Exhibit 1.1
JPMORGAN CHASE &
CO.
[SECURITIES TITLE]
UNDERWRITING
AGREEMENT
[DATE]
[LEAD REPRESENTATIVE]
As Representative of
the several Underwriters
listed in Schedule A hereto
c/o [LEAD REPRESENTATIVE
ADDRESS]
Ladies and Gentlemen:
1. Introductory. JPMorgan
Chase & Co., a Delaware corporation (the
“Company”), proposes to issue and sell
$[ ] principal
amount of its [SECURITIES TITLE] (the “Securities”).
The Securities will be issued under an indenture dated as of
[ ] (as amended and
supplemented, 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:
At or prior to the time when sales
of the Securities were first made (the “Time of Sale”),
the Company had prepared the following information (collectively,
the “Time of Sale Information”): a Prospectus
Supplement, Subject to Completion, dated
[ ] (including the
related Basic Prospectus dated
[ ]), (the
“Preliminary Prospectus”) and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex B hereto.
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
(No. 333-[ ])
relating to the Securities has been filed with the Securities and
Exchange Commission (the “Commission”). Such
Registration Statement (including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act of
1933, as amended (the “Act”) to be part of the
registration statement at the time of its effectiveness and 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 supplement is first filed
with the Commission on or after the date hereof pursuant to
Rule 424(b) under 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 Time of Sale Information and
the Prospectus (when filed with the Commission) and any amendments
and supplements to the Registration Statement or the Time of Sale
Information and 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, or required but
for Rule 172 under the Act, 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 (in the case of the
Prospectus, in the light under which they were made);
provided that this representation and warranty shall not
apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of the Securities through the Representative
expressly for use in the Prospectus, as amended or supplemented,
relating to such Securities.
(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.
“Rules and Regulations” means the respective rules and
regulations of the Commission under the Act, the Exchange Act and
the Trust Indenture Act.
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(d) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s-length contractual counterparty to it with respect
to the offering of the Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, the Company or
any other person. Additionally, neither the Representative nor any
other Underwriter is advising the Company or any other person as to
any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the transactions contemplated
hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriters and shall not
be performed on behalf of the Company.
(e) The Time of Sale Information, at
the Time of Sale did not, and at the Closing Date (as defined
below), will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter expressly for use in such Time of Sale
Information. No statement of material fact included in the
Prospectus has been omitted from the Time of Sale Information and
no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has
been omitted therefrom.
(f) The Company (including its
agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized,
approved or referred to, and will not make, use, prepare,
authorize, approve or refer to, any “written
communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or the solicitation of an offer to buy
the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to
in clause (i), (ii) or (iii) below) an “Issuer Free
Writing Prospectus”) other than (i) the Preliminary
Prospectus, (ii) the Prospectus, (iii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Act or Rule 134 under the Act and (iv) the documents
listed on Annex B hereto and other written communications approved
in writing in advance by the Underwriters. Each such Issuer Free
Writing Prospectus complied in all material respects with the Act,
has been filed in accordance with the Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus
filed prior to the first use of such Issuer Free Writing Prospectus
did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter expressly for use in
any Issuer Free Writing Prospectus.
3
(g) The Registration Statement is an
“automatic shelf registration statement” as defined
under Rule 405 of the Act that has been filed with the Commission
not earlier than three years prior to the date hereof; and no
notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for
that purpose or pursuant to Section 8A of the Act against the
Company or related to the offering has been initiated or threatened
by the Commission.
(h) The Company is not an ineligible
issuer and is a well known seasoned issuer, in each case as defined
under the Act, in each case at the times specified in the Act in
connection with the offering of the Securities.
(i) The Company is a
“participating entity” in the “debt guarantee
program”, in each case as defined in the Temporary Liquidity
Guarantee Program (12 C.F.R. Part 370), as amended (the “TLG
Program”), adopted by the Federal Deposit Insurance
Corporation (the “FDIC”).
(j) As of the Closing Date, the
Company has duly authorized the “master agreement” (as
defined in Section 370.5 of the TLG Program), and the
“master agreement” (as defined in Section 370.5 of
the TLG Program) will be executed and delivered in accordance with
the terms and conditions of the TLG Program.
