of such Pledged Applicable Ownership Interests in Debentures, or if the Remarketing does not occur because a condition precedent to such Remarketing has not been fulfilled, thus resulting in a Failed Remarketing, the Collateral Agent will proceed as described in Section 4.4 hereof.

 

(b)       In the event a Holder of Treasury Units or, if the Treasury Portfolio has replaced the Applicable Ownership Interests in Debentures as components of Corporate Units, Corporate Units, has not made an Early Settlement or a Fundamental Change Early Settlement of the Purchase Contracts underlying its Treasury Units or Corporate Units, as the case may be, such Holder shall be deemed to have elected to pay for the shares of Common Stock to be issued under such Purchase Contracts from the Proceeds of the related Pledged Treasury Securities or the related Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be. On the Business Day immediately prior to the Purchase Contract Settlement Date, the Collateral Agent shall, at the written direction of the Purchase Contract Agent, invest the cash Proceeds of the maturing Pledged Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, in Permitted Investments. Without receiving any instruction from any such Holder of Treasury Units or Corporate Units, the Collateral Agent shall apply the Proceeds of the related Pledged Treasury Securities or Pledged Applicable Ownership Interests in the Treasury Portfolio to the settlement of the related Purchase Contracts on the Purchase Contract Settlement Date. In the event the sum of the Proceeds from the related Pledged Treasury Securities or related Pledged Applicable Ownership Interests in the Treasury Portfolio and the investment earnings from the investment in Permitted Investments, if any, is in excess of the aggregate Purchase Price of the Purchase Contracts being settled thereby on the Purchase Contract Settlement Date, the Collateral Agent shall distribute such excess, when received, to the Purchase Contract Agent for the benefit of the Holders.

 

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The Company shall not be obligated to issue any shares of Common Stock in respect of the Purchase Contracts or deliver any certificate therefor to the Holder unless it shall have received payment in full of the Purchase Price for the shares of Common Stock to be purchased thereunder.

 

(c)       Pursuant to the Remarketing Agreement, on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first Remarketing Date of the applicable Three-Day Remarketing Period, but no earlier than 5:00 p.m., New York City time, on the fifth Business Day immediately preceding such first Remarketing Date of the applicable Three-Day Remarketing Period, holders of Separate Debentures may elect to have their Separate Debentures remarketed by delivering the Separate Debentures, together with a notice of such election, substantially in the form of Exhibit C hereto, to the Custodial Agent. The Custodial Agent will hold the Separate Debentures in an account separate from the Collateral Account. A holder of Separate Debentures electing to have its Separate Debentures remarketed will also have the right to withdraw such election by written notice to the Custodial Agent, substantially in the form of Exhibit D hereto, on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first Remarketing Date of the relevant Three-Day Remarketing Period, upon which notice the Custodial Agent shall return such Separate Debentures to such holder. After such time, such election to remarket shall become an irrevocable election to have such Separate Debentures remarketed in such Remarketing. Promptly after 11:00 a.m., New York City time, on the Business Day immediately preceding the first Remarketing Date of the relevant Three-Day Remarketing Period, the Custodial Agent shall notify the Remarketing Agents of the aggregate principal amount of the Separate Debentures to be remarketed and shall deliver to the Remarketing Agents for Remarketing all Separate Debentures delivered to the Custodial Agent, and not withdrawn, pursuant to this Section 4.6(c) prior to such date. The portion of the proceeds from such remarketing equal to the aggregate Value of the Separate Debentures will automatically be remitted by the Remarketing Agents to the Custodial Agent for the benefit of the holders of the Separate Debentures.

 

(d)       In addition, after deducting the Remarketing Fee from the Value of the remarketed Separate Debentures, from any amount of such proceeds in excess of the aggregate Value of the remarketed Separate Debentures, the Remarketing Agents will remit to the Custodial Agent the remaining portion of the proceeds, if any, for the benefit of such holders. If, despite using their commercially reasonable efforts, a remarketing attempt is unsuccessful on the first Remarketing Date of a Three-Day Remarketing Period, subsequent remarketings will be attempted on each of the two following Remarketing Dates in that Three-Day Remarketing Period until a Successful Remarketing occurs. If the Remarketing Agents advise the Custodial Agent in writing that none of the three remarketings occurring during a Three-Day Remarketing Period resulted in a Successful Remarketing or, if a condition to the Remarketing shall not have been fulfilled, thus in either case resulting in a Failed Remarketing, the Remarketing Agents will promptly return the Separate Debentures to the Custodial Agent for redelivery to such holders.

 

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ARTICLE V.

 

VOTING RIGHTS — DEBENTURES

 

The Purchase Contract Agent may exercise, or refrain from exercising, any and all voting and other consensual rights pertaining to the Debentures underlying the Pledged Applicable Ownership Interests in Debentures or any part thereof for any purpose not inconsistent with the terms of this Agreement and in accordance with the terms of the Purchase Contract Agreement, including Section 4.2 thereof; provided, that the Purchase Contract Agent shall not exercise or, as the case may be, shall not refrain from exercising such right if, in the judgment of the Company evidenced in writing and delivered to the Purchase Contract Agent, such action would impair or otherwise have a material adverse effect on the value of all or any of the Pledged Applicable Ownership Interests in Debentures; and provided, further, that the Purchase Contract Agent shall give the Company and the Collateral Agent at least five days’ prior written notice of the manner in which it intends to exercise, or its reasons for refraining from exercising, any such right. Upon receipt of any notices and other communications in respect of any Pledged Applicable Ownership Interests in Debentures, including notice of any meeting at which holders of Debentures are entitled to vote or solicitation of consents, waivers or proxies of holders of Debentures, the Collateral Agent shall use reasonable efforts to send promptly to the Purchase Contract Agent such notice or communication, and as soon as reasonably practicable after receipt of a written request therefor from the Purchase Contract Agent, execute and deliver to the Purchase Contract Agent such proxies and other instruments in respect of such Pledged Applicable Ownership Interests in Debentures (in form and substance satisfactory to the Collateral Agent) as are prepared by the Purchase Contract Agent with respect to the Pledged Applicable Ownership Interests in Debentures.

 

ARTICLE VI.

 

RIGHTS AND REMEDIES; SPECIAL EVENT REDEMPTION; 
MANDATORY REDEMPTION; REMARKETING

 

SECTION 6.1                Rights and Remedies of the Collateral Agent

 

(a)       In addition to the rights and remedies specified in Section 4.4 hereof or otherwise available at law or in equity, after a default hereunder, the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (or any successor thereto) as in effect in the State of New York from time to time (the “UCC”) (whether or not the UCC is in effect in the jurisdiction where the rights and remedies are asserted) and the TRADES Regulations and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted. Wherever reference is made in this Agreement to any Section of the UCC, such reference shall be deemed to include a reference to any provision of the UCC which is a successor to, or amendment of, such Section. Without limiting the generality of the foregoing, such remedies may include, to the extent permitted by applicable law, (i) retention of the Pledged Applicable Ownership Interests in Debentures or other Collateral in full satisfaction of the Holders’ obligations under the Purchase Contracts or (ii) sale of the Pledged Applicable Ownership Interests in Debentures or other Collateral in one or more public or private sales and application of the Proceeds in full satisfaction of the Holders’ obligations under the Purchase Contracts.

 

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(b)       Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, in the event the Collateral Agent is unable to make payments to the Company on account of the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clauses (i) or (ii) of the definition of the term “Applicable Ownership Interest in the Treasury Portfolio”) or on account of principal payments of any Pledged Treasury Securities as provided in Article III hereof in satisfaction of the obligations of the Holder of the Equity Units of which such Pledged Treasury Securities, or the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of the term “Applicable Ownership Interest in the Treasury Portfolio”), as applicable, is a part under the related Purchase Contracts, the inability to make such payments shall constitute a default under the related Purchase Contracts and the Collateral Agent shall have and may exercise, with reference to such Pledged Treasury Securities, or such Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified in clauses (i) or (ii) of the definition of the term “Applicable Ownership Interest in the Treasury Portfolio”), as applicable, and such obligations of such Holder, any and all of the rights and remedies available to a secured party under the UCC and the TRADES Regulations after default by a debtor, and as otherwise granted herein or under any other law.

 

(c)       Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably authorized to receive and collect all payments of (i) principal of, or interest on, the Debentures underlying the Pledged Applicable Ownership Interests in Debentures, (ii) the principal amount of the Pledged Treasury Securities, or (iii) the Pledged Applicable Ownership Interests in the Treasury Portfolio, subject, in each case, to the provisions of Article III hereof, and as otherwise provided herein.

 

(d)       The Purchase Contract Agent individually and as attorney-in-fact for each Holder of Equity Units agrees that, from time to time, upon the written request of the Collateral Agent, the Purchase Contract Agent or such Holder, it shall execute and deliver such further documents and do such other acts and things as the Collateral Agent may reasonably request in order to maintain the Pledge, and the perfection and priority thereof, and to confirm the rights of the Collateral Agent hereunder. The Purchase Contract Agent shall have no liability to any Holder for executing any documents or taking any such acts requested by the Collateral Agent hereunder, except for liability for its own negligent act, its own negligent failure to act or its own willful misconduct, as finally determined by a court of competent jurisdiction.

 

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SECTION 6.2                Special Event Redemption; Mandatory Redemption; Remarketing

 

(a)       Upon the occurrence of a Special Event Redemption or a Mandatory Redemption prior to the Purchase Contract Settlement Date, the Collateral Agent will, upon the written instruction of the Company and the Purchase Contract Agent, deliver the Debentures underlying the Pledged Applicable Ownership Interests in Debentures to the Indenture Trustee for payment of the Redemption Price. The Collateral Agent shall, or in the event the Debentures underlying the Pledged Applicable Ownership Interests in Debentures are registered in the name of the Purchase Contract Agent, the Purchase Contract Agent shall, direct the Indenture Trustee to pay the Redemption Price therefor payable on the Special Event Redemption Date or the Mandatory Redemption Date, as the case may be, on or prior to 12:30 p.m., New York City time, by check or wire transfer in immediately available funds at such place and to such account as may be designated by the Collateral Agent. In the event the Collateral Agent receives such Redemption Price, subject to the provisions of Section 4.3 hereof, the Collateral Agent will, at the written direction of the Company, apply an amount equal to the Redemption Amount of such Redemption Price to purchase from the Quotation Agent the Treasury Portfolio and promptly remit the remaining portion of such Redemption Price to the Purchase Contract Agent for payment to the Holders of Corporate Units. The Collateral Agent shall Transfer the Treasury Portfolio to the Collateral Account to secure the obligation of all Holders of Corporate Units to purchase Common Stock of the Company under the Purchase Contracts constituting a part of such Corporate Units, in substitution for the Debentures underlying the Pledged Applicable Ownership Interests in Debentures. Thereafter the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as it had in respect of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures, as provided in Article II, Article III, Article IV, Article V and Article VI hereof, and any reference herein to the Debentures underlying the Pledged Applicable Ownership Interests in Debentures shall be deemed to be a reference to the Treasury Portfolio.

 

(b)       Upon a Successful Remarketing during the Period for Early Remarketing, the proceeds of such Remarketing with respect to the Pledged Applicable Ownership Interests in Debentures (after deducting the Remarketing Fee, if any) shall be delivered to the Collateral Agent in exchange for the Debentures underlying the Pledged Applicable Ownership Interests in Debentures. Pursuant to the terms of this Agreement, the Collateral Agent will apply an amount equal to the Treasury Portfolio Purchase Price to purchase on behalf of the Holders of Corporate Units the Treasury Portfolio and promptly remit the remaining portion, if any, of such proceeds to the Purchase Contract Agent for payment to the Holders of such Corporate Units. The Treasury Portfolio will be substituted for the Debentures underlying the Pledged Applicable Ownership Interests in Debentures, and will be held by the Collateral Agent in accordance with the terms of this Agreement to secure the obligation of each Holder of a Corporate Unit to purchase the Common Stock on the Purchase Contract Settlement Date under the Purchase Contract constituting a part of such Corporate Unit. Following a Successful Remarketing during the Period for Early Remarketing, the Holders of Corporate Units and the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as the Holders of Corporate Units and the Collateral Agent had in respect of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures subject to the Pledge thereof as provided in Article II, Article III, Article IV, Article V and Article VI hereof, and any reference herein to the Debentures underlying the Pledged Applicable Ownership Interests in Debentures shall be deemed to be reference to the Treasury Portfolio.

 

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SECTION 6.3                Remarketing During the Period for Early Remarketing

 

The Collateral Agent shall, by 10:00 a.m., New York City time, on the Business Day immediately preceding the first Remarketing Date of the applicable Three-Day Remarketing Period selected by NEE Capital pursuant to the Officer’s Certificate, without any instruction from any Holder of Corporate Units, present the Debentures underlying the Pledged Applicable Ownership Interests in Debentures to the Remarketing Agents for remarketing. Upon receiving such Debentures, the Remarketing Agents, pursuant to the terms of the Remarketing Agreement, will use their commercially reasonable efforts to remarket such Debentures, during the Three-Day Remarketing Period, at a price not less than 100% of the Treasury Portfolio Purchase Price plus the Remarketing Fee. If a Remarketing on the first Remarketing Date during the applicable Three-Day Remarketing Period is not successful, the Remarketing Agents shall, in accordance with the Remarketing Agreement, remarket the Debentures on each of the next two succeeding Remarketing Dates during such Three-Day Remarketing Period until a Successful Remarketing occurs. The Remarketing Agents may deduct the Remarketing Fee from any amount of Proceeds from such Remarketing in excess of sum of the Remarketing Treasury Portfolio Purchase Price plus the Separate Debentures Purchase Price. After deducting the Remarketing Fee, if any, the Remarketing Agents will remit the entire amount of the Proceeds of such remarketing to the Collateral Agent on or prior to 12:00 p.m., New York City time, on the Reset Effective Date. In the event the Collateral Agent receives such Proceeds with respect to the Pledged Applicable Ownership Interests in Debentures, the Collateral Agent will, at the written direction of the Company, apply an amount equal to the Treasury Portfolio Purchase Price to purchase from the Quotation Agent the Treasury Portfolio and remit the remaining portion of such Proceeds, if any, to the Purchase Contract Agent for payment to the Holders of Corporate Units. The Collateral Agent shall Transfer the Treasury Portfolio to the Collateral Account to secure the obligation of all Holders of Corporate Units to purchase Common Stock of the Company under the Purchase Contracts constituting a part of such Corporate Units, in substitution for the Debentures underlying the Pledged Applicable Ownership Interests in Debentures. Thereafter the Collateral Agent shall have such security interests, rights and obligations with respect to the Treasury Portfolio as it had in respect of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures as provided in Article II, Article III, Article IV, Article V and Article VI hereof, and any reference herein to the Debentures underlying the Pledged Applicable Ownership Interests in Debentures shall be deemed to be a reference to such Treasury Portfolio, and any reference herein to interest on the Debentures underlying the Pledged Applicable Ownership Interests in Debentures shall be deemed to be a reference to distributions on such Treasury Portfolio.

 

SECTION 6.4                Substitutions

 

Whenever a Holder has the right to substitute Treasury Securities, Debentures or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, for Collateral held by the Collateral Agent, such substitution shall not constitute a novation of the security interest created hereby.

 

ARTICLE VII.

