Exhibit 1.1
J.P. MORGAN CHASE & CO.
$
[Debt Securities]
UNDERWRITING AGREEMENT
[Date]
[UNDERWRITERS]
c/o [Address]
Ladies and Gentlemen:
1. Introductory. J.P. Morgan Chase & Co., a Delaware
corporation (the "Company"), proposes to issue and sell $[ ] principal amount
of its [ ] Due [ ] (the "Securities"). The Securities will be issued under
an indenture dated as of [ ], (the "Indenture"), between the Company and
[ ], as Trustee. The Company hereby agrees with the several Underwriters
named in Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 (Nos. [ ] and
[ ]) relating to the Securities has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
Registration Statement (including all documents incorporated therein by
reference), is hereinafter referred to as the "Registration Statement". As used
herein, "Basic Prospectus" means the prospectus (including all documents
incorporated therein by reference) relating to the Registration Statement, in
the form in which such prospectus has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date hereof (but without
regard to any prospectus supplements relating specifically to securities other
than the Securities); and "Prospectus" means the Basic Prospectus together with
the prospectus supplement (including all documents incorporated therein by
reference) specifically relating to the Securities, as such prospectus
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supplement is first filed with the Commission on or after the date
hereof pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Act"); provided, however, that if a previously unfiled
form of prospectus with an issue date later than the issue date of the
Basic Prospectus is to be filed with the Commission together with the
prospectus supplement relating to the Securities, then "Prospectus"
means such new form of prospectus (including all documents incorporated
therein by reference) together with such prospectus supplement
(including all documents incorporated therein by reference) as first
filed with the Commission on or after the date hereof pursuant to Rule
424(b) under the Act.
(b) The Registration Statement (as of each effective date)
conformed, the Registration Statement (as of the date hereof) conforms,
and the Prospectus (when filed with the Commission) and any amendments
and supplements to the Registration Statement or the Prospectus will
conform, in all respects to the applicable requirements of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Rules
and Regulations (as hereinafter defined); the Registration Statement
(as of each effective date) did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and
the Registration Statement (as of the date hereof) does not, and the
Registration Statement, the Prospectus and any amendments or
supplements to the Registration Statement or the Prospectus (at any
time when a prospectus relating to the Securities is required to be
delivered under the Act) will not, include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements or omissions in
any such documents based upon written information furnished to the
Company by the Underwriters specifically for use therein.
(c) Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing under the
Exchange Act on or after the date hereof of any document deemed to be
incorporated therein by reference.
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The "effective date" of the Registration Statement means (i) the date
on which the Registration Statement initially became effective and (ii)
the later of (A) the date on which the most recent post-effective
amendment or amendments thereto became or become effective and (B) the
date of filing of the Company's most recent Annual Report on Form 10-K.
"Rules and Regulations" means the respective rules and regulations of
the Commission under the Act, the Exchange Act and the Trust Indenture
Act.
3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of [ ]% of the principal amount thereof,
plus accrued interest, if any, from [ ] to the Closing Date (as defined
below), the respective principal amounts of Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Company will deliver the Securities to [Lead
Representative] for the respective accounts of the Underwriters, at the office
of [The Chase Manhattan Bank, as Authenticating Agent, at 450 West 33rd Street,
New York, New York], against payment of the purchase price by certified or
official bank check or checks or wire transfer in federal funds drawn to the
order of the Company, at the office of [the Company, 270 Park Avenue, New York,
New York, at 10:00 a.m.], New York time, on [ ], or at such other time not
later than seven full business days thereafter as you and the Company determine,
such time being herein referred to as the "Closing Date". [The Securities so to
be delivered will be issued in the form of one or more fully registered global
securities, which will be deposited with, or in accordance with the instructions
of, The Depository Trust Company, New York, New York (the "Depositary") and
registered in the name of the Depositary's nominee.]
4. Offering by the Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
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5. Covenants of the Company. The Company covenants and agrees
with the several Underwriters that:
(a) The Company will cause the Prospectus (or, if permitted by
Rule 424(c) under the Act, the prospectus supplement relating to the
Securities that forms a part thereof), properly completed, to be filed
with the Commission pursuant to Rule 424(b)(2) (or, if applicable and
consented to by you, Rule 424(b)(5)) within the time period prescribed
and will provide evidence satisfactory to you of such timely filing.
The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus (other than a
supplement relating solely to an offering of securities other than the
Securities); the Company will also advise you promptly of the filing of
any such amendment or supplement, and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement, and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting if
issued.
(b) If at any time when a prospectus relating to the
Securities is required to be delivered under the Act any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact, or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend or supplement the
Registration Statement or the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment
or supplement that will correct such statement or omission or an
amendment that will effect such compliance. The expense of complying
with the requirements of this Section 5(b) shall be borne (a) during
the period of nine months after the date of this Agreement, by the
Company, and (b) after the expiration of such nine-month period, by
you, if you request copies of the Prospectus or of an amendment or
amendments of or a supplement or supplements to the Prospectus.
