Exhibit 1.10
SELLING AGENT AGREEMENT
by and among
Prudential Financial, Inc.
and the
Agents named herein
April 29, 2005
April 29, 2005
To Bank of America Securities LLC and the Agents
listed on the signature page hereto.
Prudential Financial, Inc., a New
Jersey corporation (the “Company”), proposes to issue
and sell up to $2,000,000,000 aggregate principal amount at any one
time outstanding of its Retail Medium-Term Notes, including those
designated as InterNotes ® , due one year or more from the
date of issue (such Retail Medium-term Notes, excluding the
InterNotes ® , are referred to herein as the
“Notes”). It is understood that the Company may from
time to time authorize the issuance and sale of additional amounts
of the Notes and that such Notes may be issued and sold pursuant to
the terms of this Agreement, all as though the issuance and sale of
such Notes were authorized by the Company as of the date hereof.
The Notes are to be issued pursuant to a senior debt securities
indenture, dated as of April 25, 2003, between the Company and
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
as amended to designate the Trustee for the Notes by a supplemental
indenture, dated as of March 25, 2004 (as amended or supplemented
from time to time, the “Indenture”), between the
Company and Citibank, N.A. as Trustee (the “Trustee”).
The Company’s Retail-Medium Term Notes, including those
designated as InterNotes ® , constitute a single series of
debt securities for purposes of the Indenture. The terms of the
Notes are described in the Prospectus referred to below.
Subject to the terms and conditions
contained in this Agreement, the Company hereby (1) appoints each
of you as agent of the Company (each, an “Agent” and
together, the “Agents”) for the purpose of soliciting
offers to purchase Notes and each of you hereby agrees to use your
reasonable best efforts to solicit offers to purchase Notes upon
terms acceptable to the Company at such times and in such amounts
as the Company shall from time to time specify and in accordance
with the terms hereof, and after consultation with the purchasing
agent in connection with a particular issuance of Notes, who shall
be specified by the Company in accordance with the terms hereof
(the “Purchasing Agent”), and (2) agrees that whenever
the Company determines to sell Notes pursuant to this Agreement,
such Notes shall be sold pursuant to a Terms Agreement (as defined
herein) relating to such sale in accordance with the provisions of
Section IV hereof between the Company and the Purchasing Agent,
with the Purchasing Agent purchasing such Notes as principal for
resale to other Agents or dealers (the “Selected
Dealers”), each of whom will purchase as principal. The
Company reserves the right to enter into agreements substantially
similar hereto with other agents and in particular, it is
understood that the Company has entered into a similar agreement
dated as of April 29, 2005 with respect to its InterNotes
®
.
I.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement (File Nos. 333-104444, 333-104444-01,
333-104444-02, 333-123240, 333-123240-01 and 333-123240-02)
(including the exhibits thereto and as amended from time to time,
the “Registration Statement”) that included a base
prospectus which sets forth
InterNotes ® is a registered servicemark of Incapital
Holdings LLC
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the general terms of the Notes (in the form in
which it appears in the Registration Statement and including any
documents incorporated therein by reference, the “Basic
Prospectus”). Under the Registration Statement, the Notes may
be offered from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the “Securities
Act”). The Registration Statement has been declared effective
by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”). The Basic Prospectus and prospectus supplement, dated
as of the date hereof, relating to the Notes, filed pursuant to
Rule 424 under the Securities Act, including all documents
incorporated therein by reference, as from time to time amended or
supplemented, including any Pricing Supplement (as defined herein),
are referred to herein as the “Prospectus.”
II.
The Agents’ obligations
hereunder are subject to the accuracy of the representations and
warranties on the part of the Company herein contained, to the
accuracy of the statements of the Company’s officers made in
any certificates furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all of its
covenants and agreements herein contained, and to the following
additional conditions:
(a) On the date hereof, the Agents
shall have received the favorable opinion or opinions, dated the
date hereof, of corporate counsel for the Company reasonably
satisfactory to the Agents, in form and scope reasonably
satisfactory to the Agents, to the following effect:
(1) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the State of New Jersey. The Company has power and
authority, corporate and other, to own its properties and to
conduct its business as described in the Prospectus, as amended and
supplemented, and to enter into and perform its obligations under
this Agreement, any applicable Terms Agreement, the Indenture and
the Notes.
(2) Prudential Holdings, LLC has
been duly organized and is an existing limited liability company in
good standing under the laws of the State of New Jersey; and (B)
The Prudential Insurance Company of America has been duly organized
and is a validly existing stock life insurance company in good
standing under the laws of the State of New Jersey.
