FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JPMORGAN CHASE & CO.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-2624428
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
(212) 270-6000
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(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)
Anthony J. Horan Corporate Secretary JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
(212) 270-6000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies to: Sarah E. Beshar
Roxane F. Reardon, Esq. Neila B. Radin, Esq. Davis Polk & Wardwell
Simpson Thacher & Bartlett LLP Senior Vice President 450 Lexington Avenue
425 Lexington Avenue and Associate New York, New York 10017
New York, New York 10017 General Counsel (212) 450-4000
JPMorgan Chase & Co.
270 Park Avenue
New York, New York
10017-2070
(212) 270-6000
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Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.[_]
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.[X]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[_] __________
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.[X]
If this Form is a post-effective amendment to a registration to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.[_]
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum
Proposed Aggregate Amount Of
Amount To Be Maximum Offering Registration
Title Of Securities To Be Registered Registered Offering Price Fee
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Debt securities,
warrants(4), units(5) and
purchase contracts............... (1)(2) (1)(2) (1)(2) (3)
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(1) Not applicable pursuant to Form S-3 General Instruction II (E).
(2) Such indeterminable number or amount of debt securities, warrants, units and purchase contracts is being registered as may from time to time be issued at indeterminable prices. This Registration Statement also includes such indeterminable amount of debt securities as may be issued from time to time upon exercise of warrants being registered hereunder. This Registration Statement also relates to offers and sales of debt securities, warrants, units and purchase contracts in connection with market-making transactions by and through affiliates of the registrant, including J.P. Morgan Securities Inc.
(3) Deferred in reliance upon Rule 456(b) and Rule 457(r), except for $665,574.67 that has already been paid with respect to securities that were previously registered pursuant to Registration Statement on Form S-3 (No. 333-130039) filed by the Registrant on December 1, 2005, and were not sold thereunder. Pursuant to Rule 457(p) under the Securities Act, such unutilized filing fee may be applied to the filing fee payable pursuant to this Registration Statement.
(4) Warrants may be issued together in units with any purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or other property. Warrants may entitle the holder (A) to purchase debt securities registered hereby, (B) to receive cash determined by reference to an index or indices, (C) to receive cash determined by reference to currencies, (D) to receive cash determined by reference to interest rates, or (E)(i) to purchase or sell securities of an entity other than the Registrant, a basket of such securities or commodities, or (ii) to receive cash determined by reference to any other financial, economic or other measure or instrument including the occurrence or non-occurrence of any other event or circumstance, or any combination of the above.
(5) Units may consist of one or more warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us, other property or any combination thereof.
Prospectus
JPMorgan Chase [Logo]
JPMorgan Chase & Co.
Debt Securities
Warrants
Units
Purchase Contracts
We will provide specific terms of these securities in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest.
These securities are not deposits or other obligations of a bank and are not insured by the Federal Deposit Insurance Corporation or any other federal agency.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
JPMorgan
This Prospectus is dated December 1, 2005
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the Securities and Exchange Commission utilizing a "shelf" registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in the prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement or more than one prospectus supplement, together with one or more pricing supplements and/or product supplements (together referred to herein as a "prospectus supplement") that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading "Where You Can Find More Information" beginning on page 1 of this prospectus.
Following the initial distribution of an offering of securities, J.P. Morgan Securities Inc. and other affiliates of ours and, if applicable, other third-party broker dealers may offer and sell those securities in the course of their businesses as broker dealers. J.P. Morgan Securities Inc. and other affiliates of ours and, if applicable, other third-party broker dealers may act as a principal or agent in these transactions. This prospectus and the applicable prospectus supplement will also be used in connection with those transactions. Sales in any of those transactions will be made at varying prices related to prevailing market prices and other circumstances at the time of sale.
No person is authorized to give any information or to make any representations other than those contained or incorporated by reference in this prospectus or the accompanying prospectus supplement, and, if given or made, such information or representations must not be relied upon as having been authorized. This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus or the accompanying prospectus supplement, nor any sale made hereunder and thereunder shall, under any circumstances, create any implication that there has been no change in the affairs of JPMorgan Chase & Co. since the date hereof or that the information contained or incorporated by reference herein or therein is correct as of any time subsequent to the date of such information.
TABLE OF CONTENTS
Page
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Where You Can Find More Information ....................................... 1
JPMorgan Chase & Co. ...................................................... 3
Consolidated Ratios of Earnings to Fixed Charges .......................... 5
Use of Proceeds ........................................................... 5
Description of Debt Securities ............................................ 6
Description of Warrants ................................................... 13
Description of Units ...................................................... 18
Description of Purchase Contracts ......................................... 22
Forms of Securities ....................................................... 24
Plan of Distribution ...................................................... 28
Experts ................................................................... 31
Legal Opinions ............................................................ 31
Benefit Plan Investor Considerations ...................................... 31
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In this prospectus, the "Company," "we," "us" and "our" refer to JPMorgan Chase & Co. and its subsidiaries, except where the context otherwise requires or as otherwise indicated.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the Commission. You may read and copy these documents at the Commission's public reference room at 100 F Street, N.E., Washington, D.C. 20549, and at the Commission's regional offices at Northeast Regional Office, 233 Broadway, New York, New York 10279 and Midwest Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of this material can also be obtained from the Public Reference Room of the Commission at 100 F Street, N.E., Washington, D.C. 20549 at prescribed rates. Please call the Commission at 1-800-732-0330 for further information about the Public Reference Room. The Commission also maintains an Internet website that contains reports, proxy and information statements and other materials that are filed through the Commission's Electronic Data Gathering, Analysis and Retrieval (EDGAR) System. This website can be accessed at http://www.sec.gov. You can find information we have filed with the Commission by reference to file number 001-05805. In addition, you may inspect our reports, proxy statements and other information at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement we filed with the Commission. This prospectus omits some information contained in the registration statement in accordance with Commission rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the Commission are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.
The Commission allows us to incorporate by reference much of the information we file with them, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the Commission, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the Commission filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below and any future filings we make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we complete our offering of the securities to be issued under the registration statement or, if later, the date on which any of our affiliates cease offering and selling these securities:
(a) our Annual Report on Form 10-K for the year ended December 31, 2004 (filed on March 2, 2005 and amended on June 28, 2005);
(b) our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005 (filed on May 5, 2005), June 30, 2005 (filed on August 8, 2005) and September 30, 2005 (filed on November 9, 2005); and
(c) our Current Reports on Form 8-K filed on March 1, 2004, May 14, 2004, July 30, 2004, August 13, 2004, January 7, 2005, January 11, 2005, January 19, 2005 (three reports filed, including an amendment to the Form 8-K filed on October 1, 2004), February 1, 2005, February 28, 2005, March 1, 2005 (three reports filed), March 16, 2005 (two reports filed), March 17, 2005, March 21, 2005, March 23, 2005, April 11, 2005, April 20, 2005 (four reports filed, including an amendment to the Form 8-K filed on October 1, 2004), April 27, 2005 (two reports filed), May 4, 2005 (two reports filed), May 6, 2005, May 9, 2005, May 20, 2005 (three reports filed), May 26, 2005, June 1, 2005, June 2, 2005, June 7, 2005, June 9, 2005, June 13, 2005, June 15, 2005, July 6, 2005, July 14, 2005, July 20, 2005 (three reports filed, including an amendment to the Form 8-K filed on October 1, 2004), August 3, 2005 (two reports filed), August 5, 2005, August 8, 2005, August 12, 2005, September 2, 2005, September 8, 2005 (two reports filed), September
20, 2005, October 4, 2005, October 5, 2005 (two reports filed), October 11, 2005, October 14, 2005, October 18, 2005, October 19, 2005 pursuant to Items 5.02 and 9.01, October 19, 2005 pursuant to Items 2.02 and 9.01 (Exhibit 12.1 only), October 24, 2005 (two reports filed), November 3, 2005 (two reports filed), November 4, 2005 (three reports filed), November 8, 2005 (five reports filed), November 9, 2005, November 14, 2005, November 17, 2005 and November 23, 2005 (other than, in each case, those documents or the portions of those documents not deemed to be filed).
You may request, at no cost to you, a copy of these documents (other than exhibits to such documents) by writing or telephoning us at: Office of the Secretary, JPMorgan Chase & Co., 270 Park Avenue, New York, New York 10017-2070 (Telephone: (212) 270-4040).
JPMORGAN CHASE & CO.
We are a financial holding company incorporated under Delaware law in 1968. We are a leading global financial services firm and one of the largest banking institutions in the United States, with approximately $1.2 trillion in assets, $106 billion in stockholders' equity and operations in more than 50 countries. We are a leader in investment banking, financial services for consumers and businesses, financial transaction processing, asset and wealth management and private equity. Under the JPMorgan, Chase and Bank One brands, we serve millions of customers in the United States and many of the world's most prominent corporate, institutional and government clients.
Our principal bank subsidiaries are JPMorgan Chase Bank, National Association, a national banking association with branches in 17 states, and Chase Bank USA, National Association, a national bank headquartered in Delaware that is our credit card issuing bank. JPMorgan Chase's principal nonbank subsidiary is J.P. Morgan Securities Inc., our U.S. investment banking firm.
The headquarters for JPMorgan Chase is in New York City. The retail banking business, which includes the consumer banking, small business banking and consumer lending activities (with the exception of our credit card business), is headquartered in Chicago. Chicago also serves as the headquarters for the commercial banking business.
Our activities are organized, for management reporting purposes, into six business segments as well as Corporate. Our wholesale businesses are composed of the Investment Bank, Commercial Banking, Treasury & Securities Services, and Asset & Wealth Management. Our consumer businesses are composed of Retail Financial Services and Card Services. A description of our business segments, and the products and services they provide to their respective client bases, follows:
Investment Bank
The Investment Bank is one of the world's leading investment banks, as evidenced by the breadth of its client relationships and product capabilities. The Investment Bank has extensive relationships with corporations, financial institutions, governments and institutional investors worldwide. The Investment Bank provides a full range of investment banking products and services in all major capital markets, including advising on corporate strategy and structure, capital raising in equity and debt markets, sophisticated risk management, and market-making in cash securities and derivative instruments. The Investment Bank also commits JPMorgan Chase's own capital to proprietary investing and trading activities.
Retail Financial Services
Retail Financial Services includes Home Finance, Consumer & Small Business Banking, Auto & Education Finance and Insurance. Through this group of businesses, Retail Financial Services provides consumers and small businesses with a broad range of financial products and services including deposits, investments, loans and insurance. Home Finance is a leading provider of consumer real estate loan products and is one of the largest originators and servicers of home mortgages. Consumer & Small Business Banking offers one of the largest branch networks in the United States. As of September 30, 2005, Auto & Education Finance was the largest bank originator of automobile loans as well as a top provider of loans for college students. Through its Insurance operations, Retail Financial Services sells and underwrites an extensive range of financial protection products and investment alternatives, including life insurance, annuities and debt protection products.
Card Services
As of September 30, 2005, Card Services was one of the largest issuers of general purpose credit cards in the United States and one of the largest merchant acquirers. Card Services offers a wide variety of products to satisfy the needs of its cardmembers, including cards issued on behalf of many well-known partners, such as major airlines, hotels, universities, retailers and other financial institutions.
Commercial Banking
Commercial Banking serves a variety of clients including corporations, municipalities, financial institutions and not-for-profit entities. A local market presence and a strong customer service model, coupled with a focus on risk management, provide a solid infrastructure for Commercial Banking to provide JPMorgan Chase's complete product set--lending, treasury services, investment banking and investment management. Commercial Banking clients benefit from JPMorgan Chase's retail branch network and commercial banking offices, including locations in many of the top major metropolitan areas in the U.S.