(c) As soon as practicable but in no event later than 16
months after the date of this Agreement, the Company will make
generally available to its securityholders an earnings statement or
statements of the Company and its subsidiaries that will satisfy the
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provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to you copies of the Registration
Statement (including all exhibits), each related preliminary
prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available in such quantities as you
request (and will make available to your counsel a manually executed
copy of the Registration Statement and manually executed copies of all
amendments thereto to the extent not previously furnished to such
counsel, in each case with all exhibits).
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you designate and
will continue such qualifications in effect so long as required for the
distribution; provided, however, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any such jurisdiction.
(f) During the period of two years hereafter, and if not
publicly available through the Commission's website, the Company will
furnish to you from time to time, such information concerning the
Company as you may reasonably request.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, and will
reimburse you for any expenses (including fees and disbursements of
counsel) incurred by you in connection with qualification of the
Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as you designate and
the printing of memoranda relating thereto and for any fees charged by
investment rating agencies for the rating of the Securities.
(h) From the date of this Agreement through the close of
business on the Closing Date, the Company will not, without your prior
consent, offer or sell (other than upon exercise of warrants therefor),
[(i) any of its unsubordinated debt securities having a maturity of
seven years or more or (ii) any of its subordinated debt securities
(regardless of maturity) other than the Securities.]
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6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or you, shall be contemplated by the
Commission.
(b) Since the respective dates as of which information is
given in the Prospectus, there shall not have been any change in the
consolidated long-term debt of the Company and its subsidiaries (other
than changes resulting from the accretion of premium or amortization of
debt discount on long-term debt and changes resulting from the
issuance of debt securities by the Company that have occurred, and have
been disclosed by the Company to the Underwriters, prior to the date
hereof), any change in the capital stock of the Company (except for
increases in outstanding capital stock that are not material), or any
change or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders, equity or results of operations of the Company and its
subsidiaries, viewed as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case,
is, in the judgment of a majority in interest of the Underwriters after
discussion with the Company, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus.
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(c) You shall have received an opinion of Simpson Thacher &
Bartlett, counsel for the Company, dated the Closing Date, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, and The Chase Manhattan Bank
has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the
State of New York, in each case with full corporate power and
authority to conduct its business as described in the
Prospectus (including the documents incorporated therein by
reference).
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing.
(iii) The Notes have been duly authorized, executed
and issued by the Company and, assuming due authentication by
the Trustee or The Chase Manhattan Bank, as Authenticating
Agent under the Indenture and on behalf of the Trustee, and
upon payment and delivery in accordance with this Agreement,
will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing.
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(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
(v) The execution, delivery and performance by the
Company of this Agreement, the issue and sale of Notes and the
compliance by the Company with all of the provisions of the
Notes will not result in any violation of the provisions of
the Company's Certificate of Incorporation, as amended, or
By-Laws or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject,
nor will such actions by the Company result in any violation
of any Federal or New York statute or the Delaware General
Corporation Law or any order, rule or regulation known to such
counsel issued pursuant to any Federal or New York statute or
the Delaware General Corporation Law by any court or
governmental agency or body having jurisdiction over the
Company or any of its properties.
(vi) No consent, approval, authorization, order,
registration or qualification of or with any New York State or
Federal court or governmental agency or body or any Delaware
court or governmental agency or body acting pursuant to the
Delaware General Corporation Law is required for the issue and
sale of the Notes, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Notes by the
Underwriters.
(vii) The statements made in the Prospectus under the
captions "_____________________________________" and
"_____________________________", insofar as they purport to
constitute summaries of the Notes and the Indenture,
constitute accurate summaries of the terms of the Notes and
the Indenture in all material respects.
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(viii) The Registration Statement has become
effective under the Act and the Prospectus was filed on
___________, _____ with the Commission pursuant to Rule
424(b)(2) under the Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission.
(ix) To the knowledge of such counsel, there are no
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement or incorporated by
reference therein which are not described and filed or
incorporated by reference as required.
(x) Such counsel has no reason to believe that the
Registration Statement (or any post-effective amendment
thereto), at the time of its effective date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (as amended or supplemented, if so amended or
supplemented) includes an untrue statement of a material fact
or omits 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 as of the date
hereof or as of the Closing Date, and such counsel does not
know of any contracts or other documents required to be
summarized or disclosed or filed as exhibits to the
Registration Statement or Prospectus that have not been so
summarized, disclosed or filed.
(d) You shall have received from Cravath, Swaine & Moore,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus,
and other related matters as you may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) You shall have received a certificate of the
Chairman, the President, any Vice-Chairman, any Senior
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Executive Vice President, the Chief Financial Officer, any Executive
Vice President, the Treasurer or any other Senior Vice President or
Managing Director, dated the Closing Date, in which such officer, to
the best of his or her knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the best of his or her knowledge, are contemplated by the Commission,
and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change
in the financial position or results of operations of the Company and
its subsidiaries except as set forth or contemplated in the Prospectus
or as described in such certificate.