(3) To the extent that each of The
Gibraltar Life Insurance Company, Ltd. and The Prudential Life
Insurance Company, Ltd. is a “significant subsidiary”
of the Company within the meaning of Rule 1-02 of Regulation S-X
under the Securities Act, each such subsidiary has been duly
incorporated and is an existing Japanese kabushiki kaisha in
good standing under the laws of Japan.
(4) This Agreement has been duly
authorized, executed and delivered by the Company, and any
applicable Terms Agreement has been duly authorized by the Company.
The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture
Act and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency,
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reorganization, moratorium,
fraudulent transfer and other similar laws relating to or affecting
enforcement of creditors’ rights generally or by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(5) The issuance and sale of the
Notes have been authorized by the Company. When executed,
authenticated and delivered in accordance with the provisions of
this Agreement, any applicable Terms Agreement, and the Indenture
against payment of consideration therefor, the Notes will have been
duly executed and delivered by, and will constitute valid and
binding obligations of, the Company, enforceable against the
Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws relating to
or affecting enforcement of creditors’ rights generally or by
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(6) Such counsel does not know of
any litigation or governmental proceeding instituted or threatened
against the Company or any of its consolidated subsidiaries that
would be required to be described in the Prospectus, as amended or
supplemented, and is not so described; and no legal or governmental
proceeding is pending or, to such counsel’s knowledge, is
currently being threatened challenging the offering of the Notes
that would be required to be described in the Prospectus, as
amended or supplemented, and is not so described.
(7) No authorization, decree,
approval, consent, order, registration or qualification of or with
any court or governmental authority, agency or official is required
to be obtained by the Company in connection with the execution,
delivery or performance by the Company of this Agreement, the
Indenture, any applicable Terms Agreement or the Notes, or in
connection with the offering, issuance or sale of the Notes or the
consummation of any of the transactions contemplated therein,
except such as have been obtained and made under the Securities Act
and the Trust Indenture Act and such as may be required under state
securities or “Blue Sky” laws (as to which such counsel
need express no opinion).
(8) The execution and delivery of
this Agreement, any applicable Terms Agreement, the Indenture and
the Notes, and the consummation by the Company of the transactions
contemplated herein and therein, and the compliance by the Company
with its obligations hereunder and thereunder, will not result in a
breach of, or default under, any material contract, indenture,
mortgage, loan agreement, note, lease or other material agreement
or instrument known to such counsel (after due inquiry and
investigation) to which the Company is a party or by which it may
be bound or to which any of the property or assets of the Company
is subject, nor will such action result in any violation of the
provisions of the Amended and Restated Certificate of Incorporation
or By-Laws of the Company or any New York, New Jersey or United
States federal statute or law or any order, rule or regulation of
any court or insurance regulatory agency or other governmental
agency or body having jurisdiction over the Company or any of its
properties, except to the extent that such breach, default or
violation would not have individually or in the aggregate, a
material adverse effect on the business, management,
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financial position,
shareholders’ equity or results of operations (in each case
considered on a U.S. generally accepted accounting principles
(“GAAP”) basis) of the Company and its subsidiaries,
considered as a whole (a “Material Adverse Effect”);
provided, however , that, for purposes of this opinion (8),
such counsel need not express any opinion with respect to federal
and state securities laws, other antifraud laws and fraudulent
transfer laws.
(9) (A) To such counsel’s
knowledge, each of the Company, and, to the extent that each of the
following entities is a “significant subsidiary” of the
Company within the meaning of Rule 1-02 of Regulation S-X under the
Securities Act, each of Prudential Holdings, LLC and The Prudential
Insurance Company of America is registered in all capacities with
each federal, state, local or other governmental authority and is
registered with, a member of, or a participant in, each
self-regulatory organization, in each case, as is necessary to
conduct its business as described in or contemplated by the
Prospectus except as set forth in the Prospectus, except where
failure to be so registered would not have, individually or in the
aggregate, a Material Adverse Effect; (B) to such counsel’s
knowledge, all such registrations and memberships are in full force
and effect and neither the Company nor any of its subsidiaries has
received any notice of any event, inquiry, investigation or
proceeding that would reasonably be expected to result in the
suspension, revocation or limitation of any such registrations or
memberships, except as set forth in the Prospectus and except as
would not have, individually or in the aggregate, a Material
Adverse Effect; and (C) to such counsel’s knowledge, each of
the Company and its subsidiaries is in compliance with all
applicable laws, rules, regulations, orders, By-Laws and similar
requirements in connection with such registrations or memberships,
as the case may be, except as set forth in the Prospectus and
except as would not have, individually or in the aggregate, a
Material Adverse Effect.