Treasury & Securities Services
Treasury & Securities Services is a global leader in providing transaction, investment and information services to support the needs of corporations, issuers and institutional investors worldwide. Treasury & Securities Services is the largest cash management provider in the world and a leading global custodian. The Treasury Services business provides clients with a broad range of capabilities, including U.S. dollar and multi-currency clearing, Automated Clearing House (ACH) transfers, trade, and short-term liquidity and working capital tools. The Investor Services business provides a wide range of capabilities, including custody, funds services, securities lending, and performance measurement and execution products. The Institutional Trust Services business provides trustee, depository and administrative services for debt and equity issuers. Treasury Services partners with the Commercial Banking, Consumer & Small Business Banking and Asset & Wealth Management businesses to serve clients firmwide. As a result, certain Treasury Services revenues are included in other segments' results. Treasury & Securities Services has combined the management of the Investor Services and Institutional Trust Services businesses under the name Worldwide Securities Services to create an integrated franchise which will provide custody and investor services as well as securities clearance and trust services to clients globally.
Asset & Wealth Management
Asset & Wealth Management provides investment management to retail and institutional investors, financial intermediaries and high-net-worth families and individuals globally. For retail investors, Asset & Wealth Management provides investment management products and services, including a global mutual fund franchise, retirement plan administration and brokerage services. Asset & Wealth Management delivers investment management to institutional investors across all asset classes. The Private Bank and Private Client Services businesses provide integrated wealth management services to ultra-high-net-worth and high-net-worth clients, respectively.
Corporate
The Corporate Sector is composed of Private Equity, Treasury and corporate staff and other centrally managed expenses. Private Equity currently includes JPMorgan Partners and ONE Equity Partners businesses. On March 1, 2005, we announced that the management team of JPMorgan Partners LLC, a private equity unit of JPMorgan Chase, will become independent when it completes the investment of the current $6.5 billion Global Fund, which it advises. The independent management team intends to raise a new fund as a successor to the Global Fund. JPMorgan Chase has committed to invest 24.9% of the limited partnership interests, up to $1 billion, in the new fund. Treasury manages the structural interest rate risk and investment portfolio for JPMorgan Chase. The corporate staff areas include Central Technology and Operations, Internal Audit, Executive Office, Finance, General Services, Human Resources, Marketing & Communications, Office of the General Counsel, Real Estate and Business Services, Risk Management, and Strategy and Development. JPMorgan Chase's centrally managed expenses include items such as its occupancy and pension expense, net of allocations to the business.
Our principal executive office is located at 270 Park Avenue, New York, New York 10017 and our telephone number is (212) 270-6000.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Nine
Months
Ended
September Year Ended December 31,
30, --------------------------------
2005 2004 2003 2002 2001 2000
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Excluding Interest on Deposits ....... 1.75 1.65 2.27 1.28 1.18 1.52
Including Interest on Deposits ....... 1.46 1.44 1.87 1.17 1.11 1.31
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For purposes of computing the above ratios, earnings represent net income from continuing operations plus total taxes based on income and fixed charges. Fixed charges, excluding interest on deposits, include interest expense (other than on deposits), one-third (the proportion deemed representative of the interest factor) of rents, net of income from subleases, and capitalized interest. Fixed charges, including interest on deposits, include all interest expense, one-third (the proportion deemed representative of the interest factor) of rents, net of income from subleases, and capitalized interest.
USE OF PROCEEDS
We will use the net proceeds we receive from the sale of the securities offered by this prospectus and the accompanying prospectus supplement for general corporate purposes, in connection with hedging our obligations under the securities, or for any other purpose described in the applicable prospectus supplement. General corporate purposes may include additions to working capital, repayment of debt, investments in or extensions of credit to our subsidiaries, or redemptions or repurchases of our stock. We may temporarily invest the net proceeds or use them to repay short term debt until they are used for their stated purpose.
DESCRIPTION OF DEBT SECURITIES
General
The following description of the terms of the debt securities contains certain general terms that may apply to the debt securities. The specific terms of any debt securities will be described in one or more prospectus supplements relating to those debt securities.
The debt securities will be issued under an Indenture dated May 25, 2001, between us and Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), as trustee. We refer to the Indenture, as may be supplemented from time to time, as the "Indenture."
We have summarized below the material provisions of the Indenture and the debt securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries, and each investor should refer to the Indenture, which describes completely the terms and definitions summarized below and contains additional information regarding the debt securities. Where appropriate, we use parentheses to refer you to the particular sections of the Indenture. Any reference to particular sections or defined terms of the Indenture in any statement under this heading qualifies the entire statement and incorporates by reference the applicable section or definition into that statement.
The debt securities will be our direct, unsecured general obligations. The debt securities will have the same rank in liquidation as all of our other unsecured and unsubordinated debt.
The Indenture does not limit the amount of debt securities that we may issue. The Indenture provides that debt securities may be issued up to the principal amount authorized by us from time to time (Section 2.03 of the Indenture). The Indenture allows us to reopen a previous issue of a series of debt securities and issue additional debt securities of that issue.
We are a holding company and conduct substantially all of our operations through subsidiaries. As a result, claims of holders of the debt securities will generally have a junior position to claims of creditors of our subsidiaries, except to the extent that we may be recognized as a creditor of those subsidiaries. In addition, our right to participate as a shareholder in any distribution of assets of any subsidiary (and thus the ability of holders of the debt securities to benefit as creditors of the Company from such distribution) is junior to creditors of that subsidiary. Claims of creditors of our subsidiaries include:
o substantial amounts of long term debt;
o deposit liabilities;
o federal funds purchased;
o securities sold under repurchase agreements; and
o short term borrowings.
In addition, various statutes and regulations restrict some of our subsidiaries from paying dividends or making loans or advances to us. These restrictions could prevent those subsidiaries from paying the cash to us that we need in order to pay you. These restrictions include:
o the net capital requirements under the Securities Exchange Act of 1934, as amended, and the rules of some exchanges and other regulatory bodies, which apply to J.P. Morgan Securities Inc. and other broker-dealer affiliates, and
o banking regulations, which apply to JPMorgan Chase Bank, National Association, Chase Manhattan Bank USA, National Association and other of our banking subsidiaries.
We may issue debt securities from time to time in one or more series. (Section 2.03 of the Indenture) The debt securities may be denominated and payable in U.S. dollars or foreign currencies. (Section 2.03 of the Indenture) We may also issue debt securities, from time to time, with the principal amount, interest or other amounts payable on any relevant payment date to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices, indices or any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance. In addition, we may issue debt securities as part of units issued by us, as described in "--Description of Units" below. All references in this prospectus, or any prospectus supplement to other amounts will include premium, if any, other cash amounts payable under the Indenture, and the delivery of securities or baskets of securities under the terms of the debt securities.
Debt securities may bear interest at a fixed rate, which may be zero, or a floating rate.
The prospectus supplement relating to the particular series of debt securities being offered will specify the particular terms of, and other information relating to, those debt securities. These terms may include:
o the specific designation;
o any limit on the aggregate principal amount and authorized denominations of the debt securities;
o the purchase price of the debt securities (expressed as a percentage of the principal amount thereof);
o the date or dates on which the principal of the debt securities will be payable;
o the interest rate or rates (including any interest rates applicable to overdue payments) on the debt securities, if any, or the method by which the calculation agent will determine those rates;
o if other than U.S. dollars, the currency or currencies (including composite currencies or currency units) in which the debt securities may be purchased and in which payments on the debt securities will be made (which currencies may be different for payments of principal, premium, if any, and/or interest, if any);
o the dates on which any interest or other amounts will be payable, if any;
o any repayment, amortization, redemption, prepayment or sinking fund provisions, including any redemption notice provisions;
o information as to the methods for determining the amount of principal, interest or other amounts payable on any date and/or any currencies, currency units, composite currencies, commodity prices, securities, baskets of securities, indices, baskets of indices, interest rates, swap rates, baskets of swap rates or any other factors or other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance, to which the amount payable with respect to the principal, interest or other amounts, if any, of the debt securities on that date will be linked;
o any conversion or exchange provision relating to the conversion or exchange of the debt securities into or for securities of another entity;
o the terms on which holders of the debt securities may convert or exchange these securities into or for stock or other securities issued by another entity, any specific terms relating to the adjustment of the conversion or exchange feature and the period during which the holders may make the conversion or exchange;
o whether we will issue the debt securities in registered form or bearer form or both and, if we are offering debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those debt securities in bearer form;
o the place or places for payment of the principal amount, interest or other amounts on the debt securities;
o whether we will issue the debt securities in definitive form and under what terms and conditions;
o any agents for the debt securities, including trustees, depositaries, authenticating or paying agents, transfer agents or registrars;
o any applicable United States federal income tax consequences, including, but not limited to:
o whether and under what circumstances we will pay additional amounts on debt securities held by a person who is not a U.S. person for any tax, assessment or governmental charge withheld or deducted and, if so, whether we will have the option to redeem those debt securities in order to avoid the obligation to pay future additional amounts; and
o tax considerations applicable to any debt securities denominated and payable in foreign currencies; and
o any other specific terms of the debt securities, including any additional events of default or covenants, and any terms required by or advisable under applicable laws or regulations.
Some of the debt securities may be issued as original issue discount debt securities (the "Original Issue Discount Securities"). Original Issue Discount Securities bear no interest or bear interest at below market rates and will be sold at a discount below their stated principal amount. The prospectus supplement relating to an issue of Original Issue Discount Securities will contain information relating to United States federal income tax, accounting, and other special considerations applicable to Original Issue Discount Securities.
Holders may present debt securities for exchange or transfer, in the manner, at the places and subject to the restrictions stated in the debt securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations provided in the Indenture. (Section 2.08 of the Indenture)
Holders may transfer debt securities in definitive bearer form and the related coupons, if any, by delivery to the transferee. If any of the securities are held in global form, the procedures for transfer of interests in those securities will depend upon the procedures of the depositary for those global securities. See "Forms of Securities."
We will generally have no obligation to repurchase, redeem, or change the terms of debt securities upon any event (including a change in control) that might have an adverse effect on our credit quality.