 

REPRESENTATIONS AND WARRANTIES; COVENANTS

 

SECTION 7.1                Representations and Warranties

 

The Holders from time to time, acting through the Purchase Contract Agent as their attorney-in-fact (it being understood that the Purchase Contract Agent shall not be liable for any representation or warranty made by or on behalf of a Holder), hereby represent and warrant to the Collateral Agent, which representations and warranties shall be deemed repeated on each day a Holder Transfers Collateral that:

 

(a)       such Holder has the power to grant a security interest in and lien on the Collateral;

 

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(b)       such Holder is the sole beneficial owner of the Collateral and, in the case of Collateral delivered in physical form, is the sole holder of such Collateral and is the sole beneficial owner of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent, free and clear of any security interest, lien, encumbrance, call, liability to pay money or other restriction other than the security interest and lien granted under Article II hereof;

 

(c)       upon the Transfer of the Collateral to the Collateral Account or physical delivery of the Debentures to the Collateral Agent, the Collateral Agent, for the benefit of the Company, will have a valid and perfected first priority security interest therein (assuming that any central clearing operation or any Securities Intermediary or other entity not within the control of the Holder involved in the Transfer of the Collateral, including the Collateral Agent, gives the notices and takes the action required of it hereunder and under applicable law for perfection of that interest and assuming the establishment and exercise of control pursuant to Section 2.2 hereof); and

 

(d)       the execution and performance by the Holder of its obligations under this Agreement will not result in the creation of any security interest, lien or other encumbrance on the Collateral other than the security interest and lien granted under Article II hereof or violate any provision of any existing law or regulation applicable to it or of any mortgage, charge, pledge, indenture, contract or undertaking to which it is a party or which is binding on it or any of its assets.

 

SECTION 7.2                Covenants

 

The Holders from time to time, acting through the Purchase Contract Agent as their attorney-in-fact (it being understood that the Purchase Contract Agent shall not be liable for any covenant made by or on behalf of a Holder), hereby covenant to the Collateral Agent that for so long as the Collateral remains subject to the Pledge:

 

(a)       neither the Purchase Contract Agent nor such Holders will create or purport to create or allow to subsist any mortgage, charge, lien, pledge or any other security interest whatsoever over the Collateral or any part of it other than pursuant to this Agreement; and

 

(b)       neither the Purchase Contract Agent nor such Holders will sell or otherwise dispose (or attempt to dispose) of the Collateral or any part of it except for the beneficial interest therein, subject to the Pledge hereunder, transferred in connection with the Transfer of the Equity Units.

 

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ARTICLE VIII.

 

THE COLLATERAL AGENT

 

It is hereby agreed as follows:

 

SECTION 8.1                Appointment, Powers and Immunities

 

The Collateral Agent shall act as agent for the Company hereunder with such powers as are specifically vested in the Collateral Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. Each of the Collateral Agent, the Custodial Agent and the Securities Intermediary: (a) shall have no duties or responsibilities except those expressly set forth or incorporated by reference in this Agreement and no implied covenants or obligations shall be inferred from this Agreement against any of them, nor shall any of them be bound by the provisions of any agreement by any party hereto beyond the specific or incorporated terms hereof; (b) shall not be responsible for any recitals contained in this Agreement, or in any certificate or other document referred to or provided for in, or received by it under, this Agreement, the Equity Units or the Purchase Contract Agreement (except as specifically incorporated by reference herein), or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement (other than as against the Collateral Agent, the Custodial Agent or the Securities Intermediary), the Equity Units or the Purchase Contract Agreement or any other document referred to or provided for herein (except as specifically incorporated by reference herein) or therein or for any failure by the Company or any other Person (except the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be) to perform any of its obligations hereunder or thereunder or for the perfection, priority or, except as expressly required hereby, maintenance of any security interest created hereunder; (c) shall not be required to initiate or conduct any litigation or collection proceedings hereunder (except in the case of the Collateral Agent, pursuant to directions furnished under Section 8.2 hereof, subject to Section 8.6 hereof); (d) shall not be responsible for any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection herewith or therewith, except for its own negligence or willful misconduct; and (e) shall not be required to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, the Equity Units or other property deposited hereunder in accordance with the terms hereof. Subject to the foregoing, during the term of this Agreement, the Collateral Agent shall take all reasonable action in connection with the safekeeping and preservation of the Collateral hereunder.

 

No provision of this Agreement shall require the Collateral Agent, the Custodial Agent or the Securities Intermediary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. In no event shall the Collateral Agent, the Custodial Agent or the Securities Intermediary be liable for any amount in excess of the Value of the Collateral. Notwithstanding the foregoing, the Collateral Agent, the Custodial Agent and Securities Intermediary, each in its individual capacity, hereby waive any right of setoff, banker’s lien, liens or perfection rights as Securities Intermediary or any counterclaim with respect to any of the Collateral.

 

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SECTION 8.2                Instructions of the Company

 

The Company shall have the right, by one or more instruments in writing executed and delivered to the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, to direct the time, method and place of conducting any proceeding for the realization of any right or remedy available to the Collateral Agent, or of exercising any power conferred on the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, or to direct the taking or refraining from taking of any action authorized by this Agreement; provided, however, that (i) such direction shall not conflict with the provisions of any law or of this Agreement and (ii) the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be adequately indemnified as provided herein. Nothing in this Section 8.2 shall impair the right of the Collateral Agent in its discretion to take any action or omit to take any action which it deems proper and which is not inconsistent with such direction. The Company shall promptly confirm in writing any oral instructions furnished to the Collateral Agent by the Company.

 

SECTION 8.3                Reliance

 

Each of the Securities Intermediary, the Custodial Agent and the Collateral Agent shall be entitled conclusively to rely upon any certification, order, judgment, opinion, notice or other communication (including, without limitation, any thereof by telephone, telecopy, facsimile or electronic mail) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons (without being required to determine the correctness of any fact stated therein), and upon advice and statements of legal counsel and other experts selected by the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be. As to any matters not expressly provided for by this Agreement, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions given by the Company in accordance with this Agreement.

 

SECTION 8.4                Rights in Other Capacities

 

The Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may (without having to account therefor to the Company) accept deposits from, lend money to, make their investments in and generally engage in any kind of banking, trust or other business with the Purchase Contract Agent and any Holder of Equity Units (and any of their respective subsidiaries or affiliates) as if it were not acting as the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, and the Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may accept fees and other consideration from the Purchase Contract Agent and any Holder of Equity Units without having to account for the same to the Company; provided, that each of the Securities Intermediary, the Custodial Agent and the Collateral Agent covenants and agrees with the Company that it shall not accept, receive or permit there to be created in favor of itself and shall take no affirmative action to permit there to be created in favor of any other Person, any security interest, lien or other encumbrance of any kind in or upon the Collateral.

 

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SECTION 8.5                Non-Reliance

 

None of the Securities Intermediary, the Custodial Agent or the Collateral Agent shall be required to keep itself informed as to the performance or observance by the Purchase Contract Agent or any Holder of Equity Units of this Agreement, the Purchase Contract Agreement, the Equity Units or any other document referred to or provided for herein or therein or to inspect the properties or books of the Purchase Contract Agent or any Holder of Equity Units. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall not have any duty or responsibility to provide the Company with any credit or other information concerning the affairs, financial condition or business of the Purchase Contract Agent or any Holder of Equity Units (or any of their respective affiliates) that may come into the possession of the Collateral Agent, the Custodial Agent or the Securities Intermediary or any of their respective affiliates.

 

SECTION 8.6                Compensation and Indemnity

 

The Company agrees:

 

(a)       to pay each of the Collateral Agent, the Custodial Agent and the Securities Intermediary from time to time such compensation as shall be agreed in writing (from time to time) between the Company and the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, for all services rendered by each of them hereunder; and

 

(b)       to indemnify the Collateral Agent, the Custodial Agent and the Securities Intermediary and each of their respective directors, officers, agents and employees for, and to hold each of them harmless from and against, any loss, all claims (whether asserted by the Company, a Holder or any other Person) and liabilities and reasonable out-of-pocket expense incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of its powers and duties under this Agreement, including the reasonable out-of-pocket costs and expenses (including reasonable fees and expenses of counsel) of defending itself against any claim or liability in connection with the exercise or performance of such powers and duties.

 

The Collateral Agent, the Custodial Agent and the Securities Intermediary shall each promptly notify the Company of any third party claim which may give rise to indemnity hereunder and give the Company the opportunity to participate in the defense of such claim with counsel reasonably satisfactory to the indemnified party, and no such claim shall be settled without the written consent of the Company, which consent shall not be unreasonably withheld.

 

Without prejudice to its rights hereunder, when any of the Collateral Agent, Custodial Agent or Securities Intermediary incurs expenses after a Termination Event occurs, or renders services after a Termination Event occurs, such expenses and compensation are intended to constitute expenses of administration under the Bankruptcy Code or any applicable state bankruptcy, insolvency or other similar law.

 

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SECTION 8.7                Failure to Act

 

In the event of any ambiguity in the provisions of this Agreement or any dispute between or conflicting claims by or among the parties hereto or any other Person with respect to any funds or property deposited hereunder, the Collateral Agent and the Custodial Agent shall be entitled, after prompt notice to the Company and the Purchase Contract Agent, at its sole option, to refuse to comply with any and all claims, demands or instructions with respect to such property or funds so long as such dispute or conflict shall continue, and neither the Collateral Agent nor the Custodial Agent shall be or become liable in any way to any of the parties hereto for its failure or refusal to comply with such conflicting claims, demands or instructions. The Collateral Agent and the Custodial Agent shall be entitled to refuse to act until either (i) such conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing, satisfactory to the Collateral Agent or the Custodial Agent, as the case may be, or (ii) the Collateral Agent or the Custodial Agent, as the case may be, shall have received security or an indemnity satisfactory to the Collateral Agent or the Custodial Agent, as the case may be, sufficient to save the Collateral Agent or the Custodial Agent, as the case may be, harmless from and against any and all loss, liability or reasonable out-of-pocket expense which the Collateral Agent or the Custodial Agent, as the case may be, may without negligence, willful misconduct, or bad faith on its part incur by reason of its acting. The Collateral Agent or the Custodial Agent may in addition elect to commence an interpleader action or seek other judicial relief or orders as the Collateral Agent or the Custodial Agent, as the case may be, may deem necessary. Notwithstanding anything contained herein to the contrary, neither the Collateral Agent nor the Custodial Agent shall be required to take any action that is in its opinion contrary to law or to the terms of this Agreement, or which would in its opinion subject it or any of its officers, employees or directors to liability.

 

SECTION 8.8                Resignation of Collateral Agent or Custodial Agent

 

Subject to the appointment and acceptance of a successor Collateral Agent or Custodial Agent as provided below, (a) the Collateral Agent and the Custodial Agent may resign at any time by giving notice thereof to the Company and the Purchase Contract Agent as attorney-in-fact for the Holders of Equity Units, (b) the Collateral Agent and the Custodial Agent may be removed at any time by the Company and (c) if the Collateral Agent or the Custodial Agent fails to perform any of its material obligations hereunder in any material respect for a period of not less than 20 days after receiving written notice of such failure by the Purchase Contract Agent and such failure shall be continuing, the Collateral Agent or the Custodial Agent may be removed by the Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the Company of any removal of the Collateral Agent pursuant to clause (c) of the immediately preceding sentence. Upon any such resignation or removal, the Company shall have the right to appoint a successor Collateral Agent or Custodial Agent, as the case may be. If no successor Collateral Agent or Custodial Agent, as the case may be, shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Collateral Agent’s or Custodial Agent’s giving of notice of resignation or such removal, then the retiring Collateral Agent or Custodial Agent at the expense of the Company (other than in connection with a removal for cause pursuant to either clause (b) or (c) of the first sentence of this Section 8.8), as the case may be, may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent or Custodial Agent, as the case may be. Each of the Collateral Agent and the Custodial Agent shall be a bank which has an office in New York, New York with a combined capital and surplus of at least $50,000,000. Upon the acceptance of any appointment as Collateral Agent or Custodial Agent, as the case may be, hereunder by a successor Collateral Agent or Custodial Agent, as the case may be, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent or Custodial Agent, as the case may be, and the retiring Collateral Agent or Custodial Agent, as the case may be, shall take all appropriate action to transfer any money and property held by it hereunder (including the Collateral) to such successor. The retiring Collateral Agent or Custodial Agent shall, upon such succession, be discharged from its duties and obligations as Collateral Agent or Custodial Agent hereunder. After any retiring Collateral Agent’s or Custodial Agent’s resignation hereunder as Collateral Agent or Custodial Agent, the provisions of this Article VIII shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Collateral Agent or Custodial Agent. Any resignation or removal of the Collateral Agent hereunder shall be deemed for all purposes of this Agreement as the simultaneous resignation or removal of the Custodial Agent and the Securities Intermediary.

 

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SECTION 8.9                Right to Appoint Agent or Advisor

 

The Collateral Agent shall have the right to appoint agents or advisors in connection with any of its duties hereunder, and the Collateral Agent shall not be liable for any action taken or omitted by, or in reliance upon the advice of, such agents or advisors selected in good faith. The appointment of agents or advisors pursuant to this Section 8.9 shall be subject to prior consent of the Company, which consent shall not be unreasonably withheld.

 

SECTION 8.10              Survival

 

The provisions of this Article VIII and Section 10.7 hereof shall survive termination of this Agreement and the resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary.

 

SECTION 8.11              Exculpation

 

Anything in this Agreement to the contrary notwithstanding, in no event shall any of the Collateral Agent, the Custodial Agent or the Securities Intermediary or their officers, employees or agents be liable under this Agreement to any party for indirect, special, punitive, or consequential loss or damage of any kind whatsoever, including lost profits, whether or not the likelihood of such loss or damage was known to the Collateral Agent, the Custodial Agent or the Securities Intermediary, or any of them, incurred without any act or deed that is found to be attributable to gross negligence or willful misconduct on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary.

 

ARTICLE IX.

 

AMENDMENT

 

SECTION 9.1                Amendment Without Consent of Holders

 

Without the consent of any Holders, the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent, at any time and from time to time, may amend this Agreement, in form satisfactory to the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent, for any of the following purposes:

 

(a)       to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company;

 

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(b)       to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company so long as such covenants or such surrender do not adversely affect the validity, perfection or priority of the security interests granted or created hereunder;

 

(c)       to evidence and provide for the acceptance of appointment hereunder by a successor Collateral Agent, Custodial Agent, Securities Intermediary or Purchase Contract Agent; or

 

(d)       to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provisions herein, or to make any other provisions with respect to such matters or questions arising under this Agreement, provided such action shall not adversely affect the interests of the Holders in any material respect, provided, further, that any amendment made solely to conform the provisions of this Agreement to the description of the Equity Units, the Purchase Contracts and the other components of the Equity Units contained in the prospectus supplement, dated ________________, relating to the Equity Units will not be deemed to adversely affect the interests of the Holders.

 

SECTION 9.2                Amendment With Consent of Holders

 

With the consent of the Holders of not less than a majority of the outstanding Purchase Contracts voting together as one class, by Act of said Holders delivered to the Company, the Purchase Contract Agent or the Collateral Agent, as the case may be, the Company, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary may amend this Agreement for the purpose of modifying in any manner the provisions of this Agreement or the rights of the Holders in respect of the Equity Units; provided, however, that no such supplemental agreement shall, without the consent of the Holder of each Outstanding Equity Unit adversely affected thereby,

 

(a)       change the amount or the type of Collateral required to be Pledged to secure a Holder’s Obligations under the Purchase Contracts (except for the rights of Holders of Corporate Units to substitute the Treasury Securities for the Pledged Applicable Ownership Interests in Debentures or the Applicable Ownership Interest in the Treasury Portfolio or the rights of Holders of Treasury Units to substitute Debentures or the Applicable Ownership Interest in the Treasury Portfolio for the Pledged Treasury Securities);

 

(b)       unless such change is not adverse to the Holders, impair the right of the Holder of any Equity Unit to receive distributions on the related Collateral or otherwise adversely affect the Holder’s rights in or to such Collateral;

 

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(c)       otherwise effect any action that would require the consent of the Holder of each Outstanding Equity Unit affected thereby pursuant to the Purchase Contract Agreement if such action were effected by an agreement supplemental thereto; or

 

(d)       reduce the percentage of the outstanding Purchase Contracts the consent of whose Holders is required for any such amendment;

 

provided, that if any such supplemental amendment referred to above would adversely affect only the Corporate Units or the Treasury Units, then only Holders of the affected class of Equity Units as of the record date for the Holders entitled to vote thereon will be entitled to vote on or consent to such amendment or proposal, and such amendment or proposal shall not be effective except with the consent of Holders of not less than a majority of such class.