(10) To such counsel’s
knowledge, and, to the extent that each of the following entities
is a “significant subsidiary” of the Company within the
meaning of Rule 1-02 of Regulation S-X under the Securities Act,
each of The Gibraltar Life Insurance Company, Ltd. and The
Prudential Life Insurance Company, Ltd. is registered with the
Japanese Financial Supervisory Authority; (B) such registration is
in full force and effect and neither The Gibraltar Life Insurance
Company, Ltd. nor The Prudential Life Insurance Company, Ltd. has
received any notice of any event, inquiry, investigation or
proceeding that would reasonably be expected to result in the
suspension, revocation or limitation of any such registration,
except as set forth in the Prospectus and except as would not have,
individually or in the aggregate, a Material Adverse Effect; and
(C) each of The Gibraltar Life Insurance Company, Ltd. and The
Prudential Life Insurance Company, Ltd. is in compliance with all
applicable laws, rules, regulations, orders, By-Laws and similar
requirements in connection with such registration, except as set
forth in the Prospectus and except as would not have, individually
or in the aggregate, a Material Adverse Effect.
(11) The statements set forth under
the heading “Description of the Notes” in the
Prospectus, insofar as such statements purport to summarize certain
provisions of the Notes and the Indenture, provide a fair summary
of such provisions.
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In rendering such opinion, such
counsel may state that such counsel expresses no opinion as to the
laws of any jurisdiction other than the federal laws of the United
States and the laws of the States of New Jersey and New York; that,
insofar as such opinion involves factual matters, such counsel has
relied upon certificates of officers of the Company and its
subsidiaries and certificates of public officials and other sources
believed by such counsel to be responsible; and that such counsel
has assumed that the Indenture has been duly authorized, executed
and delivered by the Trustee, that the Notes conform to the form
thereof examined by such counsel (or members of the Company’s
legal department acting under such counsel’s supervision),
that the Trustee’s certificates of authentication of the
Notes have been manually signed by one of the Trustee’s
authorized signatories and that the signatures on all documents
examined by such counsel (or members of the Company’s legal
department acting under such counsel’s supervision) are
genuine (assumptions that such counsel has not independently
verified). In addition, such counsel may state that such counsel
has examined, or has caused members of the Company’s legal
department to examine, such corporate and partnership records,
certificates and other documents, and such questions of law as such
counsel has considered necessary or appropriate for the purposes of
such opinion.
Such counsel shall also state: (i)
that the Registration Statement, as of its effective date, and the
Prospectus, as amended or supplemented as of the date thereof (or,
if such opinion is being delivered in connection with the purchase
of Notes by any Agent as principal pursuant to Section VII(c)
hereof, at the date of the applicable Terms Agreement and the date
of delivery of such Notes (the “Settlement Date”) with
respect thereto, appeared on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (ii) that nothing that came to such
counsel’s attention in the course of the Company’s
review has caused such counsel to believe that the Registration
Statement, as of its effective date, 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 or that the Prospectus, as amended or supplemented,
as of the date thereof or as of the date of the applicable Terms
Agreement and as of the Settlement Date with respect thereto,
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. Such counsel may also state that to the extent any of
the opinions of this Section II(a) involve (i) New Jersey law, such
counsel has relied with the Agents’ permission on the opinion
of Susan L. Blount, Senior Vice President and General Counsel of
the Company, addressed to the Agents and (ii) Japanese law, such
counsel has relied with the Agents’ permission on the
opinions of Jonathan S. Malamud, Corporate Vice President and Chief
Legal Officer of each of The Gibraltar Life Insurance Company, Ltd.
and The Prudential Life Insurance Company, Ltd., addressed to the
Agents. Such counsel may also state that to the extent any of the
opinions of this Section II(a) involve New York law, such counsel
has relied with the Agents’ permission on the opinion of
either Brian J. Morris, Vice President and Corporate Counsel of the
Company, or Stephen W. Gauster, Vice President and Corporate
Counsel of the Company, each of whom is admitted to practice law in
the State of New York, addressed to the Agents. Such counsel may
also state that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, as amended or
supplemented (except to the extent expressly set forth in paragraph
(10) above). Such counsel may state that he does not
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express any opinion or belief as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus, as amended or
supplemented.