Events of Default, Waiver, Debt Securities in Foreign Currencies
An "Event of Default" with respect to a series of debt securities is defined in the Indenture as:
o default for 30 days in the payment of interest on any debt securities of that series;
o default in payment of principal or other amounts payable on any debt securities of that series when due, at maturity, upon redemption, by declaration, or otherwise;
o failure by us for 90 days after notice to perform any other covenants or warranties contained in the Indenture applicable to that series;
o certain events of bankruptcy or reorganization of the Company; and
o any other event of default provided in the applicable supplemental indentures or form of security. (Section 5.01 of the Indenture)
If a default in the payment of principal, interest or other amounts payable on the debt securities, or in the performance of any covenant or agreement, or in a manner provided in the applicable supplemental indenture or form of security, with respect to one or more series of debt securities occurs and is continuing, either the trustee or the holders of at least 25% in principal amount of the debt securities of such series then outstanding, treated as one class, may declare the principal of all outstanding debt securities of such series and any interest accrued thereon, to be due and payable immediately. In the case of Original Issue Discount Securities, only a specified portion of the principal amount may be accelerated. If a default in the performance of any covenant or agreement with respect to all series of debt securities, or due to specified events of bankruptcy or insolvency of the Company, occurs and is continuing, either the trustee or the holders of at least 25% in principal amount of all debt securities then outstanding, voting as a single class, may declare the principal of all outstanding debt securities and any interest accrued thereon, to be due and payable immediately. In the case of Original Issue Discount Securities, only a specified portion of the principal amount may be accelerated. Subject to certain conditions such declarations may be annulled and past defaults, except for uncured payment defaults on the debt securities, may be waived by the holders of a majority in principal amount of the outstanding debt securities of the series affected. (Sections 5.01 and 5.10 of the Indenture)
An Event of Default with respect to one series of debt securities does not necessarily constitute an Event of Default with respect to any other series of debt securities. The Indenture provides that the trustee may withhold notice to the holders of the debt securities of any default if the trustee considers it in the interest of the holders of the debt securities to do so. The trustee may not withhold notice of a default in the payment of principal of, interest on or any other amounts due under, such debt securities. (Section 5.11 of the Indenture)
The Indenture provides that the holders of a majority in principal amount of outstanding debt securities of any series may direct the time, method, and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or other power conferred on the trustee. The trustee may decline to act if the direction is contrary to law and in certain other circumstances set forth in the Indenture. (Section 5.09 of the Indenture) The trustee is not obligated to exercise any of its rights or powers under the Indenture at the request or direction of the holders of debt securities unless the holders offer the trustee reasonable indemnity against expenses and liabilities. (Section 6.02(d) of the Indenture)
No holder of any debt security of any series has the right to institute any action for remedy unless such holder has previously given to the trustee written notice of default and the trustee has failed to take action for 60 days after the holders of not less than 25% in principal amount of the debt securities of such series make written request upon the trustee to institute such action. (Section 5.06 of the Indenture)
The Indenture requires us to file annually with the trustee a written statement of no default, or specifying any default that exists. (Section 3.05 of the Indenture)
Whenever the Indenture provides for an action by, or the determination of any of the rights of, or any distribution to, holders of debt securities, in the absence of any provision to the contrary in the form of debt security, any amount in respect of any debt security denominated in a currency or currency unit other than U.S. dollars may be treated for any such action or distribution as the amount of U.S. dollars that could reasonably be exchanged for such non U.S. dollar amount. This amount will be calculated as of a date that we specify to the trustee or, if we fail to specify a date, on a date that the trustee may determine. (Section 11.11 of the Indenture)
Discharge, Defeasance and Covenant Defeasance
Discharge of Indenture. The Indenture will cease to be of further effect with respect to debt securities of any series, except as to rights of registration of transfer and exchange, substitution of mutilated or defaced debt securities, rights of holders to receive principal, interest or other amounts payable under the debt securities, rights and immunities of the trustee and rights of holders with respect to property deposited pursuant to the following provisions, if at any time:
o the Company has paid the principal, interest or other amounts payable under the debt securities of such series;
o the Company has delivered to the trustee for cancellation all debt securities of such series; or
o the debt securities of such series not delivered to the trustee for cancellation have become due and payable, or will become due and payable within one year, or are to be called for redemption within one year under arrangements satisfactory to the trustee, and the Company has irrevocably deposited with the trustee as trust funds the entire amount in cash or U.S. government obligations sufficient to pay all amounts due with respect to such debt securities on or after the date of such deposit, including at maturity or upon redemption of all such debt securities, including principal, interest and other amounts. (Section 10.01 of the Indenture)
The trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Company, will execute proper instruments acknowledging such satisfaction of and discharging the Indenture with respect to such series.
Defeasance of a Series of Securities at Any Time. We may also discharge all of our obligations, other than as to transfers and exchanges, under any series of debt securities at any time, which we refer to as "defeasance".
We may be released with respect to any outstanding series of debt securities from the obligations imposed by Article 9 of the Indenture, which contains the covenant described below limiting consolidations, mergers and asset sales, and elect not to comply with that provision without creating an event of default. Discharge under these procedures is called "covenant defeasance".
Defeasance or covenant defeasance may be effected only if, among other things:
o we irrevocably deposit with the trustee cash or, in the case of debt securities payable only in U.S. dollars, U.S. government obligations, as trust funds in an amount certified to be sufficient to pay on each date that they become due and payable, the principal of, interest on, other amounts due under, and any mandatory sinking fund payments for, all outstanding debt securities of the series being defeased;
o we deliver to the trustee an opinion of counsel to the effect that:
o the beneficial owners of the series of debt securities being defeased will not recognize income, gain or loss for United States federal income tax purposes as a result of the defeasance or covenant defeasance; and
o the defeasance or covenant defeasance will not otherwise alter those beneficial owners' United States federal income tax treatment of principal or interest payments or other amounts due under the series of debt securities being defeased;
o in the case of a defeasance, this opinion must be based on a ruling of the Internal Revenue Service or a change in United States federal income tax law occurring after the date of this prospectus, since that result would not occur under current tax law; and
o such defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which we are a party or by which we are bound. (Section 10.01 of the Indenture)
Modification of the Indenture; Waiver of Compliance
The Indenture contains provisions permitting us and the trustee to modify the Indenture or the rights of the holders of debt securities with the consent of the holders of not less than a majority in principal amount of each outstanding series of debt securities affected by the modification. Each holder of an affected debt security must consent to a modification that would:
o change the stated maturity date of the principal of, or of any installment of principal of or interest on, any debt security;
o reduce the principal amount of, interest on, or any other amounts due under any debt security;
o change the currency or currency unit of payment of any debt security;
o change the method in which amounts of payments of principal, interest or other amounts are determined on any debt security;
o reduce the portion of the principal amount of an Original Issue Discount Security payable upon acceleration of the maturity thereof;
o reduce any amount payable upon redemption of any debt security;
o impair the right of a holder to institute suit for the payment of or, if the debt securities provide, any right of repayment at the option of the holder of a debt security; or
o reduce the percentage of debt securities of any series, the consent of the holders of which is required for any modification. (Section 8.02 of the Indenture)
The Indenture also permits us and the trustee to amend the Indenture in certain circumstances without the consent of the holders of debt securities to evidence our merger, the replacement of the trustee, to effect changes which do not affect any outstanding series of debt security, and for certain other purposes. (Section 8.01 of the Indenture)
Consolidations, Mergers and Sales of Assets
We may not merge or consolidate with any other corporation or sell or convey all or substantially all of our assets to any other corporation, unless either:
o we are the continuing corporation or the successor corporation is a United States corporation which expressly assumes the payment of the principal of, any interest on, or any other amounts due under the debt securities and the performance and observance of all the covenants and conditions of the Indenture binding upon us, and
o we or the successor corporation shall not, immediately after the merger or consolidation, sale or conveyance, be in default in the performance of any covenant or condition. (Article 9 of the Indenture)
There are no covenants or other provisions in the Indenture that would afford holders of debt securities additional protection in the event of a recapitalization transaction, a change of control of JPMorgan Chase & Co. or a highly leveraged transaction. The merger covenant described above would only apply if the recapitalization transaction, change of control or highly leveraged transaction were structured to include a merger or consolidation of JPMorgan Chase & Co. or a sale or conveyance of all or substantially all of our assets. However, we may provide specific protections, such as a put right or
increased interest, for particular debt securities, which we would describe in the applicable prospectus supplement.
Concerning the Trustee, Paying Agent, Registrar and Transfer Agent
Our subsidiaries and we have normal banking relationships with the trustee, Deutsche Bank Trust Company Americas. Deutsche Bank Trust Company Americas will also be the paying agent, registrar and transfer agent for the debt securities.
Governing Law and Judgments
The debt securities will be governed by and interpreted under the laws of the State of New York. (Section 11.8 of the Indenture) In an action involving debt securities denominated in a currency other than U.S. dollars, it is likely that any judgment granted by a U.S. court would be made only in U.S. dollars. However, a New York court should enter a judgment in the denominated currency. Such judgment should then be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment.
DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants, index warrants, currency warrants, interest rate warrants or universal warrants. We may offer warrants separately or together with one or more additional warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us, other property or any combination of those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants' expiration date. Universal warrants issued in the United States may not be so separated prior to the 91st day after the issuance of the unit, unless otherwise specified in the applicable prospectus supplement.
Debt Warrants. We may issue, together with debt securities or separately, warrants for the purchase of debt securities on terms to be determined at the time of sale. We refer to this type of warrant as a "debt warrant".
Index Warrants. We may issue warrants entitling the holders thereof to receive from us, upon exercise, an amount in cash determined by reference to decreases or increases in the level of a specific index or in the levels (or relative levels) of two or more indices or combinations of indices, which index or indices may be based on one or more stocks, bonds or other securities, one or more interest rates, one or more currencies or currency units, or any combination of the foregoing. We refer to this type of warrant as an "index warrant".
Currency Warrants. We may also issue warrants entitling the holders thereof to receive from us, upon exercise, an amount in cash determined by reference to the right to purchase or the right to sell a specified amount or specified amounts of one or more currencies or currency units or any combination of the foregoing for a specified amount or specified amounts of one or more different currencies or currency units or any combination of the foregoing. We refer to this type of warrant as a "currency warrant".
Interest Rate Warrants. We may issue warrants entitling the holders thereof to receive from us, upon exercise, an amount in cash determined by reference to decreases or increases in the yield or closing price of one or more specified debt instruments or in the interest rates, interest rate swap rates, or other rates established from time to time by one or more specified financial institutions, or any combination of the foregoing. We refer to this type of warrant as an "interest rate warrant".
Universal Warrants. We may also issue warrants:
o to purchase or sell securities issued by us or another entity, securities based on the performance of such entity, securities based on the performance of such entity but excluding the performance of a particular subsidiary or subsidiaries of such entity, a basket of securities, any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance, or any combination of the above;
o to purchase or sell commodities; or
o in such other form as shall be specified in the applicable prospectus supplement.
We refer to the property in the above clauses as "warrant property." We refer to this type of warrant as a "universal warrant." We may satisfy our obligations, if any, with respect to any universal warrants by delivering the warrant property or, in the case of warrants to purchase or sell securities or commodities, the cash value of the securities or commodities, as described in the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
o the specific designation and aggregate number of, and the price at which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any debt security included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars, determination, or other agents;
o the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
o whether the warrants are to be sold separately or with other securities or property as part of units; and
o any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain, where applicable, the following terms of and other terms and information relating to any debt warrants:
o the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the debt warrants;
o if applicable, the designation and terms of the debt securities with which the debt warrants are issued and the number of the debt warrants issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of each debt warrant, the price at which and the currency in which the debt securities may be purchased and the method of exercise.
Additional Terms of Index, Currency and Interest Rate Warrants. The applicable prospectus supplement will contain, where applicable, the following terms of and other terms and information relating to any index, currency and interest rate warrants:
o the exercise price, if any;
o the currency or currency unit in which the exercise price, if any, and the cash settlement value of such warrants is payable;
o the index or indices for any index warrants, which index or indices may be based on one or more U.S. or foreign stocks, bonds, or other securities, one or more U.S. or foreign interest rates, one
or more currencies or currency units, or any combination of the foregoing, and may be a preexisting U.S. or foreign index or an index based on one or more securities, interest rates or currencies selected by us solely in connection with the issuance of such index warrants, and certain information regarding such index or indices and the underlying securities, interest rates or currencies (including, to the extent possible, the policies of the publisher of the index with respect to additions, deletions and substitutions of such securities, interest rates or currencies);
o for index warrants, the method of providing for a substitute index or indices or otherwise determining the amount payable in connection with the exercise of such index warrants if the index changes or ceases to be made available by the publisher of the index;
o for index warrants, any provisions permitting a holder to condition any exercise notice on the absence of certain specified changes in the Spot Value or the Base Value or Spot Amount (as defined in the applicable prospectus supplement) after the exercise date;
o the base currency and the reference currency for any currency warrants;
o the debt instrument (which may be one or more debt instruments issued either by the United States government or by a foreign government), the rate (which may be one or more interest rates or interest rate swap rates established from time to time by one or more specified financial institutions) or the other yield or price utilized for any interest rate warrants, and certain information regarding such debt instrument, rate, yield or price;
o the strike amount, the method of determining the spot amount and the method of expressing movements in the yield or closing price of the debt instrument or in the level of the rate as a cash amount in the currency in which the interest rate cash settlement value of any interest rate warrants is payable;
o whether such warrants shall be put warrants, call warrants or otherwise;
o the formula for determining the cash settlement value of each warrant;
o the circumstances, if any, under which a minimum and/or maximum expiration value is applicable upon the expiration of such warrants;
o the effect or effects, if any, of the occurrence of an Exercise Limitation Event or Extraordinary Event (as defined in the applicable prospectus supplement) and the circumstances that constitute such events;
o any minimum number of warrants which must be exercised at any one time, other than upon automatic exercise;
o the maximum number, if any, of such warrants that may, subject to our election, be exercised by all holders on any day;
o any provisions for the automatic exercise of such warrants other than at expiration;
o whether and under what circumstances such warrants may be canceled by us prior to the expiration date; and
o any other procedures and conditions relating to the exercise of such warrants.
