JOHNSON & JOHNSON UNDERWRITING AGREEMENT STANDARD PROVISIONS (DEBT) MARCH 11, 2008
EXHIBIT
1(a)
XXXXXXX
& XXXXXXX
STANDARD
PROVISIONS (DEBT)
MARCH
11, 2008
From time
to time, Xxxxxxx & Xxxxxxx, a New Jersey corporation (the “Company”), may
enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an “Underwriting Agreement”). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The
Company proposes to issue debt securities (the “Securities”) from time to time
pursuant to the provisions of the Indenture dated as of September 15, 1987
between the Company and The Bank of New York Trust Company, N.A. (as successor
to BNY Midwest Trust Company which succeeded Xxxxxx Trust and Savings
Bank), as Trustee. The Securities may have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
provisions, and other terms.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement including a prospectus relating to the Securities and
will file with, or transmit by means reasonably calculated to result in filing
with, the Commission a prospectus supplement specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the “Securities Act”). The term Registration Statement means
the registration statement as amended to the date of the Underwriting
Agreement. The term Basic Prospectus means the prospectus included in
the Registration Statement. The term Prospectus means the Basic
Prospectus together with the prospectus supplement (other than a preliminary
prospectus supplement) specifically relating to the Offered Securities (the
“Prospectus Supplement”), as filed with, or transmitted by means reasonably
calculated to result in filing with, the Commission pursuant to Rule
424. The term preliminary prospectus means a preliminary prospectus
supplement specifically relating to the Offered Securities together with the
Basic Prospectus. As used herein, the terms “Registration Statement”,
“Basic Prospectus”, “Prospectus” and “preliminary prospectus” shall include in
each case the material incorporated by reference therein. At or prior
to the time identified to the Company by the Underwriters as the time when
sales of Offered Securities will be first made as described in the Underwriting
Agreement (each a “Time of Sale”), the Company will prepare certain information
(collectively, the “Time of Sale Information”), which information will be
identified in the Underwriting Agreement for such Offered Securities as
constituting part of the Time of Sale Information.
The term
Underwriters’ Securities means the Offered Securities to be purchased by the
Underwriters pursuant to the Underwriting Agreement. The term
Contract Securities means the Offered Securities, if any, to be purchased
pursuant to the delayed delivery contracts referred to below.
II.
If the
Prospectus provides for sales of Offered Securities pursuant to delayed delivery
contracts, the Company hereby authorizes the Underwriters to solicit offers to
purchase Contract Securities on the terms and subject to the conditions set
forth in the Prospectus pursuant to delayed delivery contracts substantially in
the form of Annex A hereto (“Delayed Delivery Contracts”) with such changes
therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors approved by the
Company. On the Closing Date (as hereinafter defined), the Company
will pay the Manager as compensation, for the accounts of the Underwriters, the
commissions set forth in the Underwriting Agreement in respect of the principal
amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of the Delayed
Delivery Contracts.
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If the
Company executes and delivers Delayed Delivery Contracts with institutional
investors, the Contract Securities shall be deducted from the Offered Securities
to be purchased by the several Underwriters and the aggregate principal amount
of Offered Securities to be purchased by each Underwriter shall be reduced pro
rata in proportion to the principal amount of Offered Securities set forth
opposite each Underwriter’s name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be otherwise and so
advises the Company.
III.
The
Company is advised by the Manager that the Underwriters propose to make a public
offering of the Underwriters’ Securities. The terms of the public
offering of the Underwriters’ Securities are set forth in the Prospectus.
Each
Underwriter severally represents to and agrees with the Company that, in
addition to compliance with any offering restrictions contained elsewhere in
this Agreement, it will not offer, sell or deliver any of the Securities,
directly or indirectly, or distribute the Time of Sale Information or the
Prospectus or any other offering material relating to the Securities, in or from
any jurisdiction, except under circumstances that will result in compliance with
all applicable laws and regulations thereof and which will not impose any
obligations on the Company except as set forth in this
Agreement.
IV.
Payment
for the Underwriters’ Securities shall be made by wire transfer payable to the
order of the Company in immediately available funds at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters’ Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than two full business days prior to the date of the
delivery. Herein, such payment for and delivery of the Underwriters’
Securities are referred to as the Closing and the time and date thereof as the
Closing Date.
V.