(b) On the date hereof, the Agents
shall have received the favorable opinion, dated the date hereof,
of Cleary Gottlieb Steen & Hamilton LLP, counsel to the Agents,
in form and scope reasonably satisfactory to the Agents, with
respect to the validity of the Indenture, the Notes, the
Registration Statement and the Prospectus and other related matters
as such Agent or Agents may reasonably request.
(c) On the date hereof, the Agents
shall have received a certificate of the President or any Vice
President and the Treasurer or any Assistant Treasurer of the
Company, dated as of the date hereof, to the effect that (i) since
the respective dates as of which information is given in the
Prospectus, there has not been any material change in the
stockholders’ equity or long-term debt of the Company (other
than as a result of the sale of (A) Notes and InterNotes
®
, (B) notes issued
pursuant to the Company’s Medium-Term Note Program or Euro
Medium-Term Note Programme or (C) notes issued pursuant to the
Commercial Paper Program of Prudential Funding, LLC) or any
material adverse change, or any development which will involve a
prospective material adverse change, in or affecting the business,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries
considered as a whole; (ii) the representations and warranties of
the Company contained in Section VI hereof are true and correct
with the same force and effect as though expressly made at and as
of the date of such certificate; (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied in connection with the
performance of its obligations hereunder at or prior to the date of
such certificate; and (iv) no Event of Default (as defined in the
Indenture), or event which, with the giving of notice or the lapse
of time or both, would constitute an Event of Default, shall have
occurred and be continuing.
(d) On the date hereof, each Agent
shall have received from PricewaterhouseCoopers LLC a letter in
form and substance satisfactory to the Agents, dated as of the date
hereof, containing statements and information of the type
ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Prospectus, as then amended or
supplemented.
(e) On or prior to the time any
Agent purchases Notes pursuant to a Terms Agreement: (i) there
shall not have been any litigation or proceeding threatened or
pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the
Notes; (ii) there shall not have occurred, since the date of the
Terms Agreement, any downgrading nor shall any notice have been
given of (A) any downgrading, (B) any intended or potential
downgrading or (C) any review or possible change with possible
negative implications in the rating accorded any debt security or
preferred stock of the Company by any “nationally recognized
statistical rating organization”, as such term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities
Act; (iii) there shall not have been since the respective dates as
to which information is given in the Prospectus, any material
decrease in the stockholders’ equity of the Company or any
material increase in the consolidated long-term debt of the Company
(other than as a result of the sale of (A) Notes and
InterNotes ® , (B) notes issued pursuant to the
Company’s Medium-Term Note Program or Euro Medium-Term Note
Programme or (C) notes issued pursuant to the Commercial Paper
Program of Prudential
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Funding, LLC) or any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the business, management, financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, considered as a whole, in each case other
than as set forth in the Prospectus, the effect of which in the
judgment of the Purchasing Agent makes it impracticable or
inadvisable to proceed with the purchase by any Agent of Notes from
the Company on the terms and in the manner contemplated in the
Prospectus; and neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss
or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance (excluding, for
the avoidance of doubt, any insurance underwriting losses of the
Company or its subsidiaries), or from any labor dispute or court or
governmental action, order or decree, in each case other than as
set forth or contemplated in the Prospectus; (iv) (A) trading
generally shall not have been suspended or materially limited on
the New York Stock Exchange, the National Association of Securities
Dealers, Inc. or in the over-the-counter market in debt securities,
(B) trading of any securities of or guaranteed by the Company shall
not have been suspended or materially limited on the New York Stock
Exchange, the National Association of Securities Dealers, Inc. or
in any over-the-counter market in debt securities, (C) a general
moratorium on commercial banking activities in New York shall not
have been declared by either Federal, New York State or New Jersey
authorities nor shall a material disruption in commercial banking
or securities settlement or clearance services in the United States
or other relevant jurisdiction have occurred, or (D) there shall
not have occurred any outbreak or escalation of hostilities or the
declaration by the United States of a national emergency or war or
any other calamity or crisis involving the United States or any
change in national or international financial, political or
economic conditions or currency exchange rates or controls that, in
the judgment of the Purchasing Agent makes it impracticable or
inadvisable to proceed with the purchase by any Agent of Notes from
the Company on the terms and in the manner contemplated in the
Prospectus at the time an offer to purchase was solicited or at the
time such offer to purchase was made; and (v) no Event of Default,
or event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default, shall have occurred and
be continuing.
III.