Additional Terms of Universal Warrants. The applicable prospectus supplement will contain, where applicable, the following terms of and other terms and information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for determining the amount of the warrant property, that may be purchased or sold upon exercise of each universal warrant;
o the price at which and the currency with which the underlying securities or commodities may be purchased or sold upon the exercise of each universal warrant, or the method of determining that price;
o whether the exercise price may be paid in cash, by the exchange of any other security offered with the universal warrants or both and the method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in cash or by delivery of the underlying securities or commodities or both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be entered into between us and a bank or trust company, as warrant agent, in one or more series, which will be described in the prospectus supplement for the warrants. The forms of warrant agreements are filed as exhibits to the registration statement. The following summaries of significant provisions of the warrant agreements and the warrants are not intended to be comprehensive and holders of warrants should review the detailed provisions of the relevant warrant agreement for a full description and for other information regarding the warrants.
Modifications without Consent of Warrantholders. We and the warrant agent may amend the terms of the warrants and the warrant certificates without the consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision, or
o amend the terms in any other manner which we may deem necessary or desirable and which will not adversely affect the interests of the affected holders in any material respect.
Modifications with Consent of Warrantholders. We and the warrant agent, with the consent of the holders of not less than a majority in number of the then outstanding unexercised warrants affected, may modify or amend the warrant agreement. However, we and the warrant agent may not, without the consent of each affected warrantholder:
o change the exercise price of the warrants;
o reduce the amount receivable upon exercise, cancellation or expiration of the warrants other than in accordance with the antidilution provisions or other similar adjustment provisions included in the terms of the warrants;
o shorten the period of time during which the warrants may be exercised;
o materially and adversely affect the rights of the owners of the warrants; or
o reduce the percentage of outstanding warrants the consent of whose owners is required for the modification of the applicable warrant agreement.
Merger, Consolidation, Sale or Other Disposition. If at any time there will be a merger or consolidation by us or a transfer of substantially all of our assets, the successor corporation will succeed to and assume all of our obligations under each warrant agreement and the warrant certificates. We will then be relieved of any further obligation under each of those warrant agreements and the warrants issued under those warrant agreements. See "Description of Debt Securities--Consolidations, Mergers and Sales of Assets."
Enforceability of Rights of Warrantholders. The warrant agents will act solely as our agents in connection with the warrant certificates and will not assume any obligation or relationship of agency or trust for or with any holders of warrant certificates or beneficial owners of warrants. Any holder of warrant certificates and any beneficial owner of warrants may, without the consent of any other person, enforce by appropriate legal action, on its own behalf, its right to exercise the warrants evidenced by the warrant certificates in the manner provided for in that series of warrants or pursuant to the applicable warrant agreement. No holder of any warrant certificate or beneficial owner of any warrants will be entitled to any of the rights of a holder of the debt securities or any other warrant property that may be purchased upon exercise of the warrants, including, without limitation, the right to receive the payments on those debt securities or other warrant property or to enforce any of the covenants or rights in the relevant indenture or any other similar agreement.
Registration and Transfer of Warrants. Subject to the terms of the applicable warrant agreement, warrants in definitive form may be presented for exchange and for registration of transfer, at the corporate trust office of the warrant agent for that series of warrants, or at any other office indicated in the prospectus supplement relating to that series of warrants, without service charge. However, the holder will be required to pay any taxes and other governmental charges as described in the warrant agreement. The transfer or exchange will be effected only if the warrant agent for the series of warrants is satisfied with the documents of title and identity of the person making the request.
New York Law to Govern. The warrants and each warrant agreement will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF UNITS
General
Units will consist of any combination of warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or any other property. The applicable prospectus supplement will also describe:
o the designation and the terms of the units and of any combination of warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or other property constituting the units, including whether and under what circumstances the warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or other property may be traded separately or as other kinds of units and, if purchase contracts are included in the units, whether holders of the units will be required to pledge any items to secure performance under the purchase contracts, as described in "--Description of Purchase Contracts--Purchase Contracts Issued as
Part of Units--Pledge by Purchase Contract Holders to Secure
Performance" below;
o any additional terms of the applicable unit agreement;
o any additional provisions for the issuance, payment, settlement, transfer or exchange of the units or of the warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or other property constituting the units; and
o any applicable United States federal income tax consequences.
The terms and conditions described under "--Description of Debt Securities," "--Description of Warrants," "--Description of Purchase Contracts," and those described below under "--Significant Provisions of the Unit Agreement" will apply to each unit and to any warrants, purchase contracts, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or other property included in each unit, respectively, unless otherwise specified in the applicable prospectus supplement.
We will issue the units under one or more unit agreements, each referred to as a unit agreement, to be entered into between us and a bank or trust company, as unit agent. We may issue units in one or more series, which will be described in the applicable prospectus supplement.
Significant Provisions of the Unit Agreement
Remedies. The unit agent will act solely as our agent in connection with the units governed by the unit agreement and will not assume any obligation or relationship of agency or trust for or with any holders of units or interests in those units. Any holder of units or interests in those units may, without the consent of the unit agent or any other holder or beneficial owner of units, enforce by appropriate legal action, on its own behalf, its rights under the unit agreement. However, the holders of units or interests in those units may only enforce their rights under the debt securities or warrants issued as parts of those units in accordance with the terms of the Indenture and the applicable warrant agreement.
Obligations of Unit Holder. Under the terms of the unit agreement, each owner of a unit:
o consents to and agrees to be bound by the terms of the unit agreement;
o appoints the unit agent as its authorized agent to execute, deliver and perform any purchase contract included in the unit in which that owner has an interest and to otherwise deal with that owner's property included in the unit; and
o irrevocably agrees to be a party to and be bound by the terms of any purchase contract included in the unit in which that owner has an interest.
Assumption of Obligations by Transferee. Upon the registration of transfer of a unit, the transferee will assume the obligations, if any, of the transferor under any purchase contract included in the unit and under any other security constituting that unit, and the transferor will be released from those obligations. Under the unit agreement, we consent to the transfer of these obligations to the transferee, to the assumption of these obligations by the transferee and to the release of the transferor, if the transfer is made in accordance with the provisions of the unit agreement.
Limitation on Actions by You as an Individual Holder. No owner of any unit will have any right under the unit agreement to institute any action or proceeding at law or in equity or in bankruptcy or otherwise regarding the unit agreement, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official, unless the owner will have given written notice to the unit agent and to us of the occurrence and continuance of a default thereunder and:
o in the case of an event of default under any debt securities included in the units or the relevant indenture, unless the procedures, including notice to us and the trustee, described in such indenture have been complied with; and
o in the case of a failure by us to observe or perform any of our obligations under the unit agreement relating to any purchase contracts, unless:
o owners of not less than 25% of the affected purchase contracts have (a) requested the unit agent to institute that action or proceeding in its own name as unit agent under the unit agreement and (b) offered the unit agent reasonable indemnity;
o the unit agent has failed to institute that action or proceeding within 60 days of that request by the owners referred to above; and
o the owners of a majority of the outstanding affected units have not given directions to the unit agent inconsistent with those of the owners referred to above.
If these conditions have been satisfied, any owner of an affected unit may then, but only then, institute an action or proceeding. Notwithstanding the above, the owner of any unit or purchase contract will have the unconditional right to purchase or sell, as the case may be, purchase contract property under the purchase contract and to institute suit for the enforcement of that right and to exercise such rights with respect to that owner's property included in the unit as are specified in the prospectus supplement. Purchase contract property is defined under "--Description of Purchase Contracts" below.
Modification Without Consent of Holders. We and the unit agent may amend or supplement the unit agreement and the terms of the purchase contracts and the purchase contract certificates without the consent of the holders to:
o evidence the assumption by a successor of our covenants;
o evidence the acceptance of appointment by a successor agent or collateral agent;
o add covenants for the protection of the holders of the units;
o comply with the Securities Act of 1933, as amended, the Securities Exchange Act of 1934 or the Investment Company Act of 1940, as amended, or any other relevant laws;
o cure any ambiguity; to correct or supplement any defective or inconsistent provision; or
o amend the terms in any other manner which we may deem necessary or desirable and which will not adversely affect the interests of the affected holders of units in any material respect.
Modification with Consent of Holders. We and the unit agent, with the consent of the holders of not less than a majority of all series of outstanding units affected may modify or amend the rights of the holders of the units of each series so affected or the terms of any purchase contracts included in any of those series of units and the terms of the unit agreement relating to the purchase contracts of each series so affected. However, we and the unit agent may not make the following first three modifications without the consent of the holder of each outstanding purchase contract included in units and may not make the following last two modifications without the consent of the holder of each outstanding unit affected by the modification that:
o impair the right to institute suit for the enforcement of any purchase contract;
o materially and adversely affect the holders' rights and obligations under any purchase contract;
o reduce the percentage of purchase contracts constituting part of outstanding units the consent of whose owners is required for the modification of the provisions of the unit agreement relating to those purchase contracts or for the waiver of any defaults under the unit agreement relating to those purchase contracts;
o materially and adversely affect the holders' units or the terms of the unit agreement (other than terms related to the first three clauses above); or
o reduce the percentage of outstanding units the consent of whose owners is required to consent to a modification or amendment of the unit agreement (other than the terms related to the first three clauses above).
Modifications of any debt securities issued pursuant to an indenture included in units may only be made in accordance with the applicable indenture, as described under "--Description of Debt Securities--Modification of the Indenture; Waiver of Compliance." Modifications of any warrants included in units may only be made in accordance with the terms of the applicable warrant agreement as described under "--Description of Warrants--Significant Provisions of the Warrant Agreement."
Merger, Consolidation, Sale or Conveyance. The unit agreement provides that we will not merge or consolidate with any other person and will not sell or convey all or substantially all of our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially all of our assets:
o will be a corporation organized under the laws of the United States, a state of the United States or the District of Columbia; and
o will expressly assume all of our obligations under the unit agreement; and
o immediately after the merger, consolidation, sale or conveyance, we, that person or that successor corporation will not be in default in the performance of the covenants and conditions of the unit agreement applicable to us.
Replacement of Unit Certificates. We will replace any mutilated certificate evidencing a definitive unit at the expense of the holder upon surrender of that certificate to the unit agent. We will replace certificates that have been destroyed, lost or stolen at the expense of the holder upon delivery to us and the unit agent of evidence satisfactory to us and the unit agent of the destruction, loss or theft of the certificates. In the case of a destroyed, lost or stolen certificate, an indemnity satisfactory to the unit agent and to us may be required at the expense of the holder of the units evidenced by that certificate before a replacement will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their agents will treat the registered owner of any unit as its owner, notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The unit agreement and the units will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as part of a unit with one or more warrants, debt securities issued by us, debt obligations or other securities of an entity affiliated or not affiliated with us or other property, for the purchase or sale of, or settlement in cash based on the value of:
o securities issued by us or by an entity affiliated or not affiliated with us, a basket of those securities, an index or indices of those securities or any combination of the above;
o currencies;
o commodities; or
o other property.
We refer to this property in the above clauses as "purchase contract property."
