XXXX ATLANTIC -- NEW JERSEY, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
-------, ----
To the Representative
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Xxxx Atlantic -- New Jersey, Inc., a New Jersey corporation (the
"Company"), may issue and sell from time to time series of its debt securities
registered under the registration statement referred to in Paragraph 1(a) hereof
(collectively, the "Securities" and each individually, a "Security"). The
Company proposes to sell to the underwriters named in Schedule II (the
"Underwriters") to this Underwriting Agreement (this "Agreement"), for whom you
are acting as representative (the "Representative"), a series of Securities, of
the designation, with the terms and in the aggregate principal amount specified
in Schedule I hereto (collectively, the "Underwritten Securities" and each
individually, an "Underwritten Security"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representative" shall each be deemed to refer
to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) Registration statements (Nos. 33-49851 and _____), including a
prospectus, with respect to the Securities have been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and have become effective. As used in this Agreement, (i)
"Registration Statement" means collectively registration statements Nos.
33-49851 and _________, each as amended and supplemented to the date
hereof; (ii) "Preliminary Prospectus" means each prospectus (including all
documents incorporated therein by reference) included in registration
statement No. [__], or amendments or supplements thereof, before it became
effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; and (iii)
"Prospectus" means each prospectus included in the Registration Statement,
including any preliminary or final prospectus amendment or supplement
(including in each case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order suspending the
effectiveness of the Registration Statement or preventing or suspending
the use of any Prospectus, and no proceedings for such purposes have been
instituted or are pending or, to the knowledge of
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the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
(b) The Registration Statement and each Prospectus contain, and (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 7(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act" and, together with the
Act and the Exchange Act, the "Acts"), and the rules and regulations of
the Commission under such Acts; the indenture, including any amendments
and supplements thereto, pursuant to which the Underwritten Securities
will be issued (the "Indenture") will conform with the requirements of the
Trust Indenture Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and each Prospectus do not, and
(in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will not, at any time during the period specified in Paragraph 7(c)
hereof, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the Company makes no
representation or warranty as to information contained in or omitted from
the Registration Statement or any Prospectus in reliance and based upon
information furnished to the Company through the Representative by or on
behalf of any Underwriter or as to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture.
(c) The Company is not in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument, except
for such defaults that would not result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in
the ordinary course of business (each, a "Material Adverse Effect"); and
the execution, delivery and performance of this Agreement, the Indenture,
the Underwritten Securities, and any Delayed Delivery Contracts (as
defined in Paragraph 3 hereof) and the consummation of the transactions
contemplated herein, and in the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the
sale thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action and
do not and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
material agreement, indenture or instrument to which the Company is a
party or by which it is bound or to which any of its properties or assets
are subject, nor will such action result in a material violation of the
charter or by-laws of the Company or any statute, order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company or its properties; and except as required by the Act, the
Trust Indenture
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Act, the Exchange Act and applicable state securities laws and except as
set forth in Paragraph 1(m) hereof, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement,
the Delayed Delivery Contracts and the Indenture or the consummation of
the transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statement and each Prospectus, there has been no Material Adverse Effect
from the dates as of which information is given in the Registration
Statement and each Prospectus.
(e) PricewaterhouseCoopers LLP, whose report appears in the
Company's most recent Annual Report on Form 10-K which is incorporated by
reference in each Prospectus, are independent accountants as required by
the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be validly
issued and outstanding, and will constitute legally binding obligations of
the Company entitled to the benefits of the Indenture, and (iii) each
Underwritten Security and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New Jersey, is duly
qualified to do business and in good standing as a foreign corporation in
each jurisdiction in which its ownership of properties or the conduct of
its business requires such qualification, except where the failure to so
qualify would not have a Material Adverse Effect, and has power and
authority necessary to own or hold its properties, to conduct the business
in which it is engaged and to enter into and perform its obligations under
this Agreement.
(i) There is no material action, suit or proceeding before any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in any Prospectus (other than
as disclosed therein), or which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
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(j) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus present, or (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will present
at all times during the period specified in Paragraph 7(c) hereof, fairly
the financial condition and results of operations of the Company, at the
dates and for the periods indicated, and have been, and (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will be at
all times during the period specified in Paragraph 7(c) hereof, prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. Any pro forma financial statements and any related notes thereto
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the period
specified in Paragraph 7(c) hereof, prepared by the Company in conformity
with the applicable requirements of the Act, the Rules and Regulations and
the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, timely filed as required
thereby.