The Company covenants and agrees
with each Agent as follows:
(a) Prior to the termination of the
offering of the Notes pursuant to this Agreement or any Terms
Agreement, the Company will not file any prospectus supplement or,
except as provided below, any pricing supplement relating to the
Notes or any amendment to the Registration Statement unless the
Company has previously furnished to the Agents copies thereof for
their review and will not file any such proposed supplement or
amendment to which the Agents reasonably object; provided,
however , that (i) the foregoing requirement shall not apply to
any of the Company’s periodic filings with the Commission
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, (the “Exchange
Act”), copies of which filings, in the case of quarterly
reports on Form 10-Q and annual reports on Form 10-K, the Company
will cause to be delivered to the Agents promptly after being
transmitted for filing with the Commission and (ii) any pricing
supplement that merely sets forth
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the terms or a description of particular Notes
(each a “Pricing Supplement”) shall only be reviewed
and approved by the Agent or Agents offering such Notes. Subject to
the foregoing sentence, the Company will promptly cause each
prospectus supplement and Pricing Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule
424(b) under the Securities Act. The Company will promptly advise
the Agents (i) of the filing of any amendment or supplement to the
Basic Prospectus (except that notice of the filing of an amendment
or supplement to the Basic Prospectus that merely sets forth the
terms or a description of particular Notes shall only be given to
the Agent or Agents offering such Notes), (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii)
of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Prior
to the termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement, the Company will use its
reasonable efforts to prevent the issuance of any such stop order
or notice of suspension of qualification and, if issued, to obtain
as soon as possible the withdrawal thereof. If the Basic Prospectus
is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to
purchase Notes so long as it is not reasonably satisfied with such
document.
If any event shall occur or
condition shall exist as a result of which the Prospectus, in the
opinion of counsel for the Agents or counsel for the Company,
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, or if in the opinion of any such counsel it is
necessary at any time to amend or supplement the Registration
Statement or the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company shall prior to the
acceptance of any offer to purchase Notes prepare and, subject to
this Section III(a), cause to be filed with the Commission an
amendment or supplement to the Registration Statement or the
Prospectus, as then amended or supplemented, in form and substance
satisfactory to counsel for the Agents, that corrects such untrue
statement or omission or effects such compliance and shall furnish
such amended or supplemented Prospectus to the Agents in such
numbers as they may require.
(b) Reasonably in advance of each
time any annual report of the Company filed under the Exchange Act
is incorporated by reference into the Prospectus, and each time the
Company sells Notes to such Agent as principal pursuant to a
written Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Cleary Gottlieb Steen &
Hamilton LLP, counsel to the Agents, as a condition to the purchase
of Notes pursuant to such Terms Agreement, the Company shall
furnish to such counsel such papers and information as they may
reasonably request to enable them to furnish to such Agent the
opinion or opinions referred to in Section II(b) hereof.
(c) The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and
sale under the applicable securities laws of such states and other
jurisdictions as
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the Agents may reasonably designate, and will
maintain such qualifications in effect for as long as may be
required for the distribution of the Notes; 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 in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes
have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(d) Between the date of any Terms
Agreement and the Settlement Date with respect thereto, and if
agreed to by the applicable Agent or Agents and the Company, the
Company will not, without the prior written consent of each such
Agent, directly or indirectly, sell, offer to sell, or enter into
any agreement to sell, any debt securities of the Company which are
substantially similar to the Notes that are to be sold pursuant to
such Terms Agreement. Any notes sold under the Company’s
Medium-Term Note Program or Euro-Medium-Term Note Programme shall
not be considered to be “substantially similar” to the
Notes for purposes of the immediately preceding
sentence.
(e) The Company shall make generally
available to its security holders as soon as practicable, but in
any event not later than 90 days after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder.
(f) The Company shall not be
required to comply with the provisions of subsections (a) or (b) of
this Section or the provisions of Section VII hereof during any
period from the time that the Agents (i) shall have been notified
(such notice to be confirmed in writing) by the Company to suspend
solicitation of offers to purchase the Notes and (ii) shall not
then hold any Notes purchased as principal pursuant hereto, until
the time the Company shall have notified the Agents (such notice to
be confirmed in writing) of the Company’s determination that
solicitation of purchases of the Notes should be resumed or any
Agent shall subsequently purchase Notes from the Company as
principal and the Company has subsequently delivered such documents
required by Section VII.
(g) The Company will use the net
proceeds received by it from the sale from time to time of Notes in
the manner specified in the Prospectus under “Use of
Proceeds”.
IV.