Each purchase contract will obligate the holder to purchase or sell, and obligate us to sell or purchase, on specified dates, the purchase contract property at a specified price or prices, or cash in lieu of such purchase contract property, all as described in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell the purchase contract property and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms and provisions of a unit agreement. See "--Description of Units--Significant Provisions of the Unit Agreement." The applicable prospectus supplement will specify the following:
o whether the purchase contract obligates the holder to purchase or sell the purchase contract property;
o whether and when a purchase contract issued as part of a unit may be separated from the other securities constituting part of that unit prior to the purchase contract's settlement date;
o the methods by which the holders may purchase or sell the purchase contract property;
o any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract;
o whether the purchase contracts will be issued in fully registered or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a purchase contract included in a unit will correspond to the form of the unit and of any debt security, warrant or other security included in that unit; and
o any applicable United States federal income tax consequences.
Settlement of Purchase Contracts. Where purchase contracts issued together with debt securities or debt obligations as part of a unit require the holders to buy purchase contract property, the unit agent may apply principal payments from the debt securities or debt obligations in satisfaction of the holders obligations under the related purchase contract as specified in the prospectus supplement. The unit agent will not so apply the principal payments if the holder has delivered cash to meet its obligations under the purchase contract. To settle the purchase contract and receive the purchase contract property, the holder must present and surrender the unit certificates at the office of the unit agent. If a holder settles its obligations under a purchase contract that is part of a unit in cash rather than by delivering the debt security or debt obligation that is part of the unit, that debt security or debt obligation will remain
outstanding, if the maturity extends beyond the relevant settlement date and, as more fully described in the applicable prospectus supplement, the holder will receive that debt security or debt obligation or an interest in the relevant global debt security.
Pledge by Purchase Contract Holders to Secure Performance. To secure the obligations of the purchase contract holders contained in the unit agreement and in the purchase contracts, the holders, acting through the unit agent, as their attorney-in-fact, will assign and pledge the items in the following sentence, which we refer to as the "pledge," to JPMorgan Chase Bank, National Association, in its capacity as collateral agent, for our benefit. Except as otherwise described in the applicable prospectus supplement, the pledge is a security interest in, and a lien upon and right of set-off against, all of the holders' right, title and interest in and to:
o all or any portion of the debt securities, debt obligations or other securities that are, or become, part of units that include the purchase contracts, or other property as may be specified in the applicable prospectus supplement, which we refer to as the "pledged items";
o all additions to and substitutions for the pledged items as may be permissible, if so specified in the applicable prospectus supplement;
o all income, proceeds and collections received or to be received, or derived or to be derived, at any time from or in connection with the pledged items described in the two clauses above; and
o all powers and rights owned or thereafter acquired under or with respect to the pledged items.
The pledge constitutes collateral security for the performance when due by each holder of its obligations under the unit agreement and the applicable purchase contract. Except as otherwise described in the applicable prospectus supplement, the collateral agent will forward all payments from the pledged items to us, unless the payments have been released from the pledge in accordance with the unit agreement. If the terms of the unit so provide, we will use the payments received from the pledged items to satisfy the obligations of the holder of the unit under the related purchase contract.
Property Held in Trust by Unit Agent. If a holder fails to settle its obligations under a purchase contract that is part of a unit and fails to present and surrender its unit certificate to the unit agent when required, that holder will not receive the purchase contract property. Instead, the unit agent will hold that holder's purchase contract property, together with any distributions, as the registered owner in trust for the benefit of the holder until the holder presents and surrenders the certificate or provides satisfactory evidence that the certificate has been destroyed, lost or stolen. The unit agent or JPMorgan Chase may require an indemnity from the holder for liabilities related to any destroyed, lost or stolen certificate. If the holder does not present the unit certificate, or provide the necessary evidence of destruction or loss and indemnity, on or before the second anniversary of the settlement date of the related purchase contract, the unit agent will pay to us the amounts it received in trust for that holder. Thereafter, the holder may recover those amounts only from us and not the unit agent. The unit agent will have no obligation to invest or to pay interest on any amounts it holds in trust pending distribution.
FORMS OF SECURITIES
Each debt security, warrant, purchase contract and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Both certificated securities in definitive form and global securities may be issued either (1) in registered form, where our obligation runs to the holder of the security named on the face of the security or, if a registry is kept, the registered owner of the note in the registry, or (2) subject to the limitations explained below under "--Limitations on Issuance of Bearer Securities and Bearer Debt Warrants," in bearer form, where our obligation runs to the bearer of the security. Definitive securities name you or your nominee as the owner of the security (other than definitive bearer securities, which the holder thereof will be the owner), and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Registered global securities name a depositary or its nominee as the owner of the debt securities, warrants, purchase contracts or units represented by these global securities (other than global bearer securities, which the holder thereof will be the owner). The depositary maintains a computerized system that will reflect each investor's beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
Registered Global Securities. We may issue registered debt securities, warrants, purchase contracts and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book entry registration and transfer system, the participants' accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner and holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement, purchase contract or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement, purchase contract or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement, purchase contract or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement, purchase contract or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, interest payments on debt securities, other amounts due under debt securities and any payments to holders with respect to warrants, purchase contract or units, represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of us, the trustees, the warrant agents, the unit agents or any of our other agents, agent of the trustees or agent of the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, interest, other amounts or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants' accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers registered in "street name," and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor depositary registered as a clearing agency under the Securities Exchange Act of 1934 is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition, the indenture permits us at any time and in our sole discretion to decide not to have any of the securities represented by one or more registered global securities. However, The Depository Trust Company, New York, New York has advised us that, under its current practices, it would notify its participants of our request, but will only withdraw beneficial interests from the global securities at the request of each DTC participant. We will issue securities in definitive form in exchange for the registered global security or all the securities representing those securities. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary's instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
Bearer Global Securities. The securities may also be issued in the form of one or more bearer global securities that will be deposited with a common depositary for the Euroclear System and Clearstream Banking, societe anonyme or with a nominee for the depositary identified in the prospectus supplement relating to those securities. The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any securities to be represented by a bearer global security will be described in the prospectus supplement relating to those securities.
Limitations on Issuance of Bearer Securities and Bearer Debt Warrants
In compliance with United States federal income tax laws and regulations,
bearer securities, including bearer securities in global form, and bearer debt
warrants will not be offered, sold, resold or delivered, directly or indirectly,
in the United States or its possessions or to United States persons, as defined
below, except as otherwise permitted by United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D). Any underwriters, agents or dealers participating
in the offerings of bearer securities or bearer debt warrants, directly or
indirectly, must agree that:
o they will not, in connection with the original issuance of any bearer securities or during the restricted period, as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7) which we refer to as the "restricted period," offer, sell, resell or deliver, directly or indirectly, any bearer securities in the United States or its possessions or to United States persons, other than as permitted by the applicable Treasury Regulations described above, and
o they will not, at any time, offer, sell, resell or deliver, directly or indirectly, any bearer debt warrants in the United States or its possessions or to United States persons, other than as permitted by the applicable Treasury Regulations described above.
In addition, any underwriters, agents or dealers must have procedures reasonably designed to ensure that their employees or agents who are directly engaged in selling bearer securities or bearer debt warrants are aware of the above restrictions on the offering, sale, resale or delivery of bearer securities or bearer debt warrants.
Bearer securities, other than temporary global debt securities and bearer
securities that satisfy the requirements of United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(iii) and any coupons appertaining thereto will
not be delivered in permanent global form or definitive bearer form, and no
interest will be paid thereon, unless we have received a signed certificate in
writing, or an electronic certificate described in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii), stating that on the date of that
certificate the relevant interest in the bearer security:
o is owned by a person that is not a United States person;
o is owned by a United States person that (a) is a foreign branch of a
United States financial institution, as defined in applicable United
States Treasury Regulations, which we refer to as a "financial
institution," purchasing for its own account or for resale, or (b)
is acquiring the bearer security through a foreign branch of a
United States financial institution and who holds the bearer
security through that financial institution through that date, and
in either case (a) or (b) above, each of those United States
financial institutions agrees, on its own behalf or through its
agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and
the Treasury Regulations thereunder; or
o is owned by a United States or foreign financial institution for the purposes of resale during the restricted period and, whether or not also described in the first or second clause above, the financial institution certifies that it has not acquired the bearer security for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
We will not issue bearer debt warrants in definitive form.
We will make payments on bearer securities and bearer debt warrants only outside the United States and its possessions except as permitted by the above Treasury Regulations.
Bearer securities, other than temporary global securities, and any coupons or talons issued with bearer securities will bear the following legend: "Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in sections 165(j) and 1287(a) of the Internal Revenue Code." The sections referred to in this legend provide
that, with exceptions, a United States person will not be permitted to deduct any loss, and will not be eligible for capital gain treatment with respect to any gain realized on the sale, exchange or redemption of that bearer security or coupon.
As used in this section, the term bearer securities includes bearer securities that are part of units and the term bearer debt warrants includes bearer debt warrants that are part of units. As used herein, the term "United States person" means a citizen or resident of the United States for United States federal income tax purposes, a corporation or partnership, including an entity treated as a corporation or partnership for United States federal income tax purposes, created or organized in or under the laws of the United States, or any state of the United States or the District of Columbia, or an estate or trust the income of which is subject to United States federal income taxation regardless of its source. As used herein, "United States" means the United States of America (including the states thereof and the District of Columbia) and "its possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
Form of Securities Included in Units
The form of any warrant included in a unit will correspond to the form of the unit and of any other security included in that unit.
PLAN OF DISTRIBUTION
We may sell the debt securities, warrants, units or purchase contracts:
o through agents;
o through underwriters;
o through dealers; and
o directly to purchasers, any of whom may be customers of, engage in transactions with, or perform services for, the Company in the ordinary course of business.
If we offer and sell securities through an agent, that agent will be named, and any commissions payable to that agent by us, will be set forth in the prospectus supplement. Any agent will be acting on a best efforts basis for the period of its appointment which will usually be five business days or less. An agent may be deemed to be an underwriter under the federal securities laws.
If underwriters are used in the sale of the securities, we will sign an underwriting agreement with them. The underwriting agreement will provide that the obligations of the underwriters are subject to certain conditions and that the underwriters will be obligated to purchase all of the securities if any are purchased. Underwriters will buy the securities for their own account and may resell them from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined at the time of sale. Securities may be offered to the public either through underwriting syndicates represented by managing underwriters, or directly by the managing underwriters. The name of the managing underwriter or underwriters, as well as any other underwriters, and the terms of the transaction, including compensation of the underwriters and dealers, if any, will be set forth in the prospectus supplement. The underwriters named in the prospectus supplement will be the only underwriters for the securities offered by that prospectus supplement.
If a dealer is utilized in the sale of securities, we will sell those securities to the dealer, as principal. The dealer may resell those securities to the public at varying prices to be determined by the dealer at the time of resale. A dealer may be deemed to be an underwriter of those securities under the securities laws. The name of the dealer and the terms of the transaction will be set forth in the prospectus supplement.
Our net proceeds will be the purchase price in the case of sales to a dealer, the public offering price less discount in the case of sales to an underwriter or the purchase price less commission in the case of sales through an agent -- in each case, less other expenses attributable to issuance and distribution.