 

It shall not be necessary for any Act of Holders under this Section 9.2 to approve the particular form of any proposed amendment, but it shall be sufficient if such Act shall approve the substance thereof.

 

SECTION 9.3                Execution of Amendments

 

In executing any amendment permitted by this Article IX, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent shall be entitled to receive and (subject to Section 6.1 hereof, with respect to the Collateral Agent, and Section 7.1 of the Purchase Contract Agreement, with respect to the Purchase Contract Agent) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent, if any, to the execution and delivery of such amendment have been satisfied.

 

SECTION 9.4                Effect of Amendments

 

Upon the execution of any amendment under this Article IX, this Agreement shall be modified in accordance therewith, and such amendment shall form a part of this Agreement for all purposes; and every Holder of Equity Units theretofore or thereafter authenticated, executed on behalf of the Holders and delivered under the Purchase Contract Agreement shall be bound thereby.

 

SECTION 9.5                 Reference to Amendments

 

Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any amendment pursuant to this Article IX may, and shall if required by the Collateral Agent or the Purchase Contract Agent, bear a notation in form approved by the Purchase Contract Agent and the Collateral Agent as to any matter provided for in such amendment. If the Company shall so determine, Certificates so modified as to conform, in the opinion of the Collateral Agent, the Purchase Contract Agent and the Company, to any such amendment may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract Agent in accordance with the Purchase Contract Agreement in exchange for outstanding Certificates.

 

30

 

 

ARTICLE X.

 

MISCELLANEOUS

 

SECTION 10.1                No Waiver

 

No failure on the part of the Collateral Agent or any of its agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Collateral Agent or any of its agents of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.

 

SECTION 10.2                Governing Law; Waiver of Jury Trial

 

THIS AGREEMENT SHALL 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 LAWS OF ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE. Without limiting the foregoing, the above choice of law is expressly agreed to by the Company, the Securities Intermediary, the Custodial Agent, the Collateral Agent and the Holders from time to time acting through the Purchase Contract Agent, as their attorney-in-fact, in connection with the establishment and maintenance of the Collateral Account. The Company, the Collateral Agent and the Holders from time to time of the Equity Units, acting through the Purchase Contract Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New York City for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. The Company, the Collateral Agent and the Holders from time to time of the Equity Units, acting through the Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

 

EACH OF THE COMPANY, THE COLLATERAL AGENT, THE PURCHASE CONTRACT AGENT AND THE HOLDERS FROM TIME TO TIME OF THE EQUITY UNITS, ACTING THROUGH THE PURCHASE CONTRACT AGENT AS THEIR ATTORNEY-IN-FACT, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE EQUITY UNITS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

31

 

 

SECTION 10.3                Notices

 

All notices, requests, consents and other communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation, by facsimile or electronic mail) delivered to the intended recipient at the “Address for Notices” specified below its name on the signature pages hereof (or in the case of Holders, may be made and deemed given as provided in Sections 1.5 and 1.6 of the Purchase Contract Agreement) or, as to any party, at such other address as shall be designated by such party in a notice to the other parties. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given or made when transmitted by facsimile or electronic mail or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid (except as aforesaid).

 

SECTION 10.4                Successors and Assigns

 

This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Purchase Contract Agent, and the Holders from time to time of the Equity Units, by their acceptance of the same, shall be deemed to have agreed to be bound by the provisions hereof and to have ratified the agreements of, and the grant of the Pledge hereunder by, the Purchase Contract Agent.

 

SECTION 10.5                Counterparts

 

This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

 

SECTION 10.6                Separability

 

If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

 

SECTION 10.7                Expenses, etc.

 

The Company agrees to reimburse the Collateral Agent, the Custodial Agent and the Securities Intermediary for: (a) all reasonable out-of-pocket costs and expenses of the Collateral Agent, the Custodial Agent and Securities Intermediary (including, without limitation, the reasonable fees and expenses of the necessary services of a Securities Intermediary and of counsel to the Collateral Agent and the Custodial Agent), in connection with (i) the negotiation, preparation, execution and delivery or performance of this Agreement and (ii) any modification, supplement or waiver of any of the terms of this Agreement; (b) all reasonable costs and expenses of the Collateral Agent (including, without limitation, reasonable fees and expenses of counsel) in connection with (i) any enforcement or proceedings resulting or incurred in connection with causing any Holder of Equity Units to satisfy its obligations under the Purchase Contracts forming a part of the Equity Units and (ii) the enforcement of this Section 10.7; and (c) all transfer, stamp, documentary or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement or any other document referred to herein and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated hereby.

 

32

 

 

SECTION 10.8                Security Interest Absolute

 

All rights of the Collateral Agent and security interests hereunder, and all obligations of the Holders from time to time hereunder, shall be absolute and unconditional irrespective of:

 

(a)       any lack of validity or enforceability of any provision of the Purchase Contracts or the Equity Units or any other agreement or instrument relating thereto;

 

(b)       any change in the time, manner or place of payment of, or any other term of, or any increase in the amount of, all or any of the obligations of Holders of Equity Units under the related Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any departure from any requirement of, the Purchase Contract Agreement or any Purchase Contract or any other agreement or instrument relating thereto; or

 

(c)       any other circumstance which might otherwise constitute a defense available to, or discharge of, a borrower, a guarantor or a pledgor.

 

SECTION 10.9                USA Patriot Act

 

In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Collateral Agent, Custodial Agent and Securities Intermediary are required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Collateral Agent, Custodial Agent and Securities Intermediary. Accordingly, each of the parties hereto agree to provide to the Collateral Agent, Custodial Agent and Securities Intermediary, upon their written request from time to time, such identifying information and documentation as may be available to such party in order to enable the Collateral Agent, Custodial Agent and Securities Intermediary to comply with Applicable Law.

 

SECTION 10.10                Force Majeure

 

The Collateral Agent, the Custodial Agent and the Securities Intermediary shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the reasonable control of the Collateral Agent, the Custodial Agent and the Securities Intermediary (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

 

33

 

 

SECTION 10.11              Provisions Incorporated by Reference to the Purchase Contract Agreement

 

The rights, benefits, protections, immunities and indemnities that are applicable to the Purchase Contract Agent under Article VII of the Purchase Contract Agreement are, to the extent there are no provisions herein that address such rights, benefits, protections, immunities and indemnities, hereby incorporated for the benefit of the Purchase Contract Agent under this Pledge Agreement.

 

34

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

 

NEXTERA ENERGY, INC.   __________
      as Collateral Agent, Custodial
      Agent and as Securities Intermediary
         
By:     By:  
Name:     Name:  
Title:     Title:  
         
Address for Notices:      
         
NextEra Energy, Inc.   By:  
700 Universe Boulevard   Name:  
Juno Beach, Florida 33408   Title:  
Attention: Treasurer      
Telecopy: __________      

 

THE BANK OF NEW YORK MELLON,  
as Purchase Contract Agent and as attorney-in-fact for the Holders of Equity Units from time to time  
     
By:    
Name:    
Title:    

 

Address for Notices:

 

__________ 

__________ 

__________, __________ __________ 

Attention: __________ 

Telecopy: __________

 

Address for Notices: 

 

__________ 

__________ 

__________ 

__________ 

__________, __________ __________ 

Fax : __________

Attention: __________

with copies to: __________

 

__________ 

__________ 

__________, __________ __________ 

Attention: __________ 

Telecopy: __________

 

with copies to: 

 

__________ 

__________ 

__________ 

__________ 

__________, __________ __________ 

Fax : __________ 

Attention: __________ 

 

Signature Page – Pledge Agreement

 

 

 

EXHIBIT A

 

Instruction From Purchase Contract Agent to Collateral Agent

(In Connection with the Creation of [Corporate Units][Treasury Units])

 

__________

__________

__________

__________

__________, __________ __________

Attention: __________

 

Re: Securities of NextEra Energy, Inc. (the “Company”)

 

We hereby notify you in accordance with Section [4.1] [4.2] of the Pledge Agreement, dated as of ________________ (the “Pledge Agreement”), between the Company, yourselves, as Collateral Agent, Custodial Agent and Securities Intermediary and ourselves, as Purchase Contract Agent and as attorney-in-fact for the Holders of Equity Units from time to time, that the Holder of securities listed below (the “Holder”) has elected to substitute $____ [principal amount at maturity of Treasury Securities] [of the Applicable Ownership Interests in Debentures] [of the Applicable Ownership Interests in the Treasury Portfolio] in exchange for an equal Value of the [Debentures underlying the Pledged Applicable Ownership Interests in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities] held by you in accordance with the Pledge Agreement and has delivered to us a notice stating that the Holder has Transferred the [Applicable Ownership Interests in Debentures] [Applicable Ownership Interest in the Treasury Portfolio] [Treasury Securities] to you, as Collateral Agent. We hereby instruct you, upon receipt of such [Treasury Securities] [Applicable Ownership Interests in Debentures] [Applicable Ownership Interest in the Treasury Portfolio] so Transferred, to release the [Pledged Applicable Ownership Interests in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities] related to such [Equity Units] to us in accordance with the Holder’s instructions. Capitalized terms used herein but not defined shall have the meaning set forth or incorporated by reference in the Pledge Agreement.

 

Date:__________________________    
     
    By:  
    Name:    
    Title:  
      Signature Guarantee:__________________________

 

Please print name and address of registered Holder electing to substitute the [Treasury Securities] [Applicable Ownership Interests in Debentures] [Applicable Ownership Interests in the Treasury Portfolio] for the [Pledged Applicable Ownership Interest in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities]:

     

Name

Address

 

Social Security or other Taxpayer
Identification Number, if any

     
     
     

 

A-1

 

 

EXHIBIT B

 

Instruction to Purchase Contract Agent

(In Connection with the Creation of [Corporate Units][Treasury Units])

 

The Bank of New York Mellon

__________

__________

__________, __________ __________

 

Attention: Corporate Trust-Reorg

 

Re: Securities of NextEra Energy, Inc. (the “Company”)

 

The undersigned Holder hereby notifies you that it has delivered to __________, as Collateral Agent, $____ [principal amount at maturity of Treasury Securities] [of Applicable Ownership Interests in Debentures] [of Applicable Ownership Interests in the Treasury Portfolio] in exchange for an equal Value of [Pledged Applicable Ownership Interests in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities] held by the Collateral Agent, in accordance with Section [4.1] [4.2] of the Pledge Agreement, dated as of ________________ (the “Pledge Agreement”), between you, the Company and the Collateral Agent. The undersigned Holder hereby instructs you to instruct the Collateral Agent to release to you on behalf of the undersigned Holder the [Pledged Applicable Ownership Interests in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities] related to such [Corporate Units] [Treasury Units]. Capitalized terms used herein but not defined shall have the meaning set forth or incorporated by reference in the Pledge Agreement. 

 

Dated:__________________________    
   

Signature

     
   

Signature Guarantee:__________________________

     

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

     
Please print name and address of registered Holder:    
     

Name

 

Address

 

Social Security or other Taxpayer
Identification Number, if any

     
     
     

 

B-1

 

 

EXHIBIT C

Instruction to Custodial Agent Regarding Remarketing

 

__________

__________

__________

__________

__________, __________ __________

Attention: __________

 

Re: Securities of NextEra Energy Capital Holdings, Inc. (the “Company”)

 

The undersigned hereby notifies you in accordance with Section 4.6(c) of the Pledge Agreement, dated as of ________________ (the “Pledge Agreement”), between NextEra Energy, Inc., yourselves, as Collateral Agent, Custodial Agent and Securities Intermediary, and The Bank of New York Mellon, as Purchase Contract Agent and as attorney-in-fact for the Holders of Corporate Units and Treasury Units from time to time, that the undersigned elects to deliver $________ principal amount of Debentures for delivery to the Remarketing Agents on or prior to 5:00 p.m., New York City time, on the second Business Day immediately preceding the first of the three sequential Remarketing Dates of the applicable Three-Day Remarketing Period for Remarketing pursuant to Section 4.6(c) of the Pledge Agreement. The undersigned will, upon request of the Remarketing Agents, execute and deliver any additional documents deemed by the Remarketing Agents or by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Debentures tendered hereby.

 

The undersigned hereby instructs you, upon receipt of the proceeds of such remarketing, if successful, from the Remarketing Agents to deliver such proceeds to the undersigned in accordance with the instructions indicated herein under “A. Payment Instructions.” The undersigned hereby instructs you, in the event of Failed Remarketing, upon receipt of the Debentures tendered herewith from the Remarketing Agents, to deliver such Debentures to the person(s) and the address(es) indicated herein under “B. Delivery Instructions.”

 

With this notice, the undersigned hereby (i) represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Debentures tendered hereby and that the undersigned is the record owner of any Debentures tendered herewith in physical form or a participant in The Depository Trust Company (“DTC”) and the beneficial owner of any Debentures tendered herewith by book-entry transfer to your account at DTC and (ii) agrees to be bound by the terms and conditions of Section 4.6(c) of the Pledge Agreement. Capitalized terms used herein but not defined shall have the meaning set forth or incorporated by reference in the Pledge Agreement.

       
Date:__________________________      
       
    By:

    Name:   
    Title:  
      Signature Guarantee:______________________

 

C-1

 

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 
Please print name and address:
     

Name

Address

 

Social Security or other Taxpayer
Identification Number, if any

     
     
     

 

C-2

 

 

A.       PAYMENT INSTRUCTIONS   B.       DELIVERY INSTRUCTIONS
     
Proceeds of the remarketing should be paid by check in the name of the person(s) set forth below and mailed to the address set forth below.   In the event of a Failed Remarketing, Debentures which are in physical form should be delivered to the person(s) set forth below and mailed to the address set forth below.
     
Name(s)   Name(s)
     
(Please Print)   (Please Print)
     
Address   Address
     
     
     
(Please Print)   (Please Print)
     
     
(Zip Code)   (Zip Code)
     
     

(Social Security or other 

Taxpayer Identification Number, if any)

 

(Social Security or other 

Taxpayer Identification Number, if any)

     
    In the event of a Failed Remarketing, Debentures which are in book-entry form should be credited to the account at The Depository Trust Company set forth below.
     

 

______________________ 

DTC Account Number

     
    Name of Account
    Party:_________________________

 

C-3

 

 

EXHIBIT D

 

Instruction to Custodial Agent Regarding

Withdrawal From Remarketing

 

__________

__________

__________

__________

__________, __________ __________

Attention: __________

 

Re: Securities of NextEra Energy Capital Holdings, Inc.

 

The undersigned hereby notifies you in accordance with Section 4.6(c) of the Pledge Agreement, dated as of ________________ (the “Pledge Agreement”), between NextEra Energy, Inc., yourselves, as Collateral Agent, Custodial Agent and Securities Intermediary and The Bank of New York Mellon, as Purchase Contract Agent and as attorney-in-fact for the Holders of Corporate Units and Treasury Units from time to time, that the undersigned elects to withdraw the $_____ principal amount of Debentures delivered to the Custodial Agent on ____________ for remarketing pursuant to Section 4.6(c) of the Pledge Agreement. The undersigned hereby instructs you to return such Debentures to the undersigned in accordance with the undersigned’s instructions. With this notice, the undersigned hereby agrees to be bound by the terms and conditions of Section 4.6(c) of the Pledge Agreement. Capitalized terms used herein but not defined shall have the meaning set forth or incorporated by reference in the Pledge Agreement. 