(f) You shall have received a letter of PricewaterhouseCoopers
LLP, dated the Closing Date, confirming that they are independent
public accountants within the meaning of the Act and the Rules and
Regulations, and stating in effect that (i) in their opinion the
financial statements and schedules examined by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the Rules and
Regulations, (ii) on the basis of a reading of the latest available
interim financial statements of the Company, inquiries of officials of
the Company responsible for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that (A) the unaudited financial statements in the
Prospectus, if any, do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Rules
and Regulations, or are not stated on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus, (B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more than
five days prior to such Closing Date, there was any change in the
common stock, preferred stock or long-term debt of the Company and its
consolidated subsidiaries or any decrease (other than as occasioned by
the declaration of regular dividends) in consolidated stockholders'
equity of the Company and its consolidated subsidiaries
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as compared with amounts shown on the latest audited balance sheet
included in the Prospectus or (C) for the period from the closing date
of the latest audited income statement included in the Prospectus to
the closing date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in the consolidated net
interest income, in net interest income after provision for loan losses
or in net income or net income per common share of the Company and its
subsidiaries on a consolidated basis, except in all instances for
changes or decreases set forth in such letter or which the Prospectus
discloses have occurred or may occur, and (iii) they have compared
certain agreed dollar amounts (or percentages derived from such dollar
amounts) and other financial information (and ratios) included in the
Prospectus (to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and other
procedures specified in such letter, and have found such dollar
amounts, percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter. For
purposes of this subsection, "Prospectus" shall mean the prospectus as
amended and supplemented on the date of such letter. All financial
statements included in material incorporated by reference into the
Prospectus shall be deemed included in the Prospectus for purposes of
this subsection.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification. (a) The Company will indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration
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Statement, the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such documents in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter specifically for use therein; and provided, further, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) to the extent that any
such loss, claim, damage or liability of such Underwriter or such controlling
person results from the fact that a copy of the Prospectus was not sent or given
to any person at or prior to the written confirmation of the sale of such
securities to such person. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and
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in conformity with written information furnished to the Company by such
Underwriter specifically for use therein; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability that such Underwriter may otherwise have. [The Company
acknowledges that the statements set forth in the last paragraph of the cover
page, the legend constituting the first paragraph of page S-2 and the third
paragraph, eighth paragraph and the third sentence of the ninth paragraph under
the heading "Underwriting" in the prospectus supplement forming a part of the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the Prospectus, and you confirm
that such statements are correct.]
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party otherwise than under
this Section. In case any such action is brought against any indemnified party,
and it notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section, for any reason other than as
specified therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses, except to the
extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of
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contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of the
Securities (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. No
Underwriter or any person controlling such Underwriter shall be obligated to
make contribution hereunder that in the aggregate exceeds the total public
offering price of the Securities purchased by such Underwriter under this
Agreement, less the aggregate amount of any damages that such Underwriter and
its controlling persons have otherwise been required to pay in respect of the
same claim or any substantially similar claim. The Underwriters' obligations to
contribute are several in proportion to their respective underwriting
obligations and not joint.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities hereunder and the aggregate
principal amount of Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Securities, you may make arrangements satisfactory to the Company for the
purchase of such Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Securities with
respect to which such default or defaults occur is more than the above principal
amount and arrangements satisfactory to you and the Company for the purchase of
such Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 10. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
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9. Termination. This Agreement shall be subject to
termination, by notice given to the Company prior to delivery of and payment for
the Securities, if (a) prior to such time (i) trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited,
(ii) trading in the Common Stock of the Company on the New York Stock Exchange
shall have been suspended, (iii) a general moratorium on commercial banking
activities in New York, Delaware or Texas shall have been declared by Federal,
New York or Texas authorities or (iv) there shall have occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis having an adverse
effect on the financial markets of the United States and (b) the occurrence or
consequences of any one or more of such events shall have, in the reasonable
judgment of the Underwriters, made it impracticable to market the Securities on
the terms and in the manner contemplated by the Prospectus.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or the Company or any of its officers or
directors or any controlling person, and will survive delivery of and payment
for the Securities. If for any reason the purchase of the Securities by the
several Underwriters is not consummated, the Company shall remain responsible
for expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Underwriters pursuant to Section 7
shall remain in effect.
11. Notices. All communications hereunder will be in writing,
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to [ ], Attention: [ ], or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 270 Park Avenue, New
York, N.Y. 10017, Attention: Office of the Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed to such Underwriter at its address furnished to the Company by such
Underwriter.
12. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the parties
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hereto and their respective successors and the officers and directors and
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company and you in
accordance with its terms.
J.P. MORGAN CHASE & CO.,
by
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Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
by
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Name:
Title:
On behalf of each of the Underwriters