(k) The Notes to be issued by the
Company constitute “FDIC-guaranteed debt” (as defined
in Section 370.2(i) of the TLG Program) and do not exceed the
maximum amount of “FDIC-guaranteed debt” (as defined in
Section 370.2(i) of the TLG Program) issuable by the Company
and allowable under the TLG Program as set forth in
Section 370.3(b) of the TLG Program.
3. Purchase, Sale and Delivery of
the 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 of the Securities, plus accrued interest
from
[ ]
to the Closing Date (as defined below), the respective principal
amounts of the relevant of Securities set forth opposite the names
of the Underwriters in Schedule A hereto.
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The Company will deliver the
Securities to J.P. Morgan Securities Inc. for the respective
accounts of the Underwriters, at the office of JPMorgan Chase Bank,
as Authenticating Agent, at 4 New York Plaza, 15th Floor, New York,
New York, against payment of the purchase price by wire transfer in
immediately available funds payable to the Company, 270 Park
Avenue, New York, New York, at 10:00 a.m., New York
time, on the date of issuance, 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 (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.
(a) Each Underwriter represents,
warrants and agrees [INSERT ANY RELEVANT OFFERING
RESTRICTIONS].
(b) Each Underwriter hereby
represents and agrees that:
(i) It has not and will not use,
authorize the use of, refer to, or participate in the planning for
use of, any “free writing prospectus”, as defined in
Rule 405 under the Act (which term includes the use of any written
information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any
press release issued by the Company) other than (1) a free
writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Act)
that was not included (including through incorporation by
reference) in the Preliminary Prospectus or a previously filed
Issuer Free Writing Prospectus, (2) any Issuer Free Writing
Prospectus listed on Annex B or prepared pursuant to
Section 2(f) above, or (3) any free writing prospectus
prepared by such underwriter and approved by the Company in advance
in writing (each such free writing prospectus referred to in
clauses (1) or (3), an “Underwriter Free Writing
Prospectus”).
(ii) It has not and will not
distribute any Underwriter Free Writing Prospectus referred to in
clause 4(b)(i)3 in a manner reasonably designed to lead to its
broad unrestricted dissemination.
(iii) It has not and will not,
without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities
unless such terms have previously been included in a free writing
prospectus filed with the Commission; provided that
Underwriters may use term sheets substantially in the form of Annex
C hereto without the consent of the Company; provided
further that any Underwriter using such term sheets shall notify
the Company, and provide a copy of such term sheets to the Company,
prior to the first use of such term sheets.
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(iv) It is not subject to any
pending proceeding under Section 8A of the Act with respect to
the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery
Period).
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, pursuant to Rule 424(b)(5)) within the time periods
prescribed by Rule 424(b) and Rule 430A, 430B or 430C under the
Act; will file any Issuer Free Writing Prospectus to the extent
required by Rule 433 under the Act; and will provide evidence
satisfactory to you of such timely filing. The Company will pay the
registration fees for this offering within the time period required
by Rule 456(b)(1)(i) under the Act (without giving effect to the
proviso therein) and in any event prior to the Closing Date. The
Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus (other than
an amendment or a supplement relating solely to an offering of
securities other than the Securities or by reason of filing a
report under the Exchange Act that is incorporated by reference in
the Registration Statement or the Prospectus and does not relate
specifically to 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, any proceedings under
Section 401(g)(2) under the Act or any proceeding pursuant to
Section 8A of the Act, 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; before preparing, using,
authorizing, approving, referring to or filing any Issuer Free
Writing Prospectus, whether before or after the time that the
Registration Statement becomes effective, the Company will furnish
to the Underwriters and counsel for the Underwriters a copy of the
proposed Issuer Free Writing Prospectus, for review and will not
prepare, use, authorize, approve, refer to or file any such Issuer
Free Writing Prospectus to which the Underwriters reasonably
object.
(b) (i) If at any time when a
prospectus relating to the Securities is required to be delivered
under the Act (or required to be delivered but for Rule 172
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 a