The
several obligations of the Underwriters hereunder are subject to the following
conditions:
(a) no stop
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose pursuant to Rule 401(g)(2) or
pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission, and there shall have been no material adverse
change in the consolidated financial condition or earnings of the Company and
its subsidiaries, taken as a whole, from that set forth in the Time of Sale
Information and the Prospectus; and the Manager shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the foregoing effect; such certificate shall also
provide that the representations and warranties of the Company contained herein
are true and correct as of the Closing Date; the officer signing such
certificate may rely upon the best of his knowledge as to proceedings pending or
threatened;
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(b) the
Manager shall have received on the Closing Date an opinion of the General
Counsel or an Assistant General Counsel of the Company, dated the Closing Date,
to the effect set forth in Annex B hereto;
(c) the
Manager shall have received on the Closing Date an opinion of Cravath, Swaine
& Xxxxx, counsel for the Underwriters, dated the Closing Date;
(d) the
Manager shall have received on the date of the Underwriting Agreement and on the
Closing Date, a comfort letter dated such date in substance reasonably
satisfactory to the Manager, from PricewaterhouseCoopers LLP, an independent
registered public accounting firm; and
(e) on or
after the date of the Underwriting Agreement (i) no downgrading shall have
occurred in the rating accorded the Company’s debt securities or preferred stock
by any “nationally recognized statistical rating organization”, as that term is
defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Securities Act of 1933 and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company’s debt securities or
preferred stock.
VI.
In
further consideration of the agreements of the Underwriters contained in this
Agreement, the Company covenants as follows:
(a) to
furnish to the Manager without charge, one signed copy of the Registration
Statement including exhibits thereto and documents incorporated by reference
therein and to each other Underwriter a copy of the Registration Statement
without exhibits but including documents incorporated by reference therein and,
during the period mentioned in clause (c) below, as many copies of the
Prospectus, each Issuer Free Writing Prospectus (if applicable), any documents
incorporated by reference therein and any supplements and amendments thereto as
the Manager may reasonably request; the terms “supplement” and “amendment” or
“amend” as used in this Agreement shall include all documents filed by the
Company with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Securities Exchange Act of 1934, which are deemed to be
incorporated by reference in the Prospectus;
(b) before
amending or supplementing the Registration Statement or the Prospectus with
respect to the Offered Securities, to furnish the Manager a copy of each such
proposed amendment or supplement;
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(c) if,
during such period after the commencement of the public offering of the Offered
Securities as in the opinion of counsel for the Company, after consultation with
counsel for the Underwriters, the Prospectus is required by law to be delivered
(or required to be delivered but for Rule 172 under the Securities Act) in
connection with sales by an Underwriter or dealer, any event shall occur as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then existing,
not misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith at its own expense, to amend or supplement the
Prospectus and to furnish such amendment or supplement to the Underwriters and
the dealers, in such quantities as shall be specified by the Manager, so as to
correct such statement or omission or effect such compliance;
(d) to
qualify the Offered Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Manager shall reasonably request and to
pay all reasonable expenses (including reasonable fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of the Offered Securities for investment under
the laws of such jurisdictions as the Manager may reasonably designate;
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;
(e) to make
generally available to the Company’s security holders as soon as practicable an
earnings statement covering a 12-month period beginning after the date of the
Underwriting Agreement, which shall satisfy the provisions of Section 11(a) of
the Securities Act of 1933 and the applicable rules and regulations
thereunder;
(f) during
the period beginning on the date of the Underwriting Agreement and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Offered Securities without the prior written consent of the manager, provided that this
covenant shall terminate forthwith if the Closing does not take place by the
latest date therefor set forth in the Underwriting Agreement;
(g) to pay
the registration fees for the Offered Securities within the time period required
by Rule 456(b)1(i) under the Securities Act and in any event prior to the
Closing Date;
(h) to file
any Issuer Free Writing Prospectus (including the Term Sheet in the form of
Schedule I to the Underwriting Agreement) to the extent required by Rule 433
under the Securities Act;
(i) if at any
time prior to the Closing Date (i) any event shall occur or condition shall
exist as a result of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances, not misleading or (ii) it is necessary to amend
or supplement the Time of Sale Information to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (b) above, file with the Commission (to the extent required) and
furnish to the Underwriters and to such dealers as the Manager may designate,
such amendments or supplements to the Time of Sale Information as may be
necessary so that the statements in the Time of Sale Information as so amended
or supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with law; and
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(j) to retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities
Act.
VII.