(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Act or by the
Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in any Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed a petition or petitions with the New
Jersey Board of Public Utilities (the "BPU") with respect to the issue and
sale of securities, including the
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Underwritten Securities. The BPU has entered its order authorizing the
issuance and sale thereof, subject to the limitations on the terms and
conditions of such issuance and such sale set forth in such order, and
such order has become final and non-appealable.
(n) The Company has good and valid title to all or substantially all
of its properties, except as otherwise indicated in the Prospectus.
(o) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
2. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
and on the other terms set forth in Schedule I hereto, the principal amount of
the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
(each, a"Delayed Delivery Contract"). The Company shall have the right, in its
sole discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate Delivery
Underwritten Securities to be purchased by each Underwriter, there shall be
deducted from the principal amount of Underwritten Securities to be purchased by
such Underwriter as set forth in Schedule II hereto that portion of the
aggregate principal amount of Delayed Delivery Underwritten Securities that the
principal amount of Underwritten Securities to be purchased by
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such Underwriter as set forth in Schedule II hereto bears to the aggregate
principal amount of Underwritten Securities set forth in Schedule II to be
purchased by all Underwriters (in each case, as adjusted by the Representative
to avoid fractions of the minimum principal amount in which the Underwritten
Securities may be issued), except to the extent that the Representative
determines, in its discretion, that such deduction shall be otherwise than in
such proportion and so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters, if any, shall be
obligated to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximum percentages
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representative who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Immediate Delivery Underwritten Securities. If
the remaining Underwriters or other underwriters satisfactory to the
Representative do not elect to purchase the Immediate Delivery Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, any Prospectus or in any other document
or arrangement.
6. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such address, date and time as may be specified in
Schedule I hereto. This date and time
7
are sometimes referred to collectively as the "Delivery Date". On the Delivery
Date the Company shall deliver the Immediate Delivery Underwritten Securities to
The Depository Trust Company, on behalf of the Representative, for the account
of each Underwriter against payment to the Company by wire transfer of
immediately available funds to a bank account designated by the Company. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and shall be made
available for inspection by the Representative in New York, New York not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for the
Underwriters a conformed copy of the Registration Statement as originally
filed and each amendment or supplement thereto filed prior to the date
hereof or relating to or covering the Underwritten Securities and a copy
of each Prospectus filed with the Commission, including all documents
incorporated therein by reference and all consents and exhibits filed
therewith;
(b) To deliver promptly to the Representative such reasonable number
of the following documents as the Representative may request: (i)
conformed copies of the Registration Statement (excluding exhibits other
than the computation of the ratio of earnings to fixed charges, the
Indenture and this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in any Prospectus;
(c) During such period following the date hereof as, in the opinion
of counsel for the Underwriters, any Prospectus is required by law to be
delivered, to comply with the Act, the Exchange Act, the Trust Indenture
Act and the rules and regulations under each thereof, so as to permit the
completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and in each Prospectus. If at any time when
a prospectus is required by the Act to be delivered in connection with
sales of the Underwritten Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
such Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with
the requirements of the Act or the Rules and Regulations, the Company
shall promptly prepare and file with the Commission, subject to Paragraph
(d) below, such amendment or supplement as may be necessary to correct
such statement or omission or
8
to make the Registration Statement or any such Prospectus comply with such
requirements, and the Company shall furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to the Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto or
(iii) any document incorporated by reference in any of the foregoing or
any amendment or supplement to such incorporated document, to furnish a
copy thereof to the Representative and to counsel for the Underwriters and
not to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Underwritten Securities becomes effective or any supplement
to any Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement (insofar as the
amendment or supplement relates to or covers the Underwritten Securities),
to any Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or any
document incorporated therein by reference or the initiation or threat of
any stop order proceeding or of any challenge to the accuracy or adequacy
of any document incorporated by reference in any Prospectus, (iv) of
receipt by the Company of any notification with respect to the suspension
of the qualification of the Underwritten Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the occurrence of any event which makes untrue any
statement of a material fact made in the Registration Statement (insofar
as the Registration Statement relates to or covers the Underwritten