     
Date:__________________________      
       
    By:

    Name:   
    Title:  
      Signature Guarantee:__________________________

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 
Please print name and address:
 
     

Name

 

Address

 

Social Security or other Taxpayer
Identification Number, if any

     
     
     

 

D-1

 

Exhibit 5(a)

 

   

Squire Patton Boggs (US) LLP

200 South Biscayne Boulevard

Suite 4700

Miami, Florida 33131

O +1 305 577 7000

F +1 305 577 7001

squirepattonboggs.com

 

March 23, 2021

 

NextEra Energy, Inc.
NextEra Energy Capital Holdings, Inc.
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408

 

Ladies and Gentlemen:

 

As counsel for NextEra Energy, Inc., a Florida corporation (“NEE”), NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”), and Florida Power & Light Company, a Florida corporation (“FPL”), we have participated in the preparation of a joint registration statement on Form S-3 (the “Registration Statement”) to be filed on or about the date hereof with the Securities and Exchange Commission (“Commission”) under the Securities Act of 1933, as amended (“Securities Act”), in connection with the registration by:

 

(a) NEE of an unspecified amount of (i) shares of its common stock, $.01 par value (“Common Stock”); (ii) shares of its preferred stock, $.01 par value (“NEE Preferred Stock”); (iii) depositary shares representing fractional interests in shares of NEE Preferred Stock (“NEE Depositary Shares”); (iv) contracts to purchase Common Stock, NEE Preferred Stock or NEE Depositary Shares or other agreements or instruments requiring it to sell Common Stock, NEE Preferred Stock or NEE Depositary Shares (collectively, “Stock Purchase Contracts”); (v) units, each representing ownership of a Stock Purchase Contract and any of debt securities of NEE Capital, debt securities of NEE or debt securities of third parties, including, but not limited to, U.S. Treasury securities (“Stock Purchase Units”); (vi) warrants to purchase Common Stock, NEE Preferred Stock or NEE Depositary Shares (“NEE Warrants”); (vii) its unsecured debt securities (“NEE Senior Debt Securities”); (viii) its subordinated debt securities (“NEE Subordinated Debt Securities”); (ix) its junior subordinated debentures (“NEE Junior Subordinated Debentures”); (x) its guarantee of NEE Capital Preferred Stock (as defined below) (“NEE Preferred Stock Guarantee”); (xi) its guarantee of NEE Capital Depositary Shares (as defined below) (“NEE Depositary Shares Guarantee”); (xii) its guarantee of NEE Capital Senior Debt Securities (as defined below) (“NEE Senior Debt Securities Guarantee”); (xiii) its subordinated guarantee of NEE Capital Subordinated Debt Securities (as defined below) (“NEE Subordinated Debt Securities Guarantee”); and (xiv) its junior subordinated guarantee of NEE Capital Junior Subordinated Debentures (as defined below) (“NEE Junior Subordinated Debentures Guarantee”);

 

45 Offices in 20 Countries

 

Squire Patton Boggs (US) LLP is part of the international legal practice Squire Patton Boggs which operates worldwide through a number of separate legal entities.

 

Please visit squirepattonboggs.com for more information

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 2 of 12

 

 

Squire Patton Boggs (US) LLP

 

(b) NEE Capital of an unspecified amount of (i) shares of its preferred stock, $.01 par value (“NEE Capital Preferred Stock”); (ii) depositary shares representing fractional interests in shares of NEE Capital Preferred Stock (“NEE Capital Depositary Shares”); (iii) its unsecured debt securities (“NEE Capital Senior Debt Securities”); (iv) its subordinated debt securities (“NEE Capital Subordinated Debt Securities”); and (v) its junior subordinated debentures (“NEE Capital Junior Subordinated Debentures”); and

 

(c) FPL of an unspecified amount of (i) shares of its Preferred Stock, $100 par value (“Serial Preferred Stock”), shares of its Preferred Stock without par value (“No Par Preferred Stock”), and any other class of preferred stock hereafter authorized by FPL’s Restated Articles of Incorporation (the “FPL Articles”) (“New Preferred Stock,” and together with the Serial Preferred Stock and the No Par Preferred Stock, “FPL Preferred Stock”); (ii) warrants to purchase FPL Preferred Stock (“FPL Warrants”); (iii) its first mortgage bonds (the “Bonds”); (iv) its unsecured debt securities (“FPL Senior Debt Securities”); and (v) its subordinated debt securities (“FPL Subordinated Debt Securities”).

 

In connection therewith, we have reviewed such documents and records as we have deemed necessary to enable us to express an opinion on the matters covered hereby. We have assumed that there will be no changes to such documents and records, or expiration thereof, after the date hereof which would affect the opinions expressed herein.

 

Based upon the foregoing, we are of the opinion that:

 

1.       The shares of Common Stock will be validly issued, fully paid and non-assessable when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“NEE Common Stock Resolutions”) approving and authorizing the issuance and sale of such Common Stock; and

 

b.       such Common Stock shall have been issued and sold in compliance with NEE’s Restated Articles of Incorporation (“NEE’s Charter”), for the consideration contemplated by the NEE Common Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

2.       The shares of NEE Preferred Stock will be validly issued, fully paid and non-assessable when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“NEE Preferred Stock Resolutions”) establishing the preferences, limitations and relative rights of such shares of NEE Preferred Stock and approving and authorizing the issuance and sale of such NEE Preferred Stock;

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 3 of 12

 

 

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b.       articles of amendment to NEE’s Charter establishing the preferences, limitations and relative rights of such NEE Preferred Stock shall have been filed with the appropriate office of the Department of State of the State of Florida; and

 

c.       such NEE Preferred Stock shall have been issued and sold in compliance with NEE’s Charter, for the consideration contemplated by the NEE Preferred Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

3.       The depositary receipts evidencing the NEE Depositary Shares will be valid, legal and binding obligations of NEE, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought (collectively, the “Exceptions”), when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the relevant terms and provisions of such NEE Depositary Shares and approving and authorizing the issuance and sale of such NEE Depositary Shares, including the adoption of the articles of amendment to NEE’s Charter establishing the preferences, limitations and relative rights of the underlying NEE Preferred Stock and the filing of the same with the appropriate office of the Department of State of the State of Florida;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), validly authorizes, executes and delivers the deposit agreement or agreements relating to the NEE Depositary Shares and the related depositary receipts, and the depositary has been appointed by NEE and such deposit agreement or agreements and the related depositary receipts have been countersigned;

 

c.       the underlying shares of NEE Preferred Stock have been deposited with a bank or trust company under the applicable deposit agreement; and

 

d.       the NEE Depositary Shares shall have been issued and sold in accordance with their respective terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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4.       The Stock Purchase Contracts and Stock Purchase Units will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the relevant terms and provisions of such Stock Purchase Contracts or Stock Purchase Units, as the case may be;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves the terms and provisions of such Stock Purchase Contracts, and approves the terms and provisions of such Stock Purchase Units, as the case may be; and

 

c.       such Stock Purchase Contracts or Stock Purchase Units, as the case may be, shall have been issued and sold in accordance with their respective terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

5.       The NEE Warrants will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the terms and provisions of such NEE Warrants;

 

b.       a warrant agreement (“NEE Warrant Agreement”) with respect to such NEE Warrants shall have been executed and delivered by a duly-authorized officer of NEE and by the warrant agent under such NEE Warrant Agreement; and

 

c.       such NEE Warrants shall have been issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

6.       The NEE Senior Debt Securities will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       an indenture (“NEE Indenture”) with respect to such NEE Senior Debt Securities shall have been executed and delivered by a duly-authorized officer of NEE and by the trustee under such NEE Indenture;

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

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b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, approves and establishes the terms and provisions of such NEE Senior Debt Securities in accordance with the NEE Indenture; and

 

c.       such NEE Senior Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

7.       The NEE Subordinated Debt Securities will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       an indenture (“NEE Subordinated Debt Indenture”) with respect to such NEE Subordinated Debt Securities shall have been executed and delivered by a duly-authorized officer of NEE and by the trustee under such NEE Subordinated Debt Indenture;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, approves and establishes the terms and provisions of such NEE Subordinated Debt Securities in accordance with the NEE Subordinated Debt Indenture; and

 

c.       such NEE Subordinated Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

8.       The NEE Junior Subordinated Debentures will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       a subordinated indenture (“NEE Junior Subordinated Debt Indenture”) with respect to such NEE Junior Subordinated Debentures shall have been executed and delivered by a duly-authorized officer of NEE and by the trustee under such NEE Junior Subordinated Debt Indenture;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, approves and establishes the terms and provisions of such NEE Junior Subordinated Debentures in accordance with the NEE Junior Subordinated Debt Indenture; and

 

c.       such NEE Junior Subordinated Debentures are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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9.       The shares of NEE Capital Preferred Stock will be validly issued, fully paid and non-assessable when:

 

a.       NEE Capital’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“NEE Capital Preferred Stock Resolutions”) establishing the preferences, limitations and relative rights of such shares of NEE Capital Preferred Stock and approving and authorizing the issuance and sale of such NEE Capital Preferred Stock;

 

b.       articles of amendment to NEE Capital’s Articles of Incorporation, as amended, establishing the preferences, limitations and relative rights of such NEE Capital Preferred Stock shall have been filed with the appropriate office of the Department of State of the State of Florida; and

 

c.       such NEE Capital Preferred Stock shall have been issued and sold in compliance with NEE Capital’s Articles of Incorporation, as amended, for the consideration contemplated by the NEE Capital Preferred Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

10.       The NEE Preferred Stock Guarantee will be a valid, legal and binding obligation of NEE, except as limited or affected by the Exceptions, when:

 

a.       a preferred stock guarantee agreement with respect to such NEE Preferred Stock Guarantee shall have been executed and delivered by a duly-authorized officer of NEE; and

 

b.       such NEE Capital Preferred Stock is issued and sold in accordance with its terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

11.       The depositary receipts evidencing the NEE Capital Depositary Shares and the NEE Depositary Shares Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       NEE Capital’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the relevant terms and provisions of such NEE Capital Depositary Shares and approving and authorizing the issuance and sale of such NEE Capital Depositary Shares, including the adoption of the articles of amendment to NEE Capital’s Charter establishing the preferences, limitations and relative rights of the underlying NEE Capital Preferred Stock and the filing of same with the appropriate office of the Department of State of the State of Florida;

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

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b.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of NEE Capital’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), validly authorizes, executes and delivers the deposit agreement or agreements relating to the NEE Capital Depositary Shares and the related depositary receipts and the depositary has been appointed by NEE Capital and such deposit agreement or agreements and the related depositary receipts have been countersigned;

 

c.       the underlying shares of NEE Capital Preferred Stock have been deposited with a bank or trust company under the applicable deposit agreement;

 

d.       a duly authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, endorses such NEE Depositary Shares Guarantee onto such NEE Capital Depositary Shares; and

 

e.      the NEE Capital Depositary Shares shall have been issued and sold in accordance with their respective terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

12.       The NEE Capital Senior Debt Securities and the NEE Senior Debt Securities Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of the Board of Directors of NEE Capital, approves and establishes the terms and provisions of such NEE Capital Senior Debt Securities in accordance with the Indenture (For Unsecured Debt Securities) dated as of June 1, 1999, as amended, between NEE Capital and The Bank of New York Mellon, as trustee; and

 

b.       such NEE Capital Senior Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

13.       The NEE Capital Subordinated Debt Securities and the NEE Subordinated Debt Securities Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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a.       an indenture (“NEE Capital Subordinated Debt Indenture”) with respect to such NEE Capital Subordinated Debt Securities shall have been executed and delivered by a duly-authorized officer of NEE Capital, by a duly-authorized officer of NEE and by the trustee under such NEE Capital Subordinated Debt Indenture;

 

b.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of the Board of Directors of NEE Capital, approves and establishes the terms and provisions of such NEE Capital Subordinated Debt Securities in accordance with the NEE Capital Subordinated Debt Indenture;

 

c.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, endorses such NEE Subordinated Debt Securities Guarantee onto such NEE Capital Subordinated Debt Securities; and

 

d.       such NEE Capital Subordinated Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

14.       The NEE Capital Junior Subordinated Debentures and the NEE Junior Subordinated Debentures Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       if such NEE Capital Junior Subordinated Debentures will not be issued pursuant to the Indenture (For Unsecured Subordinated Debt Securities) dated as of September 1, 2006, as amended (“NEE Capital 2006 Junior Subordinated Indenture”), among NEE Capital, NEE and The Bank of New York Mellon, as trustee, then an indenture (“NEE Capital New Junior Subordinated Indenture”) with respect to such NEE Capital Junior Subordinated Debentures shall have been executed and delivered by a duly-authorized officer of NEE Capital, by a duly-authorized officer of NEE and by the trustee under such NEE Capital New Junior Subordinated Indenture;

 

b.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of the Board of Directors of NEE Capital, approves and establishes the terms and provisions of such NEE Capital Junior Subordinated Debentures in accordance with the NEE Capital 2006 Junior Subordinated Indenture or the NEE Capital New Junior Subordinated Indenture;

 

c.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, endorses such NEE Junior Subordinated Debentures Guarantee onto such NEE Capital Junior Subordinated Debentures; and

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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d.       such NEE Capital Junior Subordinated Debentures are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

15.       The shares of FPL Preferred Stock will be validly issued, fully paid and non-assessable when:

 

a.       such FPL Preferred Stock is issued and sold pursuant to authority contained in an order of the Florida Public Service Commission (“FPSC”);

 

b.       with respect to New Preferred Stock, an amendment to the FPL Articles establishing the class of such New Preferred Stock, the number of authorized shares thereof and such other provisions of such New Preferred Stock as shall be required by applicable provisions of Florida law and as may be required by the FPL Articles and FPL’s bylaws shall have been approved by FPL’s Board of Directors and shareholders in accordance with the applicable provisions of Florida law, the FPL Articles and FPL’s bylaws and filed with the appropriate office of the Department of State of the State of Florida;

 

c.       FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“FPL Preferred Stock Resolutions”) establishing the preferences, limitations and relative rights of such shares of FPL Preferred Stock and approving and authorizing the issuance and sale of such FPL Preferred Stock;

 

d.       articles of amendment to the FPL Articles establishing the preferences, limitations and relative rights of such FPL Preferred Stock shall have been filed with the appropriate office of the Department of State of the State of Florida; and

 

e.       such FPL Preferred Stock shall have been issued and sold in compliance with the FPL Articles, for the consideration contemplated by the FPL Preferred Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

16.       The FPL Warrants will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions, when:

 

a.       such FPL Warrants are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the terms and provisions of such FPL Warrants;

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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c.       a warrant agreement (“FPL Warrant Agreement”) with respect to such FPL Warrants shall have been executed and delivered by a duly-authorized officer of FPL and by the warrant agent under such FPL Warrant Agreement; and

 

d.       such FPL Warrants shall have been issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

17.       The Bonds will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions or as limited or affected by other laws affecting mortgagees’ rights and remedies generally, when:

 

a.       such Bonds are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       a duly-authorized officer of FPL, acting within the authority granted by the then current resolutions of FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves and establishes the terms and provisions of the Bonds in accordance with the Mortgage and Deed of Trust dated as of January 1, 1944, as amended and supplemented, from FPL to Deutsche Bank Trust Company Americas, as trustee; and

 

c.       such Bonds are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

18.       The FPL Senior Debt Securities will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions, when:

 

a.       such FPL Senior Debt Securities are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       if such FPL Senior Debt Securities will not be issued pursuant to the Indenture (For Unsecured Debt Securities) dated as of November 1, 2017 (“FPL 2017 Indenture”), between FPL and The Bank of New York Mellon, as trustee, then an indenture (“FPL New Indenture”) with respect to such FPL Senior Debt Securities shall have been executed and delivered by a duly-authorized officer of FPL and by the trustee under such FPL New Indenture;

 

c.       a duly-authorized officer of FPL, acting within the authority granted by the then current resolutions of FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves and establishes the terms and provisions of such FPL Senior Debt Securities in accordance with the FPL 2017 Indenture or the FPL New Indenture; and

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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d.       such FPL Senior Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

19.       The FPL Subordinated Debt Securities will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions, when:

 

a.       such FPL Subordinated Debt Securities are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       an indenture (“FPL Subordinated Debt Indenture”) with respect to such FPL Subordinated Debt Securities shall have been executed and delivered by a duly-authorized officer of FPL and by the trustee under such FPL Subordinated Debt Indenture;

 

c.       a duly-authorized officer of FPL, acting within the authority granted by the then current resolutions of FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves and establishes the terms and provisions of such FPL Subordinated Debt Securities in accordance with the FPL Subordinated Debt Indenture; and

 

d.       such FPL Subordinated Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

Notwithstanding that the Registration Statement provides for the registration of an unspecified amount of the securities described above, the amount of any particular securities, as well as the aggregate amount of all such securities and any combination of such securities, that may be offered and sold as contemplated by the Registration Statement is limited to the amounts authorized from time to time by the respective board of directors (or a duly-authorized committee of the board of directors) of NEE, NEE Capital and FPL, as the case may be.