The
Company represents and warrants to each Underwriter that (i) each document filed
or to be filed pursuant to the Securities Exchange Act of 1934 and incorporated
by reference in the Time of Sale Information or the Prospectus complied or will
comply when so filed in all material respects with such Act and the applicable
rules and regulations thereunder, (ii) each part of the registration statement
(including the documents incorporated by reference therein), when such part
became effective under the Securities Act (or, with respect to documents
incorporated by reference therein, when filed pursuant to the Securities
Exchange Act of 1934), did not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) each preliminary prospectus filed
pursuant to Rule 424 under the Securities Act of 1933 complied when so filed in
all material respects with such Act and the applicable rules and regulations
thereunder, (iv) the Registration Statement and the Prospectus comply, and as
amended or supplemented will comply, in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder, (v)
the Registration Statement and the Prospectus do not contain, and as amended or
supplemented will not contain, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, and
with respect to the Prospectus, in light of the circumstances under which they
were made, not misleading, except that these representations and
warranties do not apply to statements or omissions in the Registration
Statement, any preliminary prospectus or the Prospectus based upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use therein and (vi) the Registration Statement
is an “automatic shelf registration statement” as defined under Rule 405 of the
Securities Act that has been filed with the Commission not earlier than three
years prior to the date of the Underwriting Agreement; and no notice of
objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities
Act has been received by the Company.
The
Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Securities
contemplated by the Underwriting Agreement (including in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, no such Underwriter is advising the Company or
any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated
hereby, in each
case as and to the extent it deems appropriate in its sole discretion,
and such Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by such Underwriters named in the
Underwriting Agreement of the Company, the transactions contemplated thereby or
other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
-5-
The Time
of Sale Information, at the Time of Sale did not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for use in
such Time of Sale Information.
The
Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and representatives (other
than a communication referred to in clauses (i), (ii) and (iii) below) an
“Issuer Free Writing Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the preliminary prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule 3 to the Underwriting Agreement as
constituting the Time of Sale Information and (v) any electronic road show or
other written communications, in each case approved in writing in advance by the
Manager (which approval shall not be unreasonably withheld or
delayed). Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been or will be (within the time
period specified in Rule 433) filed in accordance with the Securities Act (to
the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, or filed prior to
the first use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use in any Issuer Free Writing Prospectus.
The
Company is not an ineligible issuer and is a well-known seasoned issuer, in each
case as defined under the Securities Act at the times specified in the
Securities Act in connection with the offering of the Securities.
The
Company agrees to indemnify and hold harmless each Underwriter and each person
who controls such Underwriter within the meaning of either Section 15 of the
Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934,
from and against any and all losses, claims, damages and liabilities caused by
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus (if used within the period set forth in clause (c) of Article VI
hereof) or any preliminary prospectus, any Issuer Free Writing Prospectus or any
Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in each case, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon and in conformity with information
furnished in writing to the Company by any Underwriter expressly for use
therein.
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Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
each person who controls the Company within the meaning of either Section 15 of
the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934
to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information furnished to the Company in
writing by such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus, any Issuer Free Writing Prospectus, any Time of Sale
Information or the Prospectus.
If any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding as they are
incurred. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Underwriters and such control persons of Underwriters, such firm shall be
designated in writing by the Manager. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, such consent
not to be unreasonably withheld, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the
indemnification provided for in this Article VII is unavailable to an
indemnified party under the sixth or seventh paragraphs of this Article VII
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (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 from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above 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
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters in connection with the offering of the Offered Securities shall be
deemed to be in the same proportion as the net proceeds from the offering of
such Offered Securities (before deducting expenses) received by the Company and
the total underwriting discounts and commissions received by the Underwriters
bear to the aggregate public offering price of the Offered
Securities. The relative fault of the Company and the Underwriters
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 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.
-7-
The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Article VII 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 in the immediately preceding
paragraph. The amounts paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten and
distributed to the public by such Underwriter were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been required to
pay by reason of 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 Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Article VII are several, in proportion to the respective
principal amounts of Offered Securities purchased by each of such Underwriters,
and not joint.
The
indemnity and contribution agreements contained in this Article VII and the
representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or on
behalf of any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
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VIII.
Each
Underwriter hereby represents and agrees that
(a) It has
not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to
the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing
prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free
Writing Prospectus listed in the Underwriting Agreement or prepared by the
Company to be used in connection with the Offered Securities (including any
electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing.
(b) Notwithstanding
the foregoing, the Underwriters may use a term sheet substantially in the form
of Schedule I to the Underwriting Agreement without the consent of the
Company.
If any
one or more Underwriters shall fail to purchase and pay for any of the Offered
Securities agreed to be purchased by such Underwriter or Underwriters and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the principal amount of Offered Securities set forth opposite their names in the
Underwriting Agreement bears to the aggregate principal amount of Securities set
forth opposite the name of all the remaining Underwriters) the Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event
that the aggregate principal amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in the Underwriting
Agreement, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Offered Securities,
and if such nondefaulting Underwriters do not purchase all the Offered
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Article VIII, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Manager shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
IX.