Securities) or any Prospectus or which requires the making of a change in
the Registration Statement or any Prospectus in order to make any material
statement therein not misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the Act,
covering a period of at least twelve months beginning after the latest of
(i) the most recent effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement that became effective prior to the date of this
Agreement and (iii) the date of the
9
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of this Agreement;
(h) So long as any of the Underwritten Securities are outstanding,
to furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the Representative
may reasonably request and to maintain such qualifications in effect for
as long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Securities on the securities exchange, if any, set forth on
Schedule I (the "Stock Exchange") on or prior to the Delivery Date and to
cause such listing to be continued so long as any amount of the Securities
remains outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided that
if the Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Securities on such other securities exchange
or exchanges as the Company may, with the approval of the Representative,
determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits),
any Preliminary Prospectus, each Prospectus and any documents incorporated
by reference in any of the foregoing documents; the costs of printing this
Agreement and the Delayed Delivery Contracts, if any; the fees and
disbursements of the Company's counsel, accountants and other advisors;
the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the
Underwritten Securities, to the extent the
10
Trustee or its counsel, as the case may be, requires reimbursement
thereof; the costs of any filings with the National Association of
Securities Dealers, Inc.; fees paid to rating agencies in connection with
the rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in this Paragraph
and of preparing and printing a Blue Sky Memorandum (including fees of
counsel to the Underwriters); the cost of listing the Underwritten
Securities on the Stock Exchange; and all other costs and expenses
incident to the performance of the Company's obligations under this
Agreement; provided that, except as provided in this Paragraph and in
Paragraph 11 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel, any transfer
taxes on the Underwritten Securities which they may sell and the expenses
of advertising any offering of the Underwritten Securities made by the
Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to previously
filed documents, required to be filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and continuing to
the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company with maturities longer than one year, other than the
Underwritten Securities to the Underwriters.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Paragraph
8(d) below) any such settlement is effected with the written consent of
the
11
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or Prospectus
(or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Paragraph 8, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or such Preliminary Prospectus or
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Paragraph 8(a) above, counsel to the indemnified parties shall be
selected by the Representative, and, in the case of parties indemnified pursuant
to Paragraph 8(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses
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of more than one counsel (in addition to any local counsel) separate from their
own 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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Paragraph 8 (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 8(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged
13
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Paragraph 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Paragraph 8(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Paragraph 8(e) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Paragraph 8(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds 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.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Paragraph 8(e), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Paragraph 8(e) are several
in proportion to the principal amount of Underwritten Securities set forth
opposite their respective names in Schedule II hereto and not joint.
(f) The indemnity agreements contained in this Paragraph and the
representations, warranties and agreements of the Company in Paragraph 1 and
Paragraph 7 hereof shall survive the delivery of the Underwritten Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
9. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the delivery of and payment for the
Immediate Delivery Underwritten
14
Securities, (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, the effect
of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) if trading in any securities
of the Company or Xxxx Atlantic Corporation has been suspended or materially
limited by the Commission, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party hereto to any other party
hereto except as provided in Paragraph 11 hereof, and provided further that
Paragraphs 1 and 8 shall survive such termination and remain in full force and
effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have been
made to the accuracy or adequacy of any document incorporated by reference
in any Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statement or any Prospectus or
otherwise shall have been complied with; and after the date hereof the
Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any
document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or any Prospectus contains an
15
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Securities, the Indenture and the form of the Registration Statement, each
Prospectus (other than financial statements and other financial data) and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that such
counsel may reasonably request to enable it to pass upon such matters.