(a) The Company agrees that, unless
otherwise agreed, during the period the Agents are acting as the
Company’s placement agents hereunder, the Company will not
engage any other person or party to assist in the placement of the
Notes; provided , however , that the Company may
accept offers to purchase Notes through an agent other than an
Agent if (i) the Company shall have executed a confirmation letter
and such agent shall have executed an accession letter
substantially in the form of Exhibits F and G, respectively,
attached hereto and (ii) the Company shall have provided the Agents
with copies of such letters promptly following
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the execution thereof. The Company shall appoint
one of the Agents, whether an original party to this Agreement or
appointed as Agent through the procedures described in this Section
IV(a), as Purchasing Agent for each issuance and sale of the Notes
pursuant to this Agreement, and such Purchasing Agent shall be
specified in the applicable Terms Agreement and Pricing
Supplement.
(b) Notes shall be purchased by each
Agent as principal. The Agents shall offer the Notes upon the terms
and conditions set forth herein and in the Prospectus and upon the
terms communicated to the Agents from time to time by the Company
or the Purchasing Agent, as the case may be (which terms, unless
otherwise agreed, may be agreed upon orally, with written
confirmation prepared by such Agent or Agents and sent by facsimile
to the Company). For the purpose of such sales the Agents will use
the Prospectus, as then amended or supplemented, which has been
most recently distributed to the Agents by the Company, and the
Agents will offer and sell the Notes only as permitted or
contemplated thereby and herein and will offer and sell the Notes
only as permitted by the Securities Act and the applicable
securities laws or regulations of any jurisdiction. An
Agent’s commitment to purchase Notes as principal shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Unless the context
otherwise requires, references herein to “this
Agreement” shall include the agreement of one or more Agents
to purchase Notes from the Company as principal.
The Company agrees to sell the Notes
to the Purchasing Agent at a discount from the principal amount of
each such Note equivalent to the applicable commission set forth in
Exhibit A hereto; provided, however, that the Company and the
Purchasing Agent may agree instead to a discount greater than or
less than the percentages set forth on Exhibit A hereto. The actual
aggregate discount with respect to each sale of Notes will be set
forth in the related Terms Agreement and Pricing Supplement. The
Purchasing Agent and the other Agents or selected broker-dealers
(the “Selected Dealers”) will share the above-mentioned
discount in such proportions as they may agree.
(c) Procedural details relating to
the issue and delivery of, and the solicitation of purchases and
payment for, the Notes are set forth in the Administrative
Procedures attached hereto as Exhibit B (the
“Procedures”), as amended from time to time. Unless
otherwise provided in a Terms Agreement, the provisions of the
Procedures shall apply to all transactions contemplated hereunder.
The Agents and the Company each agree to perform the respective
duties and obligations specifically provided to be performed by
each in the Procedures as amended from time to time. The Procedures
may only be amended by written agreement of the Company and the
Agents.
V.
Each sale of Notes shall be made in
accordance with the terms of this Agreement, the Procedures and a
separate agreement in substantially the form attached as Exhibit C
(a “Terms Agreement”) to be entered into which will
provide for the sale of such Notes to, and the purchase and
reoffering thereof, by the Purchasing Agent as principal. A Terms
Agreement may also specify certain provisions relating to the
reoffering of such Notes by the Purchasing Agent. The offering of
Notes by the Company hereunder and the Purchasing Agent’s
agreement to purchase Notes pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the
10
representations, warranties and agreements of
the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall describe
the Notes to be purchased pursuant thereto by the Purchasing Agent
as principal, and may specify, among other things, the principal
amount of Notes to be purchased, the interest rate or interest rate
basis (and whether such interest rate shall be fixed or floating)
and maturity date or dates of such Notes, the interest payment
dates, if any, the net proceeds to the Company, the initial public
offering price at which the Notes are proposed to be reoffered, and
the time, Settlement Date and place of delivery of and payment for
such Notes, total discounts and commissions received by the Agents
with respect to such Notes, whether the Notes provide for a
Survivor’s Option (as such term is defined in the
Prospectus), whether the Notes are redeemable or repayable and on
what terms and conditions, and any other relevant terms. In
connection with the resale of the Notes purchased, without the
consent of the Company or the Purchasing Agent, the Agents are not
authorized to appoint subagents or to engage the service of any
other broker or dealer, other than the Selected Dealers, nor may
any Agent reallow any portion of the discount paid to
it.
VI.
The Company represents and warrants
to each Agent as of the date hereof, as of the date of each
acceptance by the Company of an offer for the purchase of Notes
(including any purchase by the Purchasing Agent as principal,
pursuant to a Terms Agreement or otherwise), as of each Settlement
Date, and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed with
the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of debt securities under the
Registration Statement) (each of the times referenced above being
referred to herein as a “Representation Date”) as
follows:
(a) The Registration Statement has
been filed with the Commission and has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and, to the knowledge of the Company, no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if
applicable, 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 not misleading, (iii)
the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus
does not contain and, if applicable, will not contain 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 under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished in writing to the Company by any Agent
expressly for use therein.