This
Agreement shall be subject to termination in the absolute discretion of the
Manager, by notice given to the Company, if prior to the Closing Date (i) there
shall have occurred a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or
(iii) there shall have occurred any material outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the reasonable judgment
of the Manager, impracticable or inadvisable to proceed with the public offering
or the delivery of the Offered Securities on the terms and in the manner
contemplated in the preliminary prospectus relating to the Offered Securities or
the Prospectus (exclusive of any amendment or supplement thereto).
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X.
If this
Agreement shall be terminated by the Underwriters or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement
except pursuant to Article VIII or Article IX hereof, the Company will reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
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Annex
A
(4
pages)
DELAYED
DELIVERY CONTRACT
19
Dear
Sirs:
The
undersigned hereby agrees to purchase from Xxxxxxx & Xxxxxxx, a New Jersey
corporation (the “Company”), and the Company agrees to sell to the
undersigned
$...........................................................
principal
amount of the Company’s [title of issue] (the “Securities”), offered by the
Company’s Prospectus
dated ,
19 and Prospectus Supplement
dated ,
19 , receipt of copies of which are hereby acknowledged,
at a purchase price of % of the principal
amount thereof [plus accrued interest] and on the further terms and conditions
set forth in this contract.
The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The
undersigned will purchase from the Company Securities in the principal amounts
and on the delivery dates set forth below:
|
Delivery
Date
|
Principal
Amount
|
Plus
Accrued
Interest
From:
|
|
......................
|
$......................
|
......................
|
|
......................
|
$......................
|
......................
|
|
......................
|
$......................
|
......................
|
Each such
date on which Securities are to be purchased hereunder is hereinafter referred
to as a “Delivery Date”.
Payment
for the Securities which the undersigned has agreed to purchase on each Delivery
Date shall be made to the Company or its order by [wire transfer or] certified
or official bank check in [immediately available] [New York Clearing House]
funds at the office
of New
York, New York, at [time] on the Delivery Date, upon delivery to the undersigned
of the Securities to be purchased by the undersigned on the Delivery Date, in
such denominations and registered in such names as the undersigned may designate
by written (including telegraphic) communication addressed to the Company not
less than five full business days prior to the Delivery Date.
A-1
The
obligation of the undersigned to take delivery of and make payment for the
Securities on the Delivery Date shall be subject to the conditions that (1) the
purchase of Securities to be made by the undersigned shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have been made to the underwriters (the “Underwriters”) named in the Prospectus
Supplement referred to above of, such part of the Securities as is to be sold to
them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection
therewith.
Failure
to take delivery of and make payment for Securities by any purchaser under any
other Delayed Delivery Contract shall not relieve the undersigned of its
obligations under this contract.
This
contract will inure to the benefit of and be binding upon the parties thereto
and their respective successors, but will not be assignable by either party
hereto without the prior written consent of the other.
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, as of the date first above written, between the Company and
the undersigned when such counterpart is so mailed or delivered.
A-2
This
contract shall be governed by and construed in accordance with the laws of the
State of New York.
| Yours very truly, | |||
| [PURCHASER] | |||
|
|
By
|
||
| Name | |||
| Title | |||
Accepted:
XXXXXXX
& XXXXXXX
|
By
|
|
|
Name:
|
|
|
Title:
|
A-3
PURCHASER––PLEASE
COMPLETE AT TIME OF SIGNING
The name,
telephone number and department of the representative of the Purchaser with whom
details of delivery on the Delivery Date may be discussed are as
follows: (Please print).
|
Name
|
Telephone
No.