(d) The General Counsel of the Company shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date, as General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of New
Jersey;
(ii) The Company is duly qualified to do business and is in
good standing as a foreign corporation in all jurisdictions in which
its ownership of property or the conduct of its business requires
such qualification (except where the failure to so qualify would not
have a Material Adverse Effect) and has all power and authority
necessary to own its properties and conduct the business in which it
is engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming due authentication, execution and
delivery by the Trustee, constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have been
duly authorized, executed and issued by the Company and, assuming
due authentication thereof by the Trustee and upon payment and
delivery in accordance with this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Underwritten Securities, if any, have
been duly authorized and, when duly executed and issued by the
Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery
16
by the respective purchasers thereof in accordance with the terms of
the related Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(vi) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the purchasers thereunder,
are valid and legally binding obligations of the parties thereto;
(vii) The statements made in each Prospectus under the caption
"Description of Securities" (or a comparable caption), insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects;
(viii) The Registration Statement is effective under the Act
and, to the knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(ix) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been issued
and, to the knowledge of such counsel, no challenge has been made by
the Commission to the accuracy or adequacy of any such document;
(x) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the documents
incorporated by reference therein) which is not disclosed and
correctly summarized therein;
(xi) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or by-laws or in default
under any material agreement, indenture or instrument;
(xii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xiii) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance
by the Company with the provisions of the Underwritten Securities
and the Indenture will not conflict with, or
17
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company pursuant to the
terms of, or constitute a default under, any agreement, indenture or
instrument known to such counsel, or result in a violation of the
corporate charter or by-laws of the Company or, to the best of such
counsel's knowledge, any statute, order, rule or regulation of any
court or governmental agency having jurisdiction over the Company or
its properties;
(xiv) All legally required proceedings in connection with the
authorization, issue and validity of the Underwritten Securities and
the sale of the Underwritten Securities by the Company in accordance
with this Agreement have been taken, and all legally required
orders, consents or other authorizations or approvals of the BPU and
of any other public boards or bodies have been obtained; and
(xv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the 1940 Act.
Such counsel may state that the opinions set forth in paragraphs
(iii), (iv), (v) and (vi) above are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
Such opinion shall also state that the Registration Statement and
each Prospectus as of their respective effective and issue dates complied
as to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the Commission
under said Acts (except that no opinion need be expressed as to the
financial statements and other financial data contained herein) and each
document incorporated by reference in each Prospectus as filed under the
Exchange Act complied when so filed as to form in all material respects
with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (except that no opinion need be
expressed as to the financial statements and other financial data
contained therein).
Such opinion shall also contain a statement that such counsel has no
reason to believe that (i) the Registration Statement, on the date it
became effective (or, with respect to the Registration Statement, if the
Company has filed an Annual Report on Form 10-K since its effective date,
the date of the Company's most recent Annual Report on Form 10-K),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or (ii) the Prospectus, as of its
date and as of the Delivery Date, contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(e) At the Delivery Date, there shall not have been, since the date
hereof or since the
18
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the Chairman of the
Board, the President, the Chief Financial Officer or a Vice President of
the Company, and the Treasurer or an Assistant Treasurer of the Company,
dated the Delivery Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Paragraph 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Delivery Date, (iii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Delivery Date and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or are contemplated by the Commission.
(f) If Underwritten Securities in bearer form are being delivered by
the Company on the Delivery Date in a jurisdiction other than the United
States, the Company shall have furnished to the Representative such legal
opinion or opinions as the Representative may reasonably request addressed
to the Underwriters and dated the Delivery Date, with respect to matters
relating to the offering, sale and delivery of the Underwritten Securities
in such jurisdiction.
(g) The Company shall have furnished to the Representative (i) a
letter of PricewaterhouseCoopers LLP, addressed to the Underwriters and
dated the date hereof of the type described in the American Institute of
Certified Public Accountants' Statement on Auditing Standards No. 72 and
covering such specified financial statement items as counsel for the
Underwriters may reasonably have requested and (ii) a letter of
PricewaterhouseCoopers LLP, addressed to the Underwriters and dated the
Delivery Date, stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter referred to in
subclause (i) above, confirming in all material respects the conclusions
and findings set forth in such prior letter.
(h) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the
Representative its opinion addressed to the Underwriters and dated the
Delivery Date, as counsel for the Underwriters, covering the matters set
forth in Paragraph 10(d), except clauses (ii), (viii), (ix), (x), (xi) and
(xiii) thereof.
(i) The BPU shall have granted authorization, and on the Delivery
Date such authorization shall be in full force and effect, permitting the
issuance and sale of the Underwritten Securities upon the terms and
conditions hereunder set forth or contemplated and containing no provision
unacceptable to the Underwriters, and, all conditions precedent to the
issuance and sale of the Underwritten Securities contained therein shall
have been fulfilled.