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(c) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with power and
authority (corporate and other) to own its properties and to
conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except to the extent
that the failure to be so qualified or in good standing would not
have, individually or in the aggregate, a Material Adverse
Effect.
(d) Each of this Agreement and any
other applicable Terms Agreement has been duly authorized, executed
and delivered by the Company; the Indenture has been duly qualified
under the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting enforcement of
creditors’ rights generally or by general equitable
principles; the Notes have been duly authorized by the Company and,
when executed, authenticated and delivered in accordance with the
provisions of this Agreement, any applicable Terms Agreement and
the Indenture against payment therefor, will have been duly
executed and delivered by, and will constitute valid and binding
obligations of, the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting enforcement of
creditors’ rights generally or by general equitable
principles; and the terms of the Indenture and the Notes in respect
of which an offer to purchase has been accepted by the Company are
in all material respects accurately described in the
Prospectus.
(e) None of the Company or any of
its subsidiaries has sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business that is, individually or in the
aggregate, material to the Company and its subsidiaries, considered
as a whole, from fire, explosion, flood or other calamity, whether
or not covered by insurance (excluding, for the avoidance of doubt,
any insurance underwriting losses of the Company or its
subsidiaries), or from any labor dispute or court or governmental
action, order or decree, in each case other than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (i) there has
been no material decrease in the capital or surplus of the Company,
(i) there has been no decrease in the capital stock of the Company
or any material increase in the consolidated long-term debt of the
Company (other than, in each case, as a result of the sale of (A)
Notes and InterNotes ® , (B) notes issued pursuant to the
Company’s Medium-Term Note Program or Euro Medium-Term Note
Programme or (C) notes issued pursuant to the Commercial Paper
Program of Prudential Funding, LLC) and (iii) there has been no
material adverse change, or any development which will involve a
prospective material adverse change, in or affecting the business,
management, financial position, shareholders’ equity (in each
case considered on a GAAP basis) or the financial strength ratings
of the Company and its subsidiaries considered as a
whole.
(f) The execution and delivery of
this Agreement, any applicable Terms Agreement, the Indenture and
the Notes, the consummation of the transactions contemplated herein
and therein and compliance by the Company with its obligations
hereunder and thereunder, as the
12
case may be, will not conflict with, 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 to which the
Company or any of its subsidiaries is a party or by which the
Company, or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the Amended and Restated Certificate of Incorporation
or By-Laws of the Company or the organizational documents of any of
its subsidiaries or any statute or any order, rule or regulation of
any court or insurance regulatory agency or other governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except to the extent that
such a conflict, breach, default or violation would not have,
individually or in the aggregate, a Material Adverse
Effect.
(g) Neither the Company nor any of
its subsidiaries is, or at any time of delivery of the Notes will
be, in violation of its Amended and Restated Certificate of
Incorporation or By-Laws or other organizational documents or
instruments or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, which violation or default
would have, individually or in the aggregate, a Material Adverse
Effect.
(h) There are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect, other than as set forth in the Prospectus; and, to
the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others, other than as set forth in the
Prospectus.
(i) No consent or action of, or
filing or registration with, any governmental or public regulatory
body or authority, is required to be obtained by the Company in
connection with the execution, delivery or performance by the
Company of this Agreement, any applicable Terms Agreement, the
Indenture or the Notes, except such as have been obtained and made
under the Securities Act and the Trust Indenture Act and such as
may be required under the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes.
(j) The Company is not, nor after
giving effect to the transactions contemplated herein will be, an
“investment company” as such term is defined in the
U.S. Investment Company Act of 1940, as amended (the “1940
Act”).
(k) The obligations of the Company
to pay the principal of and premium, if any, and interest on the
Notes and any and all amounts that become due and payable under
this Agreement constitute direct, unconditional and general
obligations of the Company and rank and will rank pari passu
in priority of payment with respect to all unsecured and
unsubordinated indebtedness of the Company.
(l) PricewaterhouseCoopers LLP, who
have certified certain financial statements of the Company and its
subsidiaries, are independent registered public accountants as
required by the Securities Act and the rules and regulations of the
Commission thereunder.