(Including Area
Code)
|
Department
|
A-4
ANNEX
B
(3
pages)
Opinion
of Counsel to Company
The
opinion of the Assistant General Counsel of the Company, to be delivered
pursuant to Article V, clause (b) of the document dated March 11, 2008 and
entitled Xxxxxxx & Xxxxxxx Underwriting Agreement Standard Provisions (Debt)
shall, to the extent applicable, be to the effect that:
(i) the
Company is validly existing as a corporation in good standing under the laws of
the State of New Jersey;
(ii) each
significant subsidiary (as defined in Regulation S-X) of the Company (the
“Significant Subsidiaries”) is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation;
(iii) the
Indenture has been duly authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery of the Indenture by the
Trustee, is a valid and binding agreement of the Company, subject to applicable
bankruptcy, insolvency and similar law affecting creditors rights, generally,
and general principles of equity (regardless of whether enforcement is sought in
equity or at law), and has been duly qualified under the Trust Indenture Act of
1939, as amended;
(iv) the
Offered Securities have been duly authorized, and, when executed by the Company
and authenticated by the Trustee in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement or by institutional investors, if any,
pursuant to Delayed Delivery Contracts, will be valid and binding obligations of
the Company and entitled to the benefits of the Indenture, subject to applicable
bankruptcy, insolvency and similar law affecting creditors rights, generally,
and general principles of equity (regardless of whether enforcement is sought in
equity or at law);
(v) the
Underwriting Agreement has been duly authorized, executed and delivered by the
Company;
B-1
(vi) the
Delayed Delivery Contracts have been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery by the
counterparty thereto, are valid and binding agreements of the Company in
accordance with their respective terms;
(vii) the
execution, delivery and performance of the Underwriting Agreement by the Company
will not contravene any provision of applicable law known to such counsel or the
certificate of incorporation or by-laws of the Company or any material agreement
or other instrument binding upon the Company known to such counsel, or any
judgment, order or decree of any governmental body or agency or court having
jurisdiction over the Company or any of its Significant Subsidiaries known to
such counsel and except for such laws, agreements, instruments, judgments,
orders and decrees the contravention of which would not have a material adverse
effect on the Company and its subsidiaries taken as a whole and as would not
materially and adversely affect the offer and sale of securities pursuant to the
Underwriting Agreement and no consent, approval or authorization of any
governmental body or agency is required for the performance of the Underwriting
Agreement by the Company, except as such have been made or obtained, as may be
required under the securities or blue sky laws of the various jurisdictions in
connection with the offer and sale of the Offered Securities, and except for
such consents, authorizations and approvals which, if not made or obtained would
not have a material adverse effect on the Company and its subsidiaries taken as
a whole and as would not materially and adversely affect the offer and sale of
securities pursuant to the Underwriting Agreement;
(viii) such
counsel does not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its Significant Subsidiaries is a
party or to which any of the properties of the Company or any of its Significant
Subsidiaries are subject which are likely
(to the extent not covered by insurance) to have a material adverse effect on
the consolidated financial condition or earnings of the Company and its
subsidiaries taken as a whole;
(ix) the
statements as to matters of law contained in the Company’s Annual Report on Form
10-K for the fiscal year ended December [ ], 20[ ], incorporated by
reference in the Prospectus, under the captions “Business-Regulation” and “Legal
Proceedings” insofar as they purport to constitute summaries of the laws and
regulations referred to therein, constitute in all material respects accurate
summaries thereof; and
(x) the
statements set forth in the Prospectus under the headings “Description of Debt
Securities” and “Description of Warrants” insofar as such statements purport to
constitute summaries of certain provisions of the Debt Securities, the
Indenture, the Warrants and the Warrant Agreement, constitute in all material
respects accurate summaries thereof.
B-2
In addition, such counsel
shall state that:
(1) the
documents incorporated by reference in the Time of Sale Information and the
Prospectus (other than the financial statements and schedules and the accuracy
of other numbers contained or incorporated by reference therein, as to which
counsel need express no opinion), when they were filed with the Securities and
Exchange Commission, complied as to form in all material respects with the
Securities and Exchange Act of 1934 and the applicable rules and regulations
thereunder;
(2) the
Registration Statement and the Prospectus as amended or supplemented (in each
case other than the financial statements and schedules and the accuracy of other
numbers contained or incorporated by reference therein, as to which such counsel
need express no opinion), comply as to form in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder;
and
(3) no facts
have come to such counsel's attention that caused such counsel to believe (A)
that any part of the Registration Statement relating to the Securities
(including the documents incorporated by reference therein and any information
deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration
Statement), when such part became effective under the Securities Act of 1933,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) that the Time of Sale Information, at the Time
of Sale contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (C) that the
Prospectus as of its date or the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that, in each
case, such counsel need express no view with respect to the financial
statements, notes thereto and schedules and the accuracy of other numbers
contained or incorporated by reference therein or the Trustee's Statement of
Eligibility on Form T-1).
In
rendering such opinions, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, upon certificates of officers of the Company
and its subsidiaries and certificates of public officials.
With
respect to subparagraphs (1), (2) and (3),
such counsel may state that such statements are based upon his
participation, or the participation of certain members of his staff, in the
preparation of the Registration Statement, Time of Sale Information and
Prospectus and any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents thereof, but,
except as set forth in paragraph (ix) hereof, is without independent check or
verification except as otherwise specified therein.
B-3
