JOHNSON & JOHNSON UNDERWRITING AGREEMENT STANDARD PROVISIONS (DEBT) FEBRUARY 28, 2011
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 Mellon
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 Secuities
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.
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
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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;
(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.
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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 copy of
the Registration Statement (as originally filed) and each
amendment thereto including in each case exhibits thereto and
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;
(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, promptly 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
reasonably requested 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 promptly 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 promptly
prepare and,
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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
(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.
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,
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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.
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
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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.
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.
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
6
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).
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
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:
|
Principal |
Plus Accrued |
|||||||
|
Delivery Date
|
Amount | 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.
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-1
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-2
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).
|
Telephone No. |
||||
|
Name
|
(Including Area Code)
|
Department
|
||
A-3
ANNEX B
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 February 28, 2011 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;
(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;
B-1
(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.
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-2