 

We consent to the reference to us in the prospectuses included in the Registration Statement under the caption “Legal Opinions,” to the references to us in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In giving the foregoing consents, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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This opinion is limited to the laws of the States of Florida and New York and the federal laws of the United States insofar as they bear on matters covered hereby. As to all matters of New York law, we have relied, with your consent, upon an opinion of even date herewith addressed to you by Morgan, Lewis & Bockius LLP, New York, New York. As to all matters of Florida law, Morgan, Lewis & Bockius LLP is hereby authorized to rely upon this opinion as though it were rendered to Morgan, Lewis & Bockius LLP.

 

  Very truly yours,
     
    /s/ Squire Patton Boggs (US) LLP
     
    SQUIRE PATTON BOGGS (US) LLP

 

 

 

 

 

Exhibit 5(b)

 

T:\TM2110104-2\TM2110104-2_NONFILING  

 

March 23, 2021

 

NextEra Energy, Inc.
NextEra Energy Capital Holdings, Inc.
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408

 

Ladies and Gentlemen:

 

As counsel for NextEra Energy, Inc., a Florida corporation (“NEE”), NextEra Energy Capital Holdings, Inc., a Florida corporation (“NEE Capital”), and Florida Power & Light Company, a Florida corporation (“FPL”), we have participated in the preparation of a joint registration statement on Form S-3 (the “Registration Statement”) to be filed on or about the date hereof with the Securities and Exchange Commission (“Commission”) under the Securities Act of 1933, as amended (“Securities Act”), in connection with the registration by:

 

(a) NEE of an unspecified amount of (i) shares of its common stock, $.01 par value (“Common Stock”); (ii) shares of its preferred stock, $.01 par value (“NEE Preferred Stock”); (iii) depositary shares representing fractional interests in shares of NEE Preferred Stock (“NEE Depositary Shares”); (iv) contracts to purchase Common Stock, NEE Preferred Stock or NEE Depositary Shares or other agreements or instruments requiring it to sell Common Stock, NEE Preferred Stock or NEE Depositary Shares (collectively, “Stock Purchase Contracts”); (v) units, each representing ownership of a Stock Purchase Contract and any of debt securities of NEE Capital, debt securities of NEE or debt securities of third parties, including, but not limited to, U.S. Treasury securities (“Stock Purchase Units”); (vi) warrants to purchase Common Stock, NEE Preferred Stock or NEE Depositary Shares (“NEE Warrants”); (vii) its unsecured debt securities (“NEE Senior Debt Securities”); (viii) its subordinated debt securities (“NEE Subordinated Debt Securities”); (ix) its junior subordinated debentures (“NEE Junior Subordinated Debentures”); (x) its guarantee of NEE Capital Preferred Stock (as defined below) (“NEE Preferred Stock Guarantee”); (xi) its guarantee of NEE Capital Depositary Shares (as defined below) (“NEE Depositary Shares Guarantee”); (xii) its guarantee of NEE Capital Senior Debt Securities (as defined below) (“NEE Senior Debt Securities Guarantee”); (xiii) its subordinated guarantee of NEE Capital Subordinated Debt Securities (as defined below) (“NEE Subordinated Debt Securities Guarantee”); and (xiv) its junior subordinated guarantee of NEE Capital Junior Subordinated Debentures (as defined below) (“NEE Junior Subordinated Debentures Guarantee”);

 

  Morgan, Lewis & Bockius LLP
   
  101 Park Avenue
  New York, NY 10178-0060 T:\TM2110104-2\TM2110104-2_NONFILING +1.212.309.6000
  United States T:\TM2110104-2\TM2110104-2_NONFILING +1.212.309.6001

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

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(b) NEE Capital of an unspecified amount of (i) shares of its preferred stock, $.01 par value (“NEE Capital Preferred Stock”); (ii) depositary shares representing fractional interests in shares of NEE Capital Preferred Stock (“NEE Capital Depositary Shares”); (iii) its unsecured debt securities (“NEE Capital Senior Debt Securities”); (iv) its subordinated debt securities (“NEE Capital Subordinated Debt Securities”); and (v) its junior subordinated debentures (“NEE Capital Junior Subordinated Debentures”); and

 

(c) FPL of an unspecified amount of (i) shares of its Preferred Stock, $100 par value (“Serial Preferred Stock”), shares of its Preferred Stock without par value (“No Par Preferred Stock”), and any other class of preferred stock hereafter authorized by FPL’s Restated Articles of Incorporation (the “FPL Articles”) (“New Preferred Stock,” and together with the Serial Preferred Stock and the No Par Preferred Stock, “FPL Preferred Stock”); (ii) warrants to purchase FPL Preferred Stock (“FPL Warrants”); (iii) its first mortgage bonds (the “Bonds”); (iv) its unsecured debt securities (“FPL Senior Debt Securities”); and (v) its subordinated debt securities (“FPL Subordinated Debt Securities”).

 

In connection therewith, we have reviewed such documents and records as we have deemed necessary to enable us to express an opinion on the matters covered hereby. We have assumed that there will be no changes to such documents and records, or expiration thereof, after the date hereof which would affect the opinions expressed herein.

 

Based upon the foregoing, we are of the opinion that:

 

1.       The shares of Common Stock will be validly issued, fully paid and non-assessable when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“NEE Common Stock Resolutions”) approving and authorizing the issuance and sale of such Common Stock; and

 

b.       such Common Stock shall have been issued and sold in compliance with NEE’s Restated Articles of Incorporation (“NEE’s Charter”), for the consideration contemplated by the NEE Common Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

2.       The shares of NEE Preferred Stock will be validly issued, fully paid and non-assessable when:

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

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a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“NEE Preferred Stock Resolutions”) establishing the preferences, limitations and relative rights of such shares of NEE Preferred Stock and approving and authorizing the issuance and sale of such NEE Preferred Stock;

 

b.       articles of amendment to NEE’s Charter establishing the preferences, limitations and relative rights of such NEE Preferred Stock shall have been filed with the appropriate office of the Department of State of the State of Florida; and

 

c.       such NEE Preferred Stock shall have been issued and sold in compliance with NEE’s Charter, for the consideration contemplated by the NEE Preferred Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

3.       The depositary receipts evidencing the NEE Depositary Shares will be valid, legal and binding obligations of NEE, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other laws affecting creditors’ rights and remedies generally and general principles of equity and to concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any matter is brought (collectively, the “Exceptions”), when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the relevant terms and provisions of such NEE Depositary Shares and approving and authorizing the issuance and sale of such NEE Depositary Shares, including the adoption of the articles of amendment to NEE’s Charter establishing the preferences, limitations and relative rights of the underlying NEE Preferred Stock and the filing of the same with the appropriate office of the Department of State of the State of Florida;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), validly authorizes, executes and delivers the deposit agreement or agreements relating to the NEE Depositary Shares and the related depositary receipts, and the depositary has been appointed by NEE and such deposit agreement or agreements and the related depositary receipts have been countersigned;

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

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c.       the underlying shares of NEE Preferred Stock have been deposited with a bank or trust company under the applicable deposit agreement; and

 

d.       the NEE Depositary Shares shall have been issued and sold in accordance with their respective terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

4.       The Stock Purchase Contracts and Stock Purchase Units will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the relevant terms and provisions of such Stock Purchase Contracts or Stock Purchase Units, as the case may be;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves the terms and provisions of such Stock Purchase Contracts, and approves the terms and provisions of such Stock Purchase Units, as the case may be; and

 

c.       such Stock Purchase Contracts or Stock Purchase Units, as the case may be, shall have been issued and sold in accordance with their respective terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

5.       The NEE Warrants will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       NEE’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the terms and provisions of such NEE Warrants;

 

b.       a warrant agreement (“NEE Warrant Agreement”) with respect to such NEE Warrants shall have been executed and delivered by a duly-authorized officer of NEE and by the warrant agent under such NEE Warrant Agreement; and

 

 

 

 

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NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

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c.       such NEE Warrants shall have been issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

6.       The NEE Senior Debt Securities will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       an indenture (“NEE Indenture”) with respect to such NEE Senior Debt Securities shall have been executed and delivered by a duly-authorized officer of NEE and by the trustee under such NEE Indenture;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, approves and establishes the terms and provisions of such NEE Senior Debt Securities in accordance with the NEE Indenture; and

 

c.       such NEE Senior Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

7.       The NEE Subordinated Debt Securities will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       an indenture (“NEE Subordinated Debt Indenture”) with respect to such NEE Subordinated Debt Securities shall have been executed and delivered by a duly-authorized officer of NEE and by the trustee under such NEE Subordinated Debt Indenture;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, approves and establishes the terms and provisions of such NEE Subordinated Debt Securities in accordance with the NEE Subordinated Debt Indenture; and

 

c.       such NEE Subordinated Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 6 of 13

 

8.       The NEE Junior Subordinated Debentures will be valid, legal and binding obligations of NEE, except as limited or affected by the Exceptions, when:

 

a.       a subordinated indenture (“NEE Junior Subordinated Debt Indenture”) with respect to such NEE Junior Subordinated Debentures shall have been executed and delivered by a duly-authorized officer of NEE and by the trustee under such NEE Junior Subordinated Debt Indenture;

 

b.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, approves and establishes the terms and provisions of such NEE Junior Subordinated Debentures in accordance with the NEE Junior Subordinated Debt Indenture; and

 

c.       such NEE Junior Subordinated Debentures are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

9.       The shares of NEE Capital Preferred Stock will be validly issued, fully paid and non-assessable when:

 

a.       NEE Capital’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“NEE Capital Preferred Stock Resolutions”) establishing the preferences, limitations and relative rights of such shares of NEE Capital Preferred Stock and approving and authorizing the issuance and sale of such NEE Capital Preferred Stock;

 

b.       articles of amendment to NEE Capital’s Articles of Incorporation, as amended, establishing the preferences, limitations and relative rights of such NEE Capital Preferred Stock shall have been filed with the appropriate office of the Department of State of the State of Florida; and

 

c.       such NEE Capital Preferred Stock shall have been issued and sold in compliance with NEE Capital’s Articles of Incorporation, as amended, for the consideration contemplated by the NEE Capital Preferred Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 7 of 13

 

10.     The NEE Preferred Stock Guarantee will be a valid, legal and binding obligation of NEE, except as limited or affected by the Exceptions, when:

 

a.       a preferred stock guarantee agreement with respect to such NEE Preferred Stock Guarantee shall have been executed and delivered by a duly-authorized officer of NEE; and

 

b.       such NEE Capital Preferred Stock is issued and sold in accordance with its terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

11.       The depositary receipts evidencing the NEE Capital Depositary Shares and the NEE Depositary Shares Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       NEE Capital’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the relevant terms and provisions of such NEE Capital Depositary Shares and approving and authorizing the issuance and sale of such NEE Capital Depositary Shares, including the adoption of the articles of amendment to NEE Capital’s Charter establishing the preferences, limitations and relative rights of the underlying NEE Capital Preferred Stock and the filing of same with the appropriate office of the Department of State of the State of Florida;

 

b.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of NEE Capital’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), validly authorizes, executes and delivers the deposit agreement or agreements relating to the NEE Capital Depositary Shares and the related depositary receipts and the depositary has been appointed by NEE Capital and such deposit agreement or agreements and the related depositary receipts have been countersigned;

 

c.       the underlying shares of NEE Capital Preferred Stock have been deposited with a bank or trust company under the applicable deposit agreement;

 

d.       a duly authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, endorses such NEE Depositary Shares Guarantee onto such NEE Capital Depositary Shares; and

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 8 of 13

 

e.       the NEE Capital Depositary Shares, shall have been issued and sold in accordance with their respective terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

12.       The NEE Capital Senior Debt Securities and the NEE Senior Debt Securities Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of the Board of Directors of NEE Capital, approves and establishes the terms and provisions of such NEE Capital Senior Debt Securities in accordance with the Indenture (For Unsecured Debt Securities) dated as of June 1, 1999, as amended, between NEE Capital and The Bank of New York Mellon, as trustee; and

 

b.       such NEE Capital Senior Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

13.       The NEE Capital Subordinated Debt Securities and the NEE Subordinated Debt Securities Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       an indenture (“NEE Capital Subordinated Debt Indenture”) with respect to such NEE Capital Subordinated Debt Securities shall have been executed and delivered by a duly-authorized officer of NEE Capital, by a duly-authorized officer of NEE and by the trustee under such NEE Capital Subordinated Debt Indenture;

 

b.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of the Board of Directors of NEE Capital, approves and establishes the terms and provisions of such NEE Capital Subordinated Debt Securities in accordance with the NEE Capital Subordinated Debt Indenture;

 

c.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, endorses such NEE Subordinated Debt Securities Guarantee onto such NEE Capital Subordinated Debt Securities; and

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 9 of 13

 

d.       such NEE Capital Subordinated Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

14.     The NEE Capital Junior Subordinated Debentures and the NEE Junior Subordinated Debentures Guarantee will be valid, legal and binding obligations of NEE Capital and NEE, respectively, except as limited or affected by the Exceptions, when:

 

a.       if such NEE Capital Junior Subordinated Debentures will not be issued pursuant to the Indenture (For Unsecured Subordinated Debt Securities) dated as of September 1, 2006, as amended (“NEE Capital 2006 Junior Subordinated Indenture”), among NEE Capital, NEE and The Bank of New York Mellon, as trustee, then an indenture (“NEE Capital New Junior Subordinated Indenture”) with respect to such NEE Capital Junior Subordinated Debentures shall have been executed and delivered by a duly-authorized officer of NEE Capital, by a duly-authorized officer of NEE and by the trustee under such NEE Capital New Junior Subordinated Indenture;

 

b.       a duly-authorized officer of NEE Capital, acting within the authority granted by the then current resolutions of the Board of Directors of NEE Capital, approves and establishes the terms and provisions of such NEE Capital Junior Subordinated Debentures in accordance with the NEE Capital 2006 Junior Subordinated Indenture or the NEE Capital New Junior Subordinated Indenture;

 

c.       a duly-authorized officer of NEE, acting within the authority granted by the then current resolutions of the Board of Directors of NEE, endorses such NEE Junior Subordinated Debentures Guarantee onto such NEE Capital Junior Subordinated Debentures; and

 

d.       such NEE Capital Junior Subordinated Debentures are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

15.       The shares of FPL Preferred Stock will be validly issued, fully paid and non-assessable when:

 

a.       such FPL Preferred Stock is issued and sold pursuant to authority contained in an order of the Florida Public Service Commission (“FPSC”);