In order to facilitate the offering of these securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of these securities or any other securities the prices of which may be used to determine payments on these securities. Specifically, the underwriters may sell more securities than they are obligated to purchase in connection with the offering, creating a short position for their own accounts. A short sale is covered if the short position is no greater than the number or amount of securities available for purchase by the underwriters under any overallotment option. The underwriters can close out a covered short sale by exercising the overallotment option or purchasing these securities in the open market. In determining the source of securities to close out a covered short sale, the underwriters will consider, among other things, the open market price of these securities compared to the price available under the overallotment option. The underwriters may also sell these securities or any other securities in excess of the overallotment option, creating a naked short position. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of these securities in the open market after pricing that could adversely affect investors who purchase in the offering. As an additional means of facilitating the offering, the underwriters may bid for, and purchase, these securities or any other securities in the open market to
stabilize the price of these securities or of any other securities. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may also reclaim selling concessions allowed to an underwriter or a dealer for distributing these securities in the offering, if the syndicate repurchases previously distributed securities to cover syndicate short positions or to stabilize the price of these securities. Any of these activities may raise or maintain the market price of these securities above independent market levels or prevent or retard a decline in the market price of these securities. The underwriters are not required to engage in these activities, and may end any of these activities at any time.
We may agree to indemnify agents, underwriters, or dealers against certain liabilities, including liabilities under the securities laws, or to contribute to payments that agents, underwriters, or dealers may be required to make. Agents, underwriters and dealers may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
We may directly solicit offers to purchase securities, and we may sell securities directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the securities laws. The terms of any such sales will be described in the prospectus supplement.
We may enter into derivative or other hedging transactions with financial institutions. These financial institutions may in turn engage in sales of securities to hedge their position, deliver this prospectus in connection with some or all of those sales and use the securities covered by this prospectus to close out any loan of securities or short position created in connection with those sales. We may also sell securities short using this prospectus and deliver securities covered by this prospectus to close out any loan of securities or such short positions, or loan or pledge securities to financial institutions that in turn may sell the securities using this prospectus. We may pledge or grant a security interest in some or all of the securities covered by this prospectus to support a derivative or hedging position or other obligation and, if we default in the performance of our obligations, the pledgees or secured parties may offer and sell the securities from time to time pursuant to this prospectus.
We may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this prospectus. Such financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities offered by this prospectus.
If so indicated in the applicable prospectus supplement, one or more firms, including J.P. Morgan Securities Inc., which we refer to as "remarketing firms," may also offer or sell the securities in connection with a remarketing arrangement upon their purchase. Remarketing firms may act as principals for their own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with a redemption or repayment pursuant to the terms of the securities. The prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm's compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
We may authorize agents, underwriters, and dealers to solicit offers by certain institutions to purchase the securities from us at the public offering price stated in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future and on terms described in the prospectus supplement. These contracts will be subject to only those conditions described in the prospectus supplement, and the prospectus supplement will state the commission payable for solicitation of these offers. Institutions with whom delayed delivery contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions but shall in all cases be institutions which we have approved.
These contracts will be subject only to the conditions that:
o the underwriters purchase the securities at the time of the contract; and
o the purchase is not prohibited under the laws of any jurisdiction in the United States to which the purchase is subject.
We will pay a commission, as indicated in the prospectus supplement, to agents and dealers soliciting purchases of securities pursuant to delayed delivery contracts that we have accepted.
This prospectus and related prospectus supplement may be used by direct or indirect wholly owned subsidiaries of ours in connection with offers and sales related to secondary market transactions in the securities. Those subsidiaries may act as principal or agent in those transactions. Secondary market sales will be made at prices related to prevailing market prices at the time of sale.
The offer and sale of the securities by an affiliate of ours will comply with the requirements of Rule 2720 of the Rules of Conduct of the National Association of Securities Dealers, Inc., which is commonly referred to as the NASD, regarding the distribution of securities of an affiliate. Following the initial distribution of any of the securities, our affiliates may offer and sell these securities in the course of their business as broker dealers. Our affiliates may act as principals or agents in these transactions and may make any sales at varying prices related to prevailing market prices at the time of sale or otherwise. None of our affiliates is obligated to make a market in any of these securities and may discontinue any market making activities at any time without notice.
As required by the NASD, (a) post-effective amendments or prospectus supplements disclosing the actual price and selling terms will be submitted to the NASD's Corporate Financing Department (the Department ) at the same time they are filed with the SEC, (b) the Department will be advised if, subsequent to the filing of the offering, any 5% or greater shareholder of ours is or becomes an affiliate or associated person of an NASD member participating in the distribution, and (c) all NASD members participating in the offering will confirm their understanding of the requirements that have to be met in connection with SEC Rule 415 and Notice-to-Members 88-101. Underwriting discounts and commissions on securities sold in the initial distribution will not exceed 8% of the offering proceeds.
Any underwriter, agent or dealer utilized in the initial offering of securities will not confirm sales to accounts over which it exercises discretionary authority without the prior specific written approval of its customer.
EXPERTS
JPMorgan Chase. The financial statements of JPMorgan Chase & Co. and management's assessment of the effectiveness of internal control over financial reporting (which is included in Management's Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2004 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of that firm as experts in auditing and accounting.
Bank One. The financial statements of Bank One incorporated in this document by reference to our Current Report on Form 8-K filed on March 1, 2004 have been incorporated in reliance on the report of KPMG LLP, an independent registered public accounting firm, given on the authority of that firm as experts in auditing and accounting, whose report dated January 20, 2004 refers to Bank One's adoption of FASB Interpretation No. 46, Consolidation of Variable Interest Entities, effective December 31, 2003, and the discontinuance and sale of Bank One's corporate trust services business in 2003.
LEGAL OPINIONS
The validity of the securities will be passed upon for JPMorgan Chase & Co. by Simpson Thacher & Bartlett LLP. Davis Polk & Wardwell will pass upon certain legal matters relating to these securities for the underwriters. Each of Simpson Thacher & Bartlett LLP and Davis Polk & Wardwell has in the past represented JPMorgan Chase & Co. and its affiliates, and continues to represent JPMorgan Chase & Co. and its affiliates, on a regular basis and in a variety of matters.
BENEFIT PLAN INVESTOR CONSIDERATIONS
A fiduciary of a pension, profit-sharing or other employee benefit plan subject to the Employment Retirement Income Security Act of 1974, as amended ("ERISA"), including entities such as collective investment funds, partnerships and separate accounts whose underlying assets include the assets of such plans (collectively, "ERISA Plans") should consider the fiduciary standards of ERISA in the context of the ERISA Plans particular circumstances before authorizing an investment in the securities. Among other factors, the fiduciary should consider whether the investment would satisfy the prudence and diversification requirements of ERISA and would be consistent with the documents and instruments governing the ERISA Plan.
Section 406 of ERISA and Section 4975 of the Internal Revenue Code of
1986, as amended, (the "Code") prohibit ERISA Plans, as well as individual
retirement accounts and Keogh plans subject to Section 4975 of the Code
(together with ERISA Plans, "Plans"), from engaging in certain transactions
involving the "plan assets" with persons who are "parties in interest" under
ERISA or "disqualified persons" under the Code ("Parties in Interest") with
respect to such Plans. As a result of its business, the Company is a Party in
Interest with respect to many Plans. Where the Company is a Party in Interest
with respect to a Plan (either directly or by reason of its ownership of its
subsidiaries), the purchase and holding of the securities by or on behalf of the
Plan would be a prohibited transaction under Section 406(a)(1) of ERISA and
Section 4975(c)(1) of the Code, unless exemptive relief were available under an
applicable administrative exemption (as described below) or there was some other
basis on which the transaction was not prohibited.
Accordingly, the securities may not be purchased or held by any Plan, any entity whose underlying assets include "plan assets" by reason of any Plan's investment in the entity (a "Plan Asset Entity") or any person investing "plan assets" of any Plan, unless such purchaser or holder is eligible for the exemptive relief available under Prohibited Transaction Class Exemption ("PTCE") 96-23, 95-60, 91-38, 90-1 or 84-14 issued by the U.S. Department of Labor or there was some other basis on which the purchase and holding of the securities is not prohibited. Unless the applicable prospectus supplement explicitly provides otherwise, any purchaser or holder of the securities or any interest therein will be deemed to have
represented by its purchase of the securities that (a) its purchase and holding
of the securities is not made on behalf of or with "plan assets" of any Plan or
(b) its purchase and holding of the securities will not result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code or there is
some other basis on which such purchase and holding is not prohibited.
Employee benefit plans that are governmental plans (as defined in Section 3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and non-U.S. plans (as described in Section 4(b)(4) of ERISA) are not subject to these "prohibited transaction" rules of ERISA or Section 4975 of the Code, but may be subject to similar rules under other applicable laws or documents ("Similar Laws").
Due to the complexity of the applicable rules, it is particularly important that fiduciaries or other persons considering purchasing the securities on behalf of or with "plan assets" of any Plan consult with their counsel regarding the relevant provisions of ERISA, the Code or any Similar Laws and the availability of exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or some other basis on which the acquisition and holding is not prohibited.
Purchasers and holders of the securities have exclusive responsibility for ensuring that their purchase and holding of the securities do not violate the fiduciary or prohibited transaction rules of ERISA, the Code or any Similar Laws. The sale of any securities to any Plan is in no respect a representation by the Company or any of its affiliates or representatives that such an investment meets all relevant legal requirements with respect to investments by Plans generally or any particular Plan, or that such an investment is appropriate for Plans generally or any particular Plan.
Please consult the applicable prospectus supplement for further information with respect to a particular offering and, in certain cases, further restrictions on the purchase or transfer of securities.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses in connection with the issuance and distribution of securities being registered, other than underwriting compensation and related hedging costs, are as follows:
Securities and Exchange Commission registration fee............. $ #
Legal fees and expenses......................................... 50,000*
National Association of Securities Dealers Inc. filing fee...... 75,500+
Accounting fees and expenses.................................... 75,000*
Trustees fees and expenses (including counsel fees)............. 60,000*
Rating agency fees.............................................. 75,000*
Printing expenses............................................... 75,000*
Miscellaneous................................................... 9,500*
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Total....................................................... $ 420,000*
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# Deferred in reliance upon Rule 456(b) and 457(r)
* Estimated
+ Assumes maximum fee payable under NASD rules and regulations
Item 15. Indemnification of Officers and Directors.
Pursuant to the Delaware General Corporation Law ("DGCL"), a corporation may indemnify any person in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than a derivative action by or in the right of such corporation) who is or was a director, officer, employee or agent of such corporation, or serving at the request of such corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys' fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to such corporation unless the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
The DGCL provides that the indemnification described above shall not be deemed exclusive of any other indemnification that may be granted by a corporation pursuant to its by-laws, disinterested directors' vote, stockholders' vote, agreement or otherwise.
The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as described above.
II-1
The certificate of incorporation of JPMorgan Chase & Co. ("JPMorgan Chase" or the "Registrant") provides that, to the fullest extent that the DGCL as from time to time in effect permits the limitation or elimination of the liability of directors, no director of JPMorgan Chase shall be personally liable to JPMorgan Chase or its stockholders for monetary damages for breach of fiduciary duty as a director.
JPMorgan Chase's certificate of incorporation empowers JPMorgan Chase to indemnify any director, officer, employee or agent of JPMorgan Chase or any other person who is serving at JPMorgan Chase's request in any such capacity with another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, an employee benefit plan) to the fullest extent permitted under the DGCL as from time to time in effect, and any such indemnification may continue as to any person who has ceased to be a director, officer, employee or agent and may inure to the benefit of the heirs, executors and administrators of such a person.
JPMorgan Chase's certificate of incorporation also empowers JPMorgan Chase by action of its board of directors, notwithstanding any interest of the directors in the action, to purchase and maintain insurance in such amounts as the Board of Directors deems appropriate to protect any director, officer, employee or agent of JPMorgan Chase or any other person who is serving at JPMorgan Chase's request in any such capacity with another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, an employee benefit plan) against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such (including, without limitation, expenses, judgments, fines (including any excise taxes assessed on a person with respect to any employee benefit plan) and amounts paid in settlement) to the fullest extent permitted under the DGCL as from time to time in effect, whether or not JPMorgan Chase would have the power or be required to indemnify any such individual under the terms of any agreement or by-law or the DGCL.