19
(j) The Underwritten Securities shall have been accepted for listing
on the Stock Exchange (if any), subject to official notice of issuance.
(k) At the Delivery Date, the Underwritten Securities shall be rated
at least "Aa2" by Moody's Investor's Service Inc., "AA" by Standard &
Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and "AAA" by Duff &
Xxxxxx Credit Rating Co., and the Company shall have delivered to the
Representative a letter dated the Delivery Date from each such rating
agency or other evidence satisfactory to the Representative, confirming
that the Underwritten Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Securities or any of the Company's other debt
securities by any such rating agency, and, after the date hereof, no such
rating agency shall have publicly announced that it has withdrawn or has
put under surveillance or review with negative implications, including
putting on what is commonly termed a "watch list," its rating of the
Underwritten Securities or any of the Company's other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Immediate Delivery Underwritten Securities for any reason permitted under
this Agreement (other than pursuant to Paragraph 5 hereof), the Company shall
reimburse the Underwriters for reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Immediate Delivery
Underwritten Securities and the solicitation of any purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set forth in Schedule I
hereto, and any notice by the Underwriters to the Company shall be sufficient if
given in writing or by telegraph addressed to the Company at 000 Xxxxx Xxxxxx,
Xxxxxx, XX 00000, Attention of the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of
20
Section 15 of the Act and (b) the indemnity agreement of the Underwriters
contained in Paragraph 8 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Paragraph, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. is open for trading.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
XXXX ATLANTIC -- NEW JERSEY, INC.,
a New Jersey corporation,
By:
-------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
------------------------------,
a ,
By: ---------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement, dated __________, ________.
Registration Statement Nos. 33-49851 and ___________
Representative and Address:
Underwritten Securities
Designation:
Principal amount: $
Indenture: Indenture, dated as of December 22, 1993,
between Xxxx Atlantic -- New Jersey, Inc.
and First Union National Bank, as Trustee.
Date of Maturity:
Interest Rate:
Purchase Price: % of the principal amount thereof.
Redemption Provisions:
Authorized Denominations: $1,000 and integral multiples thereof.
Stock Exchange Listing:
Delivery Date, Time and Location: ________, ______ at 10:00 a.m. at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
SCHEDULE II
Name of Underwriter Principal
Amount of
Underwritten
Securities
$
$
Total
$
=
EXHIBIT A
$
XXXX ATLANTIC -- NEW JERSEY, INC.
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
XXXX ATLANTIC -- NEW JERSEY, INC.
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxx Atlantic -- New
Jersey, Inc., a New Jersey corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned,
$[ ]
principal amount of the Company's above-captioned securities (the "Securities"),
offered by the Company's prospectus dated May [ ], 1999, as supplemented by the
prospectus supplement dated _______, ______ (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof plus accrued interest from to the Delivery Date (as
defined in the next paragraph) and on the further terms and conditions set forth
in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on ___________, _____, herein called the "Delivery
Date".
At 10:00 A.M., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
at the office of . Payment will be certified or official bank check payable in
next-day funds settled through the New York Clearing House to or upon the order
of the Company. The Securities will be delivered in such authorized forms and
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date, or, if the undersigned fails to
make a timely designation in the foregoing manner, in the form of one definitive
fully registered certificate representing the Securities in the above principal
amount, registered in the name of the undersigned.
This Contract will terminate and be of no further force and effect
after ________, _____, unless (i) on or before such date it shall have been
executed and delivered by both parties hereto or (ii) the Company shall have
sold to the Underwriters named in the Prospectus the Immediate
25
Delivery Underwritten Securities (as defined in the Underwriting Agreement
referred to in the Prospectus) and the Company shall have mailed or delivered to
the undersigned at its address set forth below a notice to that effect, stating
the date of the occurrence thereof, accompanied by copies of the opinion of
counsel for the Company delivered to such Underwriters pursuant to Paragraph
10(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By:
------------------------------------
---------------------------------------
Title
---------------------------------------
Address
Accepted as of
XXXX ATLANTIC -- NEW JERSEY, INC.
By:
------------------------------
Title