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 10 of 13

 

b.       with respect to New Preferred Stock, an amendment to the FPL Articles establishing the class of such New Preferred Stock, the number of authorized shares thereof and such other provisions of such New Preferred Stock as shall be required by applicable provisions of Florida law and as may be required by the FPL Articles and FPL’s bylaws shall have been approved by FPL’s Board of Directors and shareholders in accordance with the applicable provisions of Florida law, the FPL Articles and FPL’s bylaws and filed with the appropriate office of the Department of State of the State of Florida;

 

c.       FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions (“FPL Preferred Stock Resolutions”) establishing the preferences, limitations and relative rights of such shares of FPL Preferred Stock and approving and authorizing the issuance and sale of such FPL Preferred Stock;

 

d.       articles of amendment to the FPL Articles establishing the preferences, limitations and relative rights of such FPL Preferred Stock shall have been filed with the appropriate office of the Department of State of the State of Florida; and

 

e.       such FPL Preferred Stock shall have been issued and sold in compliance with the FPL Articles, for the consideration contemplated by the FPL Preferred Stock Resolutions and otherwise as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

16.     The FPL Warrants will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions, when:

 

a.       such FPL Warrants are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors) shall have adopted appropriate resolutions to establish the terms and provisions of such FPL Warrants;

 

c.       a warrant agreement (“FPL Warrant Agreement”) with respect to such FPL Warrants shall have been executed and delivered by a duly-authorized officer of FPL and by the warrant agent under such FPL Warrant Agreement; and

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 11 of 13

 

d.       such FPL Warrants shall have been issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

17.     The Bonds will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions or as limited or affected by other laws affecting mortgagees’ rights and remedies generally, when:

 

a.       such Bonds are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       a duly-authorized officer of FPL, acting within the authority granted by the then current resolutions of FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves and establishes the terms and provisions of the Bonds in accordance with the Mortgage and Deed of Trust dated as of January 1, 1944, as amended and supplemented, from FPL to Deutsche Bank Trust Company Americas, as trustee; and

 

c.       such Bonds are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

18.       The FPL Senior Debt Securities will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions, when:

 

a.       such FPL Senior Debt Securities are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       if such FPL Senior Debt Securities will not be issued pursuant to the Indenture (For Unsecured Debt Securities) dated as of November 1, 2017 (“FPL 2017 Indenture”), between FPL and The Bank of New York Mellon, as trustee, then an indenture (“FPL New Indenture”) with respect to such FPL Senior Debt Securities shall have been executed and delivered by a duly-authorized officer of FPL and by the trustee under such FPL New Indenture;

 

c.       a duly-authorized officer of FPL, acting within the authority granted by the then current resolutions of FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves and establishes the terms and provisions of such FPL Senior Debt Securities in accordance with the FPL 2017 Indenture or the FPL New Indenture; and

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 12 of 13

 

d.       such FPL Senior Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

19.     The FPL Subordinated Debt Securities will be valid, legal and binding obligations of FPL, except as limited or affected by the Exceptions, when:

 

a.       such FPL Subordinated Debt Securities are issued and sold pursuant to authority contained in an order of the FPSC;

 

b.       an indenture (“FPL Subordinated Debt Indenture”) with respect to such FPL Subordinated Debt Securities shall have been executed and delivered by a duly-authorized officer of FPL and by the trustee under such FPL Subordinated Debt Indenture;

 

c.       a duly-authorized officer of FPL, acting within the authority granted by the then current resolutions of FPL’s Board of Directors (or a committee of the Board of Directors pursuant to express authority conferred on such committee by the Board of Directors), approves and establishes the terms and provisions of such FPL Subordinated Debt Securities in accordance with the FPL Subordinated Debt Indenture; and

 

d.       such FPL Subordinated Debt Securities are issued and sold in accordance with their terms and provisions and as contemplated by the Registration Statement and a prospectus supplement or other offering document or agreement relating to the sale of such securities.

 

Notwithstanding that the Registration Statement provides for the registration of an unspecified amount of the securities described above, the amount of any particular securities, as well as the aggregate amount of all such securities and any combination of such securities, that may be offered and sold as contemplated by the Registration Statement is limited to the amounts authorized from time to time by the respective board of directors (or a duly-authorized committee of the board of directors) of NEE, NEE Capital and FPL, as the case may be.

 

 

 

 

NextEra Energy, Inc.

NextEra Energy Capital Holdings, Inc.

Florida Power & Light Company

March 23, 2021

Page 13 of 13

 

We consent to the reference to us in the prospectuses included in the Registration Statement under the caption “Legal Opinions,” to the references to us in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In giving the foregoing consents, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

This opinion is limited to the laws of the States of New York and Florida and the federal laws of the United States insofar as they bear on matters covered hereby. As to all matters of Florida law, we have relied, with your consent, upon an opinion of even date herewith addressed to you by Squire Patton Boggs (US) LLP, Miami, Florida. As to all matters of New York law, Squire Patton Boggs (US) LLP is hereby authorized to rely upon this opinion as though it were rendered to Squire Patton Boggs (US) LLP.

 

  Very truly yours,
   
  /s/ Morgan, Lewis & Bockius LLP

 

 

 

Exhibit 22

 

GUARANTEED SECURITIES

 

Pursuant to Item 601(b)(22) of Regulation S-K, set forth below are securities issued by NextEra Energy Capital Holdings, Inc. (Issuer) and guaranteed by NextEra Energy, Inc. (Guarantor).

 

Issued under the Indenture (For Unsecured Debt Securities), dated as of June 1, 1999

3.625% Debentures, Series due June 15, 2023

Series I Debentures due September 1, 2021

3.55% Debentures, Series due May 1, 2027

2.80% Debentures, Series due January 15, 2023

Floating Rate Debentures, Series due May 4, 2021

Floating Rate Debentures, Series due August 28, 2021

Floating Rate Debentures, Series due February 25, 2022

2.90% Debentures, Series due April 1, 2022

3.15% Debentures, Series due April 1, 2024

3.25% Debentures, Series due April 1, 2026

3.50% Debentures, Series due April 1, 2029

Series J Debentures due September 1, 2024

2.75% Debentures, Series due November 1, 2029

1.95% Debentures, Series due September 1, 2022

Series K Debentures due March 1, 2025

2.75% Debentures, Series due May 1, 2025

2.25% Debentures, Series due June 1, 2030

Series L Debentures, Series due September 1, 2025

Floating Rate Debentures, Series due February 22, 2023

0.65% Debentures, Series due March 1, 2023

Floating Rate Debentures, Series due March 1, 2023

 

Issued under the Indenture (For Unsecured Subordinated Debt Securities), dated as of June 1, 2006

Series B Enhanced Junior Subordinated Debentures due 2066

Series C Junior Subordinated Debentures due 2067

Series K Junior Subordinated Debentures due June 1, 2076

Series L Junior Subordinated Debentures due September 29, 2057

Series M Junior Subordinated Debentures due December 1, 2077

Series N Junior Subordinated Debentures due March 1, 2079

Series O Junior Subordinated Debentures due May 1, 2079

 

 

 

Exhibit 23(a)

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 12, 2021, relating to the financial statements of NextEra Energy, Inc. (NextEra Energy) and Florida Power & Light Company (FPL), and the effectiveness of NextEra Energy’s and FPL’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of NextEra Energy and FPL for the year ended December 31, 2020, and to the reference to us under the heading "Experts" in each prospectus, which are part of this Registration Statement.

 

/s/ Deloitte & Touche LLP

 

Boca Raton, Florida

March 23, 2021

 

 

Exhibit 25(a)

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

NextEra Energy, Inc.
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of

Incorporation or organization)

59-2449419
(I.R.S. employer

identification no.)

700 Universe Boulevard

Juno Beach, Florida

(Address of principal executive offices)


33408-0420
(Zip code)

 

 

 

Stock Purchase Contracts
and Stock Purchase Units
(Title of the indenture securities)

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name  

Address

 

Superintendent of the Department of Financial Services of the State of New York   One State Street, New York, N.Y.  10004-1417, and Albany, N.Y. 12223
Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y.  10045
Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004
(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 - 

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 - 

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
     
  By: /s/         Francine Kincaid
    Name:         Francine Kincaid
    Title:           Vice President

 

- 4 - 

 

 

EXHIBIT 7

 

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

 

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS   Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

 

LIABILITIES        
         
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) 		    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  
         
EQUITY CAPITAL        
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney
Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons
Samuel C. Scott
Joseph J. Echevarria Directors 		  Directors
     

 

 

 

 

 

 

Exhibit 25(b)

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

NextEra Energy, Inc.
(Exact name of obligor as specified in its charter)

 

Florida

(State or other jurisdiction of

Incorporation or organization)

59-2449419

(I.R.S. employer

identification no.)

700 Universe Boulevard

Juno Beach, Florida

(Address of principal executive offices)

33408-0420

(Zip code)

 

 

 

Senior Debt Securities
Subordinated Debt Securities
and Junior Subordinated Debentures
(Title of the indenture securities)

 

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name   Address
Superintendent of the Department of Financial Services of the State of New York  

One State Street, New York, N.Y. 

10004-1417, and Albany, N.Y.

12223

Federal Reserve Bank of New York  

33 Liberty Street, New York, N.Y

.  10045

Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004

 

(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 - 

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 - 

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
     
  By: /s/             Francine Kincaid
    Name:       Francine Kincaid
    Title:         Vice President

 

- 4 - 

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS   Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

LIABILITIES      
       
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) 		    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  

 

EQUITY CAPITAL      
       
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney

Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons      
Samuel C. Scott     Directors
Joseph J. Echevarria      
       

 

 

Exhibit 25(c)

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)

 

240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

NextEra Energy, Inc.
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of

Incorporation or organization)

59-2449419
(I.R.S. employer

identification no.)

700 Universe Boulevard

Juno Beach, Florida

(Address of principal executive offices)


33408-0420
(Zip code)

 

 

 

Guarantee of Senior Debt Securities of NextEra Energy Capital Holdings, Inc.
(Title of the indenture securities)

 

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name   Address
Superintendent of the Department of Financial Services of the State of New York   One State Street, New York, N.Y.  10004-1417, and Albany, N.Y. 12223
Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y.  10045
Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004

 

(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 -

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 -

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
     
  By: /s/ Francine Kincaid
    Name: Francine Kincaid
    Title: Vice President

 

- 4 -

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS   Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

LIABILITIES      
       
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) 		    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  

 

EQUITY CAPITAL      
       
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney

Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons      
Samuel C. Scott     Directors
Joseph J. Echevarria      
       

 

 

 

 

Exhibit 25(d)

 


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

NextEra Energy Capital Holdings, Inc.
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of
incorporation or organization) 		59-2576416
(I.R.S. employer
identification no.)
700 Universe Boulevard
Juno Beach, Florida
(Address of principal executive offices)
33408-0420
(Zip code)

 

 

 

Senior Debt Securities
(Title of the indenture securities)

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name   Address
Superintendent of the Department of Financial Services of the State of New York   One State Street, New York, N.Y.
10004-1417, and Albany, N.Y.
12223
Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y.
10045
Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004
(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

-2-

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

-3-

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
   
  By: /s/        Francine Kincaid
    Name: Francine Kincaid
    Title:   Vice President

 

-4-

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS

  Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

LIABILITIES      
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  

Other borrowed money:

    (includes mortgage indebtedness and obligations under capitalized leases)

    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  

 

EQUITY CAPITAL      
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney
Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons

     
Samuel C. Scott     Directors
Joseph J. Echevarria      
       

 

 

Exhibit 25(e)

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
   
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

NextEra Energy Capital Holdings, Inc.
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of
incorporation or organization)

59-2576416
(I.R.S. employer
identification no.)

 

700 Universe Boulevard
Juno Beach, Florida
(Address of principal executive offices) 		33408-0420
(Zip code)

 

NextEra Energy, Inc.
(Exact name of obligor as specified in its charter)

 
Florida
(State or other jurisdiction of
Incorporation or organization)

59-2449419
(I.R.S. employer
identification no.)

 

700 Universe Boulevard
Juno Beach, Florida
(Address of principal executive offices)

 

33408-0420
(Zip code)

 

 

 

Subordinated Debt Securities
Junior Subordinated Debentures

Subordinated Guarantee of Subordinated Debt Securities
and Junior Subordinated Guarantee of Junior Subordinated Debentures
(Title of the indenture securities)

 

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name

 

 

Address

 

Superintendent of the Department of Financial Services of the State of New York   One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223
     
Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y. 10045
     
Federal Deposit Insurance Corporation   550 17th Street, NW Washington, D.C. 20429
     
The Clearing House Association L.L.C.   100 Broad Street New York, N.Y. 10004

 

(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 -

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 -

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON

 

  By: /s/ Francine Kincaid
    Name: Francine Kincaid
    Title:   Vice President

 

- 4 -

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS   Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

LIABILITIES      
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  
Other borrowed money:      
(includes mortgage indebtedness and obligations under capitalized leases)     325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  

 

EQUITY CAPITAL      
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

  Emily Portney  
  Chief Financial Officer  

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons      
Samuel C. Scott     Directors
Joseph J. Echevarria      
       

 

Exhibit 25(f)

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
   
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

NextEra Energy Capital Holdings, Inc.

(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of
incorporation or organization)

 

59-2576416
(I.R.S. employer
identification no.)

700 Universe Boulevard
Juno Beach, Florida
(Address of principal executive offices)

 


33408-0420
(Zip code)

 

NextEra Energy, Inc.
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of

Incorporation or organization)

59-2449419
(I.R.S. employer

identification no.)

700 Universe Boulevard

Juno Beach, Florida

(Address of principal executive offices)


33408-0420
(Zip code)

 

 

 

Junior Subordinated Debentures
and Junior Subordinated Guarantee of Junior Subordinated Debentures
(Title of the indenture securities)

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name   Address
Superintendent of the Department of Financial Services of the State of New York   One State Street, New York, N.Y.  10004-1417, and Albany, N.Y. 12223
     
Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y.  10045
     
Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
     
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004

 

(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 - 

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 - 

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
     
  By: /s/ Francine Kincaid
    Name: Francine Kincaid
    Title:   Vice President

 

- 4 - 

 

 

EXHIBIT 7

 

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS   Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

 

LIABILITIES        
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) 		    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  
         
EQUITY CAPITAL        
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney
Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons
Samuel C. Scott
Joseph J. Echevarria 		  Directors
     

 

 

 

 

 

Exhibit 25(g)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM T-1

 

  ¨  STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
     
  ¨  CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)

 

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

(formerly BANKERS TRUST COMPANY)

(Exact name of trustee as specified in its charter)

 

NEW YORK   13-4941247
(Jurisdiction of Incorporation or   (I.R.S. Employer
organization if not a U.S. national bank)   Identification no.)
     
60 WALL STREET    
NEW YORK, NEW YORK   10005
(Address of principal   (Zip Code)
executive offices)    

 

Deutsche Bank Trust Company Americas

Attention: Mirko Mieth

Legal Department

60 Wall Street, 36th Floor

New York, New York 10005

(212) 250 – 1663

(Name, address and telephone number of agent for service)

 

 

 


FLORIDA POWER & LIGHT COMPANY

(Exact name of obligor as specified in its charter)

 

Florida   59-0247775
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification No.)
     
700 Universe Boulevard    
Juno Beach, Florida   33408-0420
(Address of principal executive offices)   (Zip code)

 

 

 

First Mortgage Bonds
(Title of the Indenture securities)

 

 

 

 

Item 1. General Information.

 

Furnish the following information as to the trustee.

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name Address
     
  Federal Reserve Bank (2nd District) New York, NY
  Federal Deposit Insurance Corporation Washington, D.C.
  New York State Banking Department Albany, NY

 

(b) Whether it is authorized to exercise corporate trust powers.
Yes.

 

Item 2. Affiliations with Obligor.

 

If the obligor is an affiliate of the Trustee, describe each such affiliation.

 

None.

 

Item 3. -15. Not Applicable

 

Item 16. List of Exhibits.