In addition, JPMorgan Chase's by-laws require indemnification to the fullest extent permitted under applicable law, as from time to time in effect. The by-laws provide a clear and unconditional right to indemnification for expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by any person in connection with any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, administrative or investigative (including, to the extent permitted by law, any derivative action) by reason of the fact that such person is or was serving as a director, officer, employee or agent of JPMorgan Chase or, at the request of JPMorgan Chase, of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, an employee benefit plan). The by-laws specify that the right to indemnification so provided is a contract right, set forth certain procedural and evidentiary standards applicable to the enforcement of a claim under the by-laws and entitle the persons to be indemnified to have all expenses incurred in advance of the final disposition of a proceeding paid by JPMorgan Chase. Such provisions, however, are intended to be in furtherance and not in limitation of the general right to indemnification provided in the by-laws, which right of indemnification and of advancement of expenses is not exclusive.
JPMorgan Chase's by-laws also provide that JPMorgan Chase may enter into contracts with any director, officer, employee or agent of JPMorgan Chase in furtherance of the indemnification provisions in the by-laws, as well as create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure payment of amounts indemnified.
The foregoing statements are subject to the detailed provisions of Section 145 of the DGCL and the by-laws of JPMorgan Chase.
Item 16. Exhibits.
The exhibits to this registration statement are listed in the exhibit index, which appears elsewhere herein and is incorporated herein by reference.
II-2
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
provided, however, that paragraphs (1)(i), (1)(ii) and 1(iii) do not apply if the information required to be included in a post effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in this Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective date.
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(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934, as amended, (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in such Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in The City of New York and State of New York, on this 1st day of December, 2005.
JPMORGAN CHASE & CO.
By: /s/ Anthony J. Horan
----------------------------------------
Name: Anthony J. Horan
Title: Corporate Secretary
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Director, Chairman of the Board and
Chief Executive Officer (Principal
* Executive Officer) December 1, 2005
-------------------------------------------
William B. Harrison, Jr.
Director, President and Chief
* Operating Officer December 1, 2005
-------------------------------------------
James Dimon
* Director December 1, 2005
-------------------------------------------
Hans W. Becherer
* Director December 1, 2005
-------------------------------------------
John H. Biggs
* Director December 1, 2005
-------------------------------------------
Lawrence A. Bossidy
* Director December 1, 2005
-------------------------------------------
Stephen B. Burke
* Director December 1, 2005
-------------------------------------------
James S. Crown
* Director December 1, 2005
-------------------------------------------
Ellen V. Futter
* Director December 1, 2005
-------------------------------------------
William H. Gray, III
* Director December 1, 2005
-------------------------------------------
Laban P. Jackson, Jr.
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II-5
Signature Title Date
--------- ----- ----
* Director December 1, 2005
-------------------------------------------
John W. Kessler
* Director December 1, 2005
-------------------------------------------
Robert I. Lipp
* Director December 1, 2005
-------------------------------------------
Richard A. Manoogian
* Director December 1, 2005
-------------------------------------------
David C. Novak
* Director December 1, 2005
-------------------------------------------
Lee R. Raymond
* Director December 1, 2005
-------------------------------------------
William C. Weldon
Executive Vice President
and Chief Financial Officer
* (Principal Financial Officer) December 1, 2005
-------------------------------------------
Michael J. Cavanagh
Executive Vice President
and Controller
* (Principal Accounting Officer) December 1, 2005
-------------------------------------------
Joseph L. Sclafani
|
*Anthony J. Horan hereby signs this Registration Statement on behalf of each of the indicated persons for whom he is Attorney-in-Fact on December 1, 2005 pursuant to powers of attorney filed as exhibits to this Registration Statement.
By: /s/ Anthony J. Horan ----------------------------- Name: Anthony J. Horan Title: Attorney-in-Fact |
II-6
EXHIBIT INDEX
Exhibit Number Description
1(a)(1) Underwriting Agreement Standard Provisions (including form of
Delayed Delivery Contract) dated as of June 12, 2001 (incorporated
by reference to Exhibit 1(a)(1) to Amendment No. 1 to the
Registration Statement on Form S-3 (File No. 333-52826) of the
Registrant)
1(a)(2)* Master Agency Agreement dated as of December 1, 2005
4(a)(1) Indenture, dated as of May 25, 2001, between JPMorgan Chase &Co. and
Deutsche Bank Trust Company Americas (formerly Bankers Trust
Company), as trustee (incorporated by reference to Exhibit 4(a)(1)
to Amendment No. 1 to the Registration Statement on Form S-3 (File
No. 333-52826) of the Registrant)
4(b)(1) Form of Fixed Rate Note (incorporated by reference to Exhibit
4(b)(1) to Amendment No. 1 to the Registration Statement on Form S-3
(File No. 333-52826) of the Registrant)
4(b)(2) Form of Floating Rate Note (incorporated by reference to Exhibit
4(b)(1) to Amendment No. 1 to the Registration Statement on Form S-3
(File No. 333-52826) of the Registrant)
4(b)(3) Form of Permanent Global Fixed Rate Bearer Note (incorporated by
reference to Exhibit 4(b)(3) to Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-52826) of the Registrant)
4(b)(4) Form of Temporary Global Fixed Rate Bearer Note (incorporated by
reference to Exhibit 4(b)(4) to Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-52826) of the Registrant)
4(b)(5) Form of Permanent Global Floating Rate Bearer Note (incorporated by
reference to Exhibit 4(b)(5) to Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-52826) of the Registrant)
4(b)(6) Form of Temporary Global Floating Rate Bearer Note (incorporated by
reference to Exhibit 4(b)(6) to Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-52826) of the Registrant)
4(c) Form of Debt Warrant Agreement (incorporated by reference to Exhibit
4(c) to Amendment No. 1 to the Registration Statement on Form S-3
(File No. 333-52826) of the Registrant)
4(d) Forms of Debt Warrant Certificates (included as Exhibits A and B to
form of Debt Warrant Agreement) (incorporated by reference to
Exhibit 4(d) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(e) Form of Index Warrant Agreement (incorporated by reference to
Exhibit 4(e) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(f) Forms of Index Warrant Certificates (included as Exhibits A and A-1
to form of Index Warrant Agreement) (incorporated by reference to
Exhibit 4(f) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(g) Form of Currency Warrant Agreement (incorporated by reference to
Exhibit 4(g) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(h) Forms of Currency Warrant Certificates (included as Exhibits A and
A-1 to form of Currency Warrant Agreement) (incorporated by
reference to Exhibit 4(h) to Amendment No. 1 to the
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Exhibit Number Description
Registration Statement on Form S-3 (File No. 333-52826) of the
Registrant)
4(i) Form of Interest Rate Warrant Agreement (incorporated by reference
to Exhibit 4(i) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(j) Forms of Interest Rate Warrant Certificates (included as Exhibits A
and A-1 to form of Interest Rate Warrant Agreement) (incorporated by
reference to Exhibit 4(j) to Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-52826) of the Registrant)
4(k) Form of Universal Warrant Agreement (incorporated by reference to
Exhibit 4(k) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(1) Forms of Universal Warrant Certificates (included as Exhibits A and
B to form of Universal Warrant Agreement) (incorporated by reference
to Exhibit 4(1) to Amendment No. 1 to the Registration Statement on
Form S-3 (File No. 333-52826) of the Registrant)
4(m) Form of Unit Agreement (incorporated by reference to Exhibit 4(m) to
Amendment No. 1 to the Registration Statement on Form S-3 (File No.
333-52826) of the Registrant)
4(n) Form of Unit Certificate (included as Exhibit A to form of Unit
Agreement) (incorporated by reference to Exhibit 4(n) to Amendment
No. 1 to the Registration Statement on Form S-3 (File No. 333-52826)
of the Registrant)
4(o)+ Form of Purchase Contract
4(p)* Calculation Agent Agreement dated as of December 1, 2005
4(q)* Paying Agent, Registrar & Transfer Agent and Authenticating Agent
Agreement dated as of March 23, 2005
5.1* Opinion of Simpson Thacher & Bartlett LLP
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the nine months ended September 30, 2005 (incorporated herein by
reference to Exhibit 12.1 to Registrant's Current Report on Form 8-K
filed on October 19, 2005 (File No. 001-05805) pursuant to Items
2.02 and 9.01)
12.2 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2004 (incorporated herein by reference
to Exhibit 12.1 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 2004 (File No. 001-05805))
12.3 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2003 (incorporated herein by reference
to Exhibit 12.1 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 2003 (File No. 001-05805))
12.4 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2002 (incorporated herein by reference
to Exhibit 12.1 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 2002 (File No. 001-05805))
12.5 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2001 (incorporated herein by reference
to Exhibit 12.1 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 2001 (File No. 001-05805))
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Exhibit Number Description
12.6 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2000 (incorporated herein by reference
to Exhibit 12.1 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 2000 (File No. 001-05805))
23(a)* Consent of PricewaterhouseCoopers LLP
23(b)* Consent of KPMG LLP
23(c)* Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5)
24.1* Powers of Attorney of William B. Harrison, Jr., James Dimon, Hans W.
Becherer, John H. Biggs, Lawrence A. Bossidy, Stephen B. Burke,
James S. Crown, Ellen V. Futter, William H. Gray, III, Laban P.
Jackson, Jr., John W. Kessler, Robert I. Lipp, Richard A. Manoogian,
David C. Novak, Lee R. Raymond, William C. Weldon, Michael J.
Cavanagh and Joseph L. Sclafani
25.1 Statement of Eligibility of Trustee on Form T-1 (incorporated by
reference to Exhibit 25.1 to Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-52826) of the Registrant)
----------
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* Filed herewith.
+ To be filed by amendment or under subsequent Current Report on Form 8-K.
Exhibit 1(a)(2)
JPMORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES E
GLOBAL WARRANTS, SERIES E
GLOBAL UNITS, SERIES E
MASTER AGENCY AGREEMENT
As of December 1, 2005
To the Agent listed on
Exhibit A hereto and
each person that shall
have become an Agent as
provided in Section 3(c)
hereof:
Dear Ladies and Gentlemen:
1. Introduction. JPMorgan Chase & Co., a Delaware corporation (the "Company"), confirms its agreement with each of you (individually an "Agent" and collectively the "Agents") with respect to the issue and sale from time to time by the Company of up to $4,000,000,000, less the initial public offering price of any securities previously issued under the Registration Statement referred to below (or the equivalent thereof in one or more currencies other than U.S. dollars), aggregate initial public offering price of its Global Medium-Term Notes, Series E, due more than nine months from the date of issue (the "Notes"), its Global Warrants, Series E (the "Warrants") and its Global Units, Series E (the "Units" and, together with the Notes, Warrants and any other securities that may be offered by post-effective amendment to the Registration Statement referred to below, the "Program Securities"), as such amount may be increased from time to time upon due authorization by the Company. The Notes will be issued, either alone or as part of a Unit, pursuant to the provisions of an indenture dated as of May 25, 2001, between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the "Trustee") (as may be supplemented or amended from time to time, the "Indenture").
The Warrants will be issued, either alone or as part of a Unit, pursuant to the provisions of a Warrant Agreement between the Company and a warrant agent to be appointed by the Company (the "Warrant Agent"), substantially in the form of one of the warrant agreements filed as an exhibit to the Registration Statement referred to below (each a "Warrant Agreement").
The Units will be issued pursuant to the provisions of a Unit Agreement
between the Company and a unit agent to be appointed by the Company (the "Unit Agent"), substantially in the form of the unit agreement filed as an exhibit to the Registration Statement referred to below (each a "Unit Agreement"). Units may include one or more (i) Notes, (ii) Warrants or (iii) any combination thereof. The applicable supplement to the Prospectus referred to below will specify whether the Notes and/or Warrants comprised by a Unit may or may not be separated from the Units.