13
(m) The consolidated financial
statements of the Company and its subsidiaries, together with the
related schedules, notes and supplemental information, set forth in
the Prospectus, comply in all material respects with the
requirements of the Securities Act and interpretations thereof and
present fairly in all material respects the financial position, the
results of operations and the changes in cash flows of such
entities in conformity with GAAP at the respective dates or for the
respective periods to which they apply; such statements and related
schedules, notes and supplemental information have been prepared in
accordance with GAAP consistently applied throughout the periods
involved except for any normal year-end adjustments and except as
described therein.
VII.
The Company covenants and agrees with each Agent
that:
(a) Each acceptance by the Company
of an offer for the purchase of Notes and each delivery of Notes,
shall be deemed to be an affirmation that the representations and
warranties contained in this Agreement are true and correct at the
time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or its agent,
or to the applicable Agent, of the Note or Notes relating to such
acceptance or sale, as the case may be, as though made at and as of
each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and the
Prospectus as amended and supplemented at each such
time).
(b) Each time that there is filed
with the Commission any Quarterly Report on Form 10-Q or Annual
Report on Form 10-K incorporated by reference into the Prospectus,
and otherwise only (i) as may be required in connection with a sale
pursuant to Section IV(a) or (ii) at such times as may be
reasonably requested by the Agents in the event of a material
change in circumstances in respect of the Company, the Company
shall furnish or cause to be furnished to the Agent(s) forthwith a
certificate dated the date of filing with the Commission of such
document, the date requested by the Agents or the date of such
sale, as the case may be, in form reasonably satisfactory to the
Agent(s) to the effect that the statements contained in the
certificate referred to in Section II(c) hereof which were last
furnished to the Agents are true and correct at the time of such
filing, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate substantially similar to
the certificate referred to in Section II(c) hereof, modified as
necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such certificate.
(c) Each time that there is filed
with the Commission any Quarterly Report on Form 10-Q or Annual
Report on Form 10-K incorporated by reference into the Prospectus,
and otherwise only as may be required in connection with a sale
pursuant to Section IV(a), the Company shall furnish or cause to be
furnished forthwith, and in any case promptly upon request, to the
Agent(s) and to counsel to the Agents the written opinion of
counsel to the Company referred to in Section II(a), or other
counsel reasonably satisfactory to the Agent(s), dated the date of
filing with the Commission of such document, the date requested by
the Agent(s) or the date of such sale, as the case may be, in form
and scope reasonably satisfactory
14
to the Agent(s), of the same tenor as the
opinions referred to in Section II(a) (except that, in the case of
any interim report filed on Form 10-Q or other document or annual
report on Form 10-K filed under the Exchange Act, such opinions
need not be rendered as to the good standing of the entities
referred to in Sections II(a)(2) and (3) hereof or as to the
matters referred to in Section II(a)(9) and (10) hereof), but
modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery
of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agent(s)
with a letter substantially to the effect that the Agent(s) may
rely on such last opinion to the same extent as though it were
dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance).
(d) Each time that there is filed
with the Commission any Quarterly Report on Form 10-Q or Annual
Report on Form 10-K incorporated by reference into the Prospectus,
and otherwise only as may be requested by the Agents in connection
with a sale pursuant to Section IV(a), the Company shall furnish or
cause their independent registered public accountants to furnish
such Agents (i) in the case of a sale, a letter dated the date of
such sale, in form reasonably satisfactory to the Agent(s),
substantially in the form of the letter referred to in Section
II(d) hereof, (ii) in the case of a filing of an Annual Report on
Form 10-K, a letter in form reasonably satisfactory to the
Agent(s), substantially in the form of the letter referred to in
Section II(d) hereof, and (iii) in the case of a Quarterly Report
on Form 10-Q, a review letter from such accountants in conformity
with the requirements of Statement of Accounting Standards No. 100,
but modified as necessary to relate to the Registration Statement
and Prospectus as amended and supplemented to the date of such
letter, with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the
accounting records of the Company.
VIII.
(a) The Company will indemnify and
hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become
subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the 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 Agent for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
action or claim as to which it is entitled to indemnification
hereunder as such expenses are incurred; provided, however, that
the Company shall 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 the Registration Statement or the
Prospectus as so amended or supplemented in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use therein.
(b) Each Agent, severally and not
jointly, will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may
become
15
subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the
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 any Registration Statement or
Prospectus as so amended or supplemented in reliance upon and in
conformity with written information furnished to the Company by
such Agent expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of
the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall 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
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party (or such
other release of the indemnified party as shall be satisfactory to
the indemnified party) from all liability arising out of such
action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided
for in this Section VIII is unavailable to or insufficient to hold
harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of such los