 

  Exhibit 1 - Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810.
     
  Exhibit 2 - Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810.
     
  Exhibit 3 - Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810.
     
  Exhibit 4 - Existing By-Laws of Deutsche Bank Trust Company Americas, dated March 29, 2019, copy attached.
     
  Exhibit 5 - Not applicable.
     
  Exhibit 6 - Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810.
     
  Exhibit 7 - A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
     
  Exhibit 8 - Not Applicable.
     
  Exhibit 9 - Not Applicable.

 

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 23rd day of March, 2021.

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS
       
    By: /s/ Irina Golovashchuk
      Name: Irina Golovashchuk
      Title: Vice President

 

 

 

 

AMENDED AND RESTATED

BY-LAWS

OF

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

ARTICLE I

 

STOCKHOLDERS

 

Section 1.01. Annual Meeting. The annual meeting of the stockholders of Deutsche Bank Trust Company Americas (the “Company”) shall be held in the City of New York within the State of New York within the first four months of the Company’s fiscal year, on such date and at such time and place as the board of directors of the Company (“Board of Directors” or “Board”) may designate in the call or in a waiver of notice thereof, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.

 

Section 1.02. Special Meetings. Special meetings of the stockholders of the Company may be called by the Board of Directors or by the President, and shall be called by the President or by the Secretary upon the written request of the holders of record of at least twenty-five percent (25%) of the shares of stock of the Company issued and outstanding and entitled to vote, at such times. If for a period of thirteen months after the last annual meeting, there is a failure to elect a sufficient number of directors to conduct the business of the Company, the Board of Directors shall call a special meeting for the election of directors within two weeks after the expiration of such period; otherwise, holders of record of ten percent (10%) of the shares of stock of the Company entitled to vote in an election of directors may, in writing, demand the call of a special meeting at the office of the Company for the election of directors, specifying the date and month thereof, but not less than two nor more than three months from the date of such call. At any such special meeting called on demand of stockholders, the stockholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business.

 

Section 1.03. Notice of Meetings. Notice of the time, place and purpose of every meeting of stockholders shall be delivered personally or mailed not less than 10 nor more than 50 days before the date of such meeting (or any other action) to each stockholder of record entitled to vote, at his post office address appearing upon the records of the Company or at such other address as shall be furnished in writing by him to the Secretary of the Company for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all stockholders entitled to vote are present in person or by proxy, or if notice is waived in writing, either before or after the meeting, by those not present.

 

Section 1.04. Quorum. The holders of record of at least a majority of the shares of the stock of the Company issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, by the Company’s Organization Certificate or by these By-Laws, constitute a quorum at all meetings of the stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time until a quorum shall have been obtained.

 

Section 1.05. Organization of Meetings. Meetings of the stockholders shall be presided over by the Chairman of the Board or, if he is not present, by the President or, if he is not present, by a chairman to be chosen at the meeting. The Secretary of the Company, or in his absence an Assistant Secretary, shall act as secretary of the meeting, if present.

 

  - 1 -

 

 

Section 1.06. Voting. At each meeting of stockholders, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his name on the records of the Company. Elections of directors shall be determined by a plurality of the votes cast thereat and, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, all other action shall be determined by a majority of the votes cast at such meeting.

 

At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the stockholders present in person or by proxy entitled to vote at such election.

 

Section 1.07. Action by Consent. Except as may otherwise be provided in the Company’s Organization Certificate, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by all the holders of record of shares of the stock of the Company, issued and outstanding and entitled to vote thereon, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

 

ARTICLE II

 

DIRECTORS

 

Section 2.01. Chairman of the Board. Following the election of the Board of Directors at each annual meeting, the elected Board shall appoint one of its members as Chairman. The Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and he shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors.

 

Section 2.02. Lead Independent Director. Following the election of the Board of Directors at each annual meeting, the elected Board may appoint one of its independent members as its Lead Independent Director. When the Chairman of the Board is not present at a meeting of the Board of Directors, the Lead Independent Director, if there be one, shall preside.

 

Section 2.03. Director Emeritus. The Board of Directors may from time to time elect one or more Directors Emeritus. Each Director Emeritus shall be elected for a term expiring on the date of the regular meeting of the Board of Directors following the next annual meeting. No Director Emeritus shall be considered a "director" for purposes of these By-Laws or for any other purpose.

 

Section 2.04. Powers, Number, Quorum, Term, Vacancies, Removal. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Company and do all such lawful acts and things as are not by statute or by the Company’s Organization Certificate or by these By-Laws required to be exercised or done by the stockholders.

 

The number of directors may be changed by a resolution passed by a majority of the members of the Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote, but at all times the Board of Directors must consist of not less than seven nor more than thirty directors. No more than one-third of the directors shall be active officers or employees of the Company. At least one-half of the directors must be citizens of the United States at the time of their election and during their continuance in office.

 

  - 2 -

 

 

Except as otherwise required by law, rule or regulation, or by the Company’s Organization Certificate, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors, or such committee, as applicable. Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone or video, or other similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Whether or not a quorum shall be present at any meeting of the Board of Directors or a committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time; notice of the adjourned meeting shall be given to the directors who were not present at the time of the adjournment, but if the time and place of the adjourned meeting are announced, no additional notice shall be required to be given to the directors present at the time of adjournment.

 

Directors shall hold office until the next annual election and until their successors shall have been elected and shall have qualified. Director vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.

 

Any one or more of the directors of the Company may be removed either with or without cause at any time by a vote of the holders of record of at least a majority of the shares of stock of the Company, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the stockholders as provided in these By-Laws.

 

Section 2.05. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or without the State of New York, as may from time to time be fixed by resolution of the Board, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under applicable law, and special meetings may be held at any time upon the call of two directors, the Chairman of the Board or the President, by oral, telegraphic or written notice duly served on or sent or mailed to each director not less than two days before such meeting. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those not present.

 

Section 2.06. Compensation. The Board of Directors may determine, from time to time, the amount of compensation, which shall be paid to its members. The Board of Directors shall also have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board, or of any committee of the Board. The Board of Directors shall also have power, in its discretion, to provide for and pay to directors rendering services to the Company not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board from time to time.

 

ARTICLE III

 

COMMITTEES

 

Section 3.01. Executive Committee. There shall be an Executive Committee of the Board who shall be appointed annually by resolution adopted by the majority of the entire Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Executive Committee as the Executive Committee from time to time may designate shall preside at such meetings.

 

  - 3 -

 

 

Section 3.02. Audit and Fiduciary Committee. There shall be an Audit and Fiduciary Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of independent directors, as may from time to time be fixed by the Audit and Fiduciary Committee charter adopted by the Board of Directors.

 

Section 3.03. Other Committees. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.

 

Section 3.04. Limitations. No committee shall have the authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders' authorization under New York Banking Law; (ii) the filling of vacancies in the Board of Directors or in any such committee; (iii) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (iv) the amendment or repeal of these By-Laws, or the adoption of new by-laws;

 

(v) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable; or (vi) the taking of action which is expressly required by any provision of New York Banking Law to be taken at a meeting of the Board of Directors or by a specified proportion of the directors.

 

ARTICLE IV

 

OFFICERS

 

Section 4.01. Titles and Election. The officers of the Company, who shall be chosen by the Board of Directors within twenty-five days after each annual meeting of stockholders, shall be a President, Chief Executive Officer, Chief Risk Officer, Chief Financial Officer, Treasurer, Secretary, and a General Auditor. The Board of Directors from time to time may elect one or more Managing Directors, Directors, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person, except the offices of President and Secretary.

 

Section 4.02. Terms of Office. Each officer shall hold office for the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified.

 

Section 4.03. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.

 

Section 4.04. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

Section 4.05. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.

 

  - 4 -

 

 

Section 4.06. President. The President shall have general authority to exercise all the powers necessary for the President of the Company. In the absence of the Chairman and the Lead Independent Director, the President shall preside at all meetings of the Board of Directors and of the stockholders. The President shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the president of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.

 

Section 4.07. Chief Executive Officer. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall exercise the powers and perform the duties usual to the chief executive officer and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Company; he shall appoint and discharge employees and agents of the Company (other than officers elected by the Board of Directors); he shall see that all orders and resolutions of the Board of Directors are carried into effect; he shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the chief executive officer of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.

 

Section 4.08. Chief Risk Officer. The Chief Risk Officer shall have the responsibility for the risk management and monitoring of the Company. The Chief Risk Officer shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to his office and as from time to time may otherwise be prescribed by the Board of Directors.

 

Section 4.09. Chief Financial Officer. The Chief Financial Officer shall have the responsibility for reporting to the Board of Directors on the financial condition of the Company, preparing and submitting all financial reports required by applicable law, and preparing annual financial statements of the Company and coordinating with qualified third party auditors to ensure such financial statements are audited in accordance with applicable law.

 

Section 4.10. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys, and other valuable effects in the name and to the credit of the Company, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the directors whenever they may require it an account of all his transactions as Treasurer and of the financial condition of the Company.

 

Section 4.11. Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of proceedings in records or books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and shall perform such other duties and have such other powers as may be incident to the office of the secretary of a corporation and as from time to time may otherwise be prescribed by the Board of Directors. The Secretary shall have and be the custodian of the stock records and all other books, records and papers of the Company (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.

 

Section 4.12. General Auditor. The General Auditor shall be responsible, through the Audit and Fiduciary Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit and Fiduciary Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit and Fiduciary Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit and Fiduciary Committee may request.

 

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Section 4.13. Managing Directors, Directors and Vice Presidents. If chosen, the Managing Directors, Directors and Vice Presidents, in the order of their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. Such Managing Directors, Directors and Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and they shall perform such other duties and have such other powers as may be incident to their respective offices and as from time to time may be prescribed by the Board of Directors or the President.

 

Section 4.14. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Company, or for any other reason that the Board may deem sufficient, the Board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer.

 

ARTICLE V

 

INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS

 

Section 5.01. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made or threatened to be made a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, his or her testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which such person reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, and had no reasonable cause to believe that such person’s conduct was unlawful.

 

Section 5.02. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person, his or her testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys' fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, except that no indemnification under this Section 5.02 shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.

 

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Section 5.03. Authorization of Indemnification. Any indemnification under this Article V (unless ordered by a court) shall be made by the Company only if authorized in the specific case (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be; or (ii) if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be, has been met by such director or officer; or (y) by the stockholders upon a finding that the director or officer has met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be. A person who has been successful on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Sections 5.01 or 5.02, shall be entitled to indemnification as authorized in such section.

 

Section 5.04. Good Faith Defined. For purposes of any determination under Section 5.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The provisions of this Section 5.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be.

 

Section 5.05. Serving an Employee Benefit Plan on behalf of the Company. For the purpose of this Article V, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person's duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.

 

Section 5.06. Indemnification upon Application to a Court. Notwithstanding the failure of the Company to provide indemnification and despite any contrary resolution of the Board or stockholders under Section 5.03, or in the event that no determination has been made within ninety days after receipt of the Company of a written claim therefor, upon application to a court by a director or officer, indemnification shall be awarded by a court to the extent authorized in Section 5.01 or Section 5.02. Such application shall be upon notice to the Company. Neither a contrary determination in the specific case under Section 5.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.

 

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Section 5.07. Expenses Payable in Advance. Subject to the other provisions of this Article V, and subject to applicable law, expenses incurred in defending a civil or criminal action or proceeding may be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount (i) if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V, (ii) where indemnification is granted, to the extent expenses so advanced by the Company or allowed by a court exceed the indemnification to which such person is entitled and (iii) upon such other terms and conditions, if any, as the Company deems appropriate. Any such advancement of expenses shall be made in the sole and absolute discretion of the Company only as authorized in the specific case upon a determination made, with respect to a person who is a director or officer at the time of such determination, (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding, or (ii) if a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel or (y) by the stockholders and, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Company. Without limiting the foregoing, the Company reserves the right in its sole and absolute discretion to revoke at any time any approval previously granted in respect of any such request for the advancement of expenses or to, in its sole and absolute discretion, impose limits or conditions in respect of any such approval.

 

Section 5.08. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses granted pursuant to, or provided by, this Article V shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled whether contained in the Company’s Organization Certificate, these By-Laws or, when authorized by the Organization Certificate or these By-Laws, (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this Article V shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law.

 

Section 5.09. Insurance. Subject to the other provisions of this Article V, the Company may purchase and maintain insurance (in a single contract or supplement thereto, but not in a retrospective rated contract): (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article V, (ii) to indemnify directors and officers in instances in which they may be indemnified by the Company under the provisions of this Article V and applicable law, and (iii) to indemnify directors and officers in instances in which they may not otherwise be indemnified by the Company under the provisions of this Article V, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York Superintendent of Financial Services, for a retention amount and for co-insurance. Notwithstanding the foregoing, any such insurance shall be subject to the provisions of, and the Company shall comply with the requirements set forth in, Section 7023 of the New York State Banking Law.

 

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Section 5.10. Limitations on Indemnification and Insurance. All indemnification and insurance provisions contained in this Article V are subject to any limitations and prohibitions under applicable law, including but not limited to Section 7022 (with respect to indemnification, advancement or allowance) and Section 7023 (with respect to insurance) of the New York State Banking Law and the Federal Deposit Insurance Act (with respect to administrative proceedings or civil actions initiated by any federal banking agency). Notwithstanding anything contained in this Article V to the contrary, no indemnification, advancement or allowance shall be made (i) to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (ii) in any circumstance where it appears (a) that the indemnification would be inconsistent with a provision of the Company’s Organization Certificate, these By-Laws, a resolution of the Board or of the stockholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) if there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.

 

Notwithstanding anything contained in this Article V to the contrary, but subject to any requirements of applicable law, (i) except for proceedings to enforce rights to indemnification (which shall be governed by Section 5.06), the Company shall not be obligated to indemnify any director or officer (or his testators intestate) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company, (ii) with respect to indemnification or advancement of expenses relating to attorneys’ fees under this Article V, counsel for the present or former director or officer must be reasonably acceptable to the Company (and the Company may, in its sole and absolute discretion, establish a panel of approved law firms for such purpose, out of which the present or former director or officer could be required to select an approved law firm to represent him), (iii) indemnification in respect of amounts paid in settlement shall be subject to the prior consent of the Company (not to be unreasonably withheld), (iv) any and all obligations of the Corporation under this Article V shall be subject to applicable law, (v) in no event shall any payments pursuant to this Article V be made if duplicative of any indemnification or advancement of expenses or other reimbursement available to the applicable director or officer (other than for coverage maintained by such person in his individual capacity), and (vi) no indemnification or advancement of expenses shall be provided under these By-Laws to any person in respect of any expenses, judgments, fines or amounts paid in settlement to the extent incurred by such person in his capacity or position with another entity (including, without limitation, an entity that is a stockholder of the Company or any of the branches or affiliates of such stockholder), except as expressly provided in these By-Laws in respect of such person’s capacity and position as a director or officer of the Company or such person is a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

 

Section 5.11. Indemnification of Other Persons. The Company may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses (whether pursuant to an adoption of a policy or otherwise) to employees and agents of the Company (whether similar to those conferred in this Article V upon directors and officers of the Company or on other terms and conditions authorized from time to time by the Board of Directors), as well as to employees of direct and indirect subsidiaries of the Company and to other persons (or categories of persons) approved from time to time by the Board of Directors.

 

  - 9 -

 

 

Section 5.12. Repeal. Any repeal or modification of this Article V shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Company existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

 

ARTICLE VI

 

CAPITAL STOCK

 

Section 6.01. Certificates. The interest of each stockholder of the Company shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board or the President or a Managing Director or a Director or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Company or a facsimile thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Company or its employee, or registered by a registrar other than the Company or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Company, whether because of death, resignation, retirement, disqualification, removal or otherwise, before such certificate or certificates shall have been delivered by the Company, such certificate or certificates may nevertheless be adopted by the Company and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Company.

 

Section 6.02. Transfer. The shares of stock of the Company shall be transferred only upon the books of the Company by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Company or its agents may reasonably require.

 

Section 6.03. Record Dates. The Board of Directors may fix in advance a date, not less than 10 nor more than 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.

 

Section 6.04. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of the same tenor and for the same number of shares in lieu thereof. The Board may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate or the legal representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary and to give the Company a bond in such reasonable sum as it directs to indemnify the Company.

 

  - 10 -

 

 

ARTICLE VII

 

CHECKS, NOTES, ETC.

 

Section 7.01. Checks, Notes, Etc. All checks and drafts on the Company's bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, may be signed by the President or any Managing Director or any Director or any Vice President and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized from time to time by the Board of Directors.

 

ARTICLE VIII

 

MISCELLANEOUS PROVISIONS

 

Section 8.01. Fiscal Year. The fiscal year of the Company shall be from January 1 to December 31, unless changed by the Board of Directors.

 

Section 8.02. Books. There shall be kept at such office of the Company as the Board of Directors shall determine, within or without the State of New York, correct books and records of account of all its business and transactions, minutes of the proceedings of its stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the stockholders, the number of shares held by them, respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.

 

Section 8.03. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Company, other than stock of the Company, shall be voted, in person or by proxy, by the President or any Managing Director or any Director or any Vice President of the Company on behalf of the Company.

 

ARTICLE IX

 

AMENDMENTS

 

Section 9.01. Amendments. The vote of the holders of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote shall be necessary at any meeting of stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire Board, provided that any by-law adopted by the Board may be amended or repealed by the stockholders in the manner set forth above.

 

Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board of Directors or the stockholders or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Company issued and outstanding and entitled to vote are present at such meeting.

 

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12345_FPL_PAGE012.JPG DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 New York, NY 10005 Federal Financial Institutions Examination Council Board of Governors of the Federal Reserve System OMB Number 7100-0036 Federal Deposit Insurance CorporationOMB Number 3064-0052 Office of the Comptroller of the CurrencyOMB Number 1557-0081 Approval expires December 31, 2020 Page 1 of 87 Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 Report at the close of business December 31, 202020201231 (RCON 9999) This report is required by law: 12 U.S.C. § 324 (State member This report form is to be filed by banks with domestic offices only banks); 12 U.S.C. §1817 (State nonmember banks); 12 U.S.C. §161 and total consolidated assets of less than $100 billion, except (National banks); and 12 U.S.C. §1464 (Savings associations).those banks that file the FFIEC 051, and those banks that are advanced approaches institutions for regulatory capital purposes Unless the context indicates otherwise, the term "bank" in this that are required to file the FFIEC 031. report form refers to both banks and savings associations. NOTE: Each bank’s board of directors and senior management are schedules) for this report date have been prepared in confor-responsible for establishing and maintaining an effective system of mance with the instructions issued by the appropriate Federal internal control, including controls over the Reports of Condition and regulatory authority and are true and correct to the best of my Income. The Reports of Condition and Income are to be prepared in knowledge and belief. accordance with federal regulatory authority instructions. The Reports of Condition and Income must be signed by the Chief Financia We, the undersigned directors (trustees), attest to the correctness Officer (CFO) of the reporting bank (or by the individual performing an of the Reports of Condition and Income (including the supporting equivalent function) and attested to by not less than two directors schedules) for this report date and declare that the Reports of (trustees) for state nonmember banks and three directors for state Condition and Income have been examined by us and to the best member banks, national banks, and savings associations.of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory I, the undersigned CFO (or equivalent) of the named bank, attest authority and are true and correct. that the Reports of Condition and Income (including the supporting Director (Trustee) Signature of Chief Financial Officer (or Equivalent)Director (Trustee) 01/30/2021 Date of SignatureDirector (Trustee) Submission of Reports Each bank must file its Reports of Condition and Income (Call To fulfill the signature and attestation requirement for the Reports Report) data by either:of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer gener-Using computer software to prepare its Call Report and then ated version of this page) to the hard-copy record of the data file submitting the report data directly to the FFIEC’s Central Data submitted to the CDR that your bank must place in its files. Repository (CDR), an Internet-based system for data collec-tion (https://cdr.ffiec.gov/cdr/), orThe appearance of your bank’s hard-copy record of the submitted Completing its Call Report in paper form and arranging with a data file need not match exactly the appearance of the FFIEC’s software vendor or another party to convert the data into the sample report forms, but should show at least the caption of each electronic format that can be processed by the CDR. The Call Report item and the reported amount. software vendor or other party then must electronically submit the bank’s data file to the CDR.DEUTSCHE BANK TRUST COMPANY AMERICAS Legal Title of Bank (RSSD 9017) For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by New York fax at (703) 774-3946, or by e-mail at cdr.help@cdr.ffiec.gov.City (RSSD 9130) (Report only if your institution already has an LEI.) (RCON 9224) The estimated average burden associated with this information collection is 51.02 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429. 12/2020 06/2012

 

 

12345_FPL_PAGE013.JPG DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 New York, NY 10005 Consolidated Report of Condition for Insured Banks and Savings Associations for December 31, 2020 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC—Balance Sheet FFIEC 041 Page 17 of 87 RC-1 Dollar Amounts in Thousands RCON Amount Assets Cash and balances due from depository institutions (from Schedule RC-A) Noninterest-bearing balances and currency and coin (1)…………………………….…….…..... b. Interest-bearing balances (2)………………………………………………………........................ Securities: Held-to-maturity securities (from Schedule RC-B, column A) (3)……………………………........ Available-for-sale debt securities (from Schedule RC-B, column D)…………………….……... Equity securities with readily determinable fair values not held for trading (4)………………… Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold………………………………………………………......................................... b. Securities purchased under agreements to resell (5, 6)…………………………......................... 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale………………………………………………………..……............. 0081 25,000 0071 18,025,000 JJ34 0 1773 1,121,000 JA22 6,000 B987 0 B989 12,095,000 5369 0 Loans and leases held for investment………………....................... LESS: Allowance for loan and lease losses…………….................. B528 12,206,000 3123 18,000 d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7)………........... 5. Trading assets (from Schedule RC-D)…………………………………………………….……........... Premises and fixed assets (including capitalized leases)……………………………………............ Other real estate owned (from Schedule RC-M)………………………………………………........... Investments in unconsolidated subsidiaries and associated companies……………………........... 9. Direct and indirect investments in real estate ventures...................................……........................ 10. Intangible assets (from Schedule RC-M)……………………………………………………………… 11. Other assets (from Schedule RC-F) (6)……………………………………………………………........ 12. Total assets (sum of items 1 through 11)………………………………………………………........... Liabilities Deposits: In domestic offices (sum of totals of columns A and C from Schedule RC-E)………………… B529 12,188,000 3545 0 2145 13,000 2150 1,000 2130 0 3656 0 2143 18,000 2160 1,820,000 2170 45,312,000 2200 33,657,000 (1) Noninterest-bearing (8)………………………………………… (2) Interest-bearing…………………………………………………… 6631 10,947,000 6636 22,710,000 b. Not applicable Federal funds purchased and securities sold under agreements to repurchase: a. Federal funds purchased (9)………………………………………..………….............................. b. Securities sold under agreements to repurchase (10)…………………………………………… Trading liabilities (from Schedule RC-D)…………………………………………………..…………... Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M)...................... and 18. Not applicable 19. Subordinated notes and debentures (11)……………………………………………………………… B993 0 B995 0 3548 0 3190 250,000 3200 0 1.b. 2.a. 2.b. 2.c. 3.a. 3.b. 4.a. 4.b. 4.c. 4.d. 5. 6. 7. 8. 9. 10. 11. 12. 13.a. 13.a.(1) 13.a.(2) 14.a. 14.b. 15. 16. Includes cash items in process of collection and unposted debits. Includes time certificates of deposit not held for trading. Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. 19. Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for "Securities Activities" for further detail on accounting for investments in equity securities . Includes all securities resale agreements, regardless of maturity. Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. Includes noninterest-bearing demand, time, and savings deposits. Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, "Other borrowed money." Includes all securities repurchase agreements, regardless of maturity. Includes limited-life preferred stock and related surplus. 12/2020 06/2012

 

 

12345_FPL_PAGE014.JPG DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 New York, NY 10005 Schedule RC—Continued FFIEC 041 Page 18 of 87 RC-2 Dollar Amounts in Thousands RCONAmount Equity Capital Bank Equity Capital 23. Perpetual preferred stock and related surplus………………………………………………………………… 38380 23. 24. Common stock……………………………………………………………………………………………….………32302,127,000 24. 25. Surplus (exclude all surplus related to preferred stock)………………………………………………..……… 3839933,000 25. 26. a Retained earnings………………………………………………………………………………………..……… 36326,234,000 26.a. b Accumulated other comprehensive income (1)………………………………………………………….…… B530(1,000) 26.b. c Other equity capital components (2)……………………………………………………………………………A1300 26.c. 27. a Total bank equity capital (sum of items 23 through 26.c)………………………………………………….. 32109,293,000 27.a. b Noncontrolling (minority) interests in consolidated subsidiaries…………………………………….……... 30000 27.b. 28. Total equity capital (sum of items 27.a and 27.b)………………………………………………………..………G1059,293,000 28. 29. Total liabilities and equity capital (sum of items 21 and 28)……………………………………………..…… 330045,312,000 29. Memoranda To be reported with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2019……………………………………………………………………………………............. RCON Number 6724 NA 1a = An integrated audit of the reporting institution’s financial2b = An audit of the reporting institution's parent holding company's statements and its internal control over financial reportingconsolidated financial statements only conducted in conducted in accordance with the standards of the Americanaccordance with the auditing standards of the AICPA or the Institute of Certified Public Accountants (AICPA) or PublicPCAOB by an independent public accountant that submits a Company Accounting Oversight Board (PCAOB) by an indepen-report on the consolidated holding company (but not on the dent public accountant that submits a report on the institutioninstitution separately) 1b = An audit of the reporting institution's financial statements only3 = This number is not to be used conducted in accordance with the auditing standards of the4 = Directors’ examination of the bank conducted in accordance AICPA or the PCAOB by an independent public accountant thatwith generally accepted auditing standards by a certified public submits a report on the institutionaccounting firm (may be required by state-chartering authority) 2a = An integrated audit of the reporting institution's parent holding5 = Directors’ examination of the bank performed by other external company's consolidated financial statements and its internalauditors (may be required by state-chartering authority) control over financial reporting conducted in accordance with the6 = Review of the bank’s financial statements by external auditors standards of the AICPA or the PCAOB by an independent public7 = Compilation of the bank’s financial statements by external accountant that submits a report on the consolidated holdingauditors company (but not on the institution separately)8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work RCON Date 8678 NA 2. Bank's fiscal year-end date (report the date in MMDD format)................................................................... M.2. Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. Includes treasury stock and unearned Employee Stock Ownership Plan shares. 06/2012

 

 

 

 

Exhibit 25(h)

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

Florida Power & Light Company
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of
incorporation or organization) 		59-0247775
(I.R.S. employer
identification no.)
700 Universe Boulevard
Juno Beach, Florida
(Address of principal executive offices) 		33408-0420
(Zip code)

 

 

 

Senior Debt Securities
(Title of the indenture securities)

 

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

Name   Address

Superintendent of the Department of

Financial Services of the State of New

York

 

One State Street, New York, N.Y.

10004-1417, and Albany, N.Y.

12223

Federal Reserve Bank of New York  

33 Liberty Street, New York, N.Y.

10045

Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004

 

(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 -

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 -

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
     
  By: /s/               Francine Kincaid
    Name:       Francine Kincaid
    Title:         Vice President

 

- 4 -

 

 

Exhibit 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS   Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

LIABILITIES      
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) 		    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  

 

EQUITY CAPITAL      
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney

Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons      
Samuel C. Scott     Directors
Joseph J. Echevarria      
       

 

 

Exhibit 25(i)

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           ¨

 

 

 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank) 		13-5160382
(I.R.S. employer
identification no.)
   
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) 		10286
(Zip code)

 

 

 

Florida Power & Light Company
(Exact name of obligor as specified in its charter)

 

Florida
(State or other jurisdiction of
incorporation or organization)

59-0247775
(I.R.S. employer
identification no.)

 

700 Universe Boulevard
Juno Beach, Florida
(Address of principal executive offices) 		33408-0420
(Zip code)

 

 

 

 

Senior Debt Securities
Subordinated Debt Securities
(Title of the indenture securities)

 

 

 

 

1. General information. Furnish the following information as to the Trustee:

 

(a) Name and address of each examining or supervising authority to which it is subject.

 

 

Name

 

  Address
Superintendent of the Department of
Financial Services of the State of New
York 		  One State Street, New York, N.Y.  
10004-1417, and Albany, N.Y.
12223
     
Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y.  
10045
     
Federal Deposit Insurance Corporation   550 17th Street, NW
Washington, D.C.  20429
     
The Clearing House Association L.L.C.   100 Broad Street
New York, N.Y. 10004

 

(b) Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2. Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16. List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

- 2 -

 

 

4. A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).

 

6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

- 3 -

 

 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 18th day of March, 2021.

 

  THE BANK OF NEW YORK MELLON
   
   
  By: /s/       Francine Kincaid
    Name: Francine Kincaid
    Title:   Vice President

 

- 4 -

 

 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business December 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS

  Dollar amounts in thousands  
Cash and balances due from depository institutions:        
Noninterest-bearing balances and currency and coin     5,412,000  
Interest-bearing balances     155,123,000  
Securities:        
Held-to-maturity securities     47,940,000  
Available-for-sale debt securities     105,304,000  
Equity securities with readily determinable fair values not held for trading     64,000  
Federal funds sold and securities purchased under agreements to resell:        
Federal funds sold in domestic offices     0  
Securities purchased under agreements to resell     12,902,000  
Loans and lease financing receivables:        
Loans and leases held for sale     0  
Loans and leases held for investment     25,616,000  
LESS: Allowance for loan and lease losses     320,000  
Loans and leases held for investment, net of allowance     25,296,000  
Trading assets     8,415,000  
Premises and fixed assets (including capitalized leases)     3,099,000  
Other real estate owned     1,000  
Investments in unconsolidated subsidiaries and associated companies     1,690,000  
Direct and indirect investments in real estate ventures     0  
Intangible assets     7,030,000  
Other assets     14,239,000  
Total assets     386,515,000  

 

 

 

LIABILITIES      
Deposits:        
In domestic offices     208,980,000  
Noninterest-bearing     83,359,000  
Interest-bearing     125,621,000  
In foreign offices, Edge and Agreement subsidiaries, and IBFs     133,019,000  
Noninterest-bearing     6,242,000  
Interest-bearing     126,777,000  
Federal funds purchased and securities sold under agreements to repurchase:        
Federal funds purchased in domestic offices     0  
Securities sold under agreements to repurchase     2,381,000  
Trading liabilities     3,644,000  

Other borrowed money:

   (includes mortgage indebtedness and obligations under capitalized leases)

    325,000  
Not applicable        
Not applicable        
Subordinated notes and debentures     0  
Other liabilities     8,910,000  
Total liabilities     357,259,000  

 

EQUITY CAPITAL      
Perpetual preferred stock and related surplus     0  
Common stock     1,135,000  
Surplus (exclude all surplus related to preferred stock)     11,571,000  
Retained earnings     16,496,000  
Accumulated other comprehensive income     54,000  
Other equity capital components     0  
Total bank equity capital     29,256,000  
Noncontrolling (minority) interests in consolidated subsidiaries     0  
Total equity capital     29,256,000  
Total liabilities and equity capital     386,515,000  

 

 

 

I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Emily Portney
Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Thomas P. Gibbons

     
Samuel C. Scott     Directors
Joseph J. Echevarria