The Notes, whether issued alone or as part of a Unit, will have the maturities, interest rates, redemption provisions, if any, and other terms as set forth in supplements to the Prospectus referred to below and Term Sheets referred to below. The Warrants, whether issued alone or as part of a Unit, will have the exercise prices, exercise dates, expiration dates and other terms as set forth in supplements to the Prospectus and Term Sheets. Program Securities other than Notes, Warrants, Units or any combination thereof, whether issued alone or as part of a Unit, will have the terms as set forth in supplements to the Prospectus and Term Sheets.
2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, each Agent as follows:
(a) A Registration Statement on Form S-3 (File No. 333- ) relating to the Program Securities has been filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), and has become effective and 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 any offering of the Program Securities has been initiated or threatened by the Commission. Such registration statement, as amended as of the Closing Date (as defined in Section 6 below), including the documents incorporated therein by reference is hereinafter referred to as the "Registration Statement" and the prospectus included in the Registration Statement, as supplemented by a prospectus supplement and one or more product supplements and/or pricing supplements setting forth the terms of the Program Securities, including all material incorporated by reference therein, in the form in which such prospectus, prospectus supplement and product supplement(s) and/or final pricing supplement have most recently been filed, or transmitted for filing, with the Commission pursuant to paragraph (b) of Rule 424 of the rules and regulations adopted by the Commission thereunder, is hereinafter referred to as the "Prospectus".
(b) On the date it most recently became effective under the Act, the Registration Statement conformed in all respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations adopted by the Commission under the Act and the Trust Indenture Act (the "Rules and Regulations") and 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 on the Closing Date, the Registration Statement and the Prospectus will conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and 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, and at each of the times of amending or supplementing referred to in Section 7(b) hereof, the Registration Statement and the Prospectus as then amended or supplemented will conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and 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 no representation is made with respect to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to the Company by any Agent specifically for use therein.
(c) The Time of Sale Information at each Time of Sale 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 reliance upon and in conformity with information relating to any Agent furnished to the Company in writing by such Agent expressly for use in such Time of Sale Information.
"Time of Sale" shall mean any time at or prior to the confirmation of any sales of any Program Securities.
"Time of Sale Information" shall mean the Prospectus most recently filed or transmitted for filing as of such Time of Sale, each product supplement or pricing supplement to such Prospectus that relates to the sale of Program Securities confirmed at such Time of Sale that has been filed or transmitted for filing as of such Time of Sale, each preliminary prospectus or Term Sheet, if any, that relates to the sale of Program Securities confirmed at such Time of Sale that has been filed or transmitted for filing as of such Time of Sale and each "Free Writing Prospectus" (as defined pursuant to Rule 405 under the Act) that has been prepared by or on behalf of the Company relating to such Program Securities.
(d) Other than a Free Writing Prospectus approved in advance by J.P. Morgan Securities Inc. ("JPMSI") in its capacity as agent, the Company (including its agents and representatives, other than the Agents in their capacity as such and selected dealers purchasing Program Securities as principal from the Agents) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Program Securities. At each Time of Sale, each
such Free Writing Prospectus included in the applicable Time of Sale Information 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 product supplement(s) and Prospectus filed prior to such Free Writing Prospectus, did not, and 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 Free Writing Prospectus in reliance upon and in conformity with information relating to any Agent furnished to the Company in writing by such Agent expressly for use in any Free Writing Prospectus.
(e) 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 legally binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or at law and (iii) is subject to an implied covenant of good faith and fair dealing.
(f) The forms of Unit Agreement and Warrant Agreements have been duly authorized by the Company and, when a Unit Agreement or a Warrant Agreement, as the case may be, has been duly executed and delivered by the Company, will be a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or at law and (iii) is subject to an implied covenant of good faith and fair dealing.
(g) The forms of Notes, whether issued alone or as part of a Unit, have been duly authorized by the Company and when the terms of the Notes have been duly established in conformity with the provisions of the Indenture and, when the Notes have been executed and authenticated in accordance with the Indenture and delivered to and duly paid for by the purchasers thereof, the Notes will be entitled to the benefits of the Indenture and will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except as the enforceability thereof (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally, (ii) is subject to general principles of equity, regardless of whether such enforceability is considered at a proceeding in equity or at law and (iii) is subject to an implied covenant of good faith and fair dealing.
(h) The forms of Units under the Unit Agreement and the forms of Warrants
under the Warrant Agreements, whether issued alone or as part of a Unit, have
been duly authorized by the Company and when the applicable Unit Agreement or
Warrant Agreement, as the case may be, has been duly executed and delivered and
the terms of the Units and Warrants have been duly established in conformity
with the applicable agreement and, when the Units or Warrants have been executed
by the Company and countersigned by the Unit Agent or Warrant Agent, as the case
may be, in accordance with the provisions of the Unit Agreement or a Warrant
Agreement, as the case may be, and delivered to and duly paid for by the
purchasers thereof, the Units or Warrants will be entitled to the benefits of
the Unit Agreement or Warrant Agreement, as the case may be, and will be valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally, (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in equity or at law
and (iii) is subject to an implied covenant of good faith and fair dealing.
(i) The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Act, in connection with the offering of the Program Securities.
Notwithstanding the foregoing, it is understood and agreed that the representations and warranties set forth in Section 1(g) (except as to due authorization of the Notes) and 1(h) (except as to due authorization of the Warrants and Units), when made as of the Closing Date, or as of any date on which you solicit offers to purchase Program Securities, with respect to any Program Securities the payments of principal or interest on which, or any other payments with respect to which, will be determined by reference to one or more currency exchange rates, commodity prices, securities of entities affiliated or unaffiliated with the Company, baskets of such securities, equity indices or other factors, shall be deemed not to address the application of the Commodity Exchange Act, as amended, or the rules, regulations or interpretations of the Commodity Futures Trading Commission.
3. Establishment of Agency; Solicitations by Agents.
(a) Subject to the terms and conditions set forth herein and to the reservation by the Company of the right to (i) sell Program Securities directly on its own behalf at any time and to any person, (ii) cause Additional Agents (as defined below) to become parties to this Agreement or enter into similar agreements from time to time pursuant to Section 3(c), (iii) sell Program Securities pursuant to Section 4 hereof to any Agent, acting as principal, for its own account or for resale to one or more investors or to another broker-dealer, acting as principal, for purpose of resale and (iv) accept (but not solicit) offers to purchase Program Securities through other agents on substantially the same terms
and conditions as would apply to the Agents, the Company hereby appoints each Agent an agent of the Company for the purpose of soliciting and receiving offers to purchase Program Securities from the Company.
(b) On the basis of the representations and warranties and subject to the terms and conditions set forth herein, each Agent severally and not jointly hereby agrees, as agent of the Company, to use reasonable efforts when requested by the Company to solicit and receive offers to purchase Program Securities upon the terms and conditions set forth in the Prospectus as then amended or supplemented, including by the applicable product supplement and/or the applicable Free Writing Prospectus and/or final term sheet or pricing supplement and in the applicable Procedures (as defined below).
(c) The Company may from time to time appoint one or more additional financial institutions experienced in the distribution of securities similar to the Program Securities (each such additional institution herein referred to as an "Additional Agent") as agent(s) hereunder pursuant to a letter (an "Agent Accession Letter") substantially in the form attached hereto as Exhibit B to this Agreement, whereupon each such Additional Agent shall, subject to the terms and conditions of this Agreement and the Agent Accession Letter, become a party to this Agreement as an agent, vested with all the authority, rights and powers and subject to all the duties and obligations of an Agent as if originally named as an Agent hereunder. If the Company shall appoint any Additional Agent(s) pursuant to an Agent Accession Letter in accordance with this subsection (c), the Company shall provide each Agent with a copy of such executed Agent Accession Letter.
(d) Upon receipt of any notice delivered by the Company pursuant to
Section 5(c), each Agent shall suspend its solicitation of offers to purchase
Program Securities until the Company shall have amended or supplemented the
Registration Statement or the Prospectus as contemplated by Section 5(c) and
shall have advised such Agent that such solicitation may be resumed.
(e) The Company reserves the right, in its sole discretion, to suspend, at any time and for any period, the solicitation of offers to purchase Program Securities. Upon receipt of any notice of such suspension from the Company, each Agent shall as soon as possible, but in no event later than one Business Day (as defined in the applicable Procedures) in New York City after receipt of such notice, suspend its solicitation of offers to purchase Program Securities until the Company shall have advised such Agent that such solicitation may be resumed.
(f) Each Agent shall promptly communicate to the Company, orally or in writing, each offer to purchase Program Securities received by it as Agent, other than offers rejected by it pursuant to the next sentence. Each Agent shall have the right, in its discretion reasonably exercised, to reject as unreasonable any offer to purchase Program Securities received by it and no such rejection shall be deemed a breach of its obligations hereunder. The Company shall have the sole
right to accept offers to purchase Program Securities and may, in its sole discretion, reject any offer in whole or in part.
(g) At the time of the settlement of any sale of Program Securities pursuant to an offer presented by an Agent, the Company shall pay such Agent a commission based on market conditions and other factors in existence at the time of such sale, which commissions shall be subject to negotiation between the Company and the Agent and shall be disclosed in a Free Writing Prospectus or Pricing Supplement (as defined herein), as applicable, relating to such Program Securities.
(h) Administrative procedures relating to the respective duties and obligations specifically provided to be performed in the Global Medium-Term Notes, Series E, Global Warrants, Series E and Global Units, Series E, Administrative Procedures (the "Procedures") shall be agreed upon from time to time by the Agents and the Company. The initial Procedures, which are set forth in Exhibit C hereto, shall remain in effect until changed by agreement between the Company and the Agents. The Agents and the Company agree to perform the respective duties and obligations, and to observe the restrictions, specifically provided to be performed and observed by them in the applicable Procedures.
4. Purchases as Principals. (a) Each sale of Program Securities to you as principals shall be made in accordance with the terms of this Agreement. In connection with each such sale, the Company will enter into a Terms Agreement that will provide for the sale of such Program Securities to, and the purchase thereof by, you. Each Terms Agreement will take the form of either (i) a written agreement between you and the Company, which will be substantially in the form of Exhibit D, Exhibit D-1 or Exhibit D-2 (as applicable) hereto (each a "Terms Agreement"), or (ii) an oral agreement between you and the Company confirmed in writing by you to the Company.
(b) Your commitment to purchase Program Securities as principal pursuant to a Terms Agreement 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. Each (i) Terms Agreement relating to the Notes shall specify the principal amount of Notes to be purchased by you pursuant thereto, the maturity date of such Notes, the interest rate and interest rate formula, if any, applicable to such Notes and any other terms of such Notes, (ii) Terms Agreement relating to the Warrants shall specify the exercise price, the exercise date or period, the expiration date and any other terms of such Warrants and (iii) Terms Agreement relating to the Units shall specify (a) the information set forth in (i) above with respect to any Notes issued as part of a Unit and (b) the information set forth in (ii) above with respect to any Warrants issued as part of a Unit and any other terms of such Unit. Each such Terms Agreement may also specify any requirements for officers' certificates, opinions of counsel and letters from the independent auditors of the Company. A Terms Agreement may also specify certain provisions relating to the reoffering of such Notes,
Warrants or Units, as the case may be, by you.
(c) Each Terms Agreement shall specify the time and place of delivery of and payment for the Program Securities and shall set out the offering price, the Agents' commission, and any selling concession or reallowance and the net proceeds to the Company. Unless otherwise specified in a Terms Agreement, the procedural details relating to the issue and delivery of Notes, Warrants or Units, as the case may be, purchased by you as principal and the payment therefor shall be as set forth in the Procedures. Each date of delivery of and payment for Program Securities to be purchased by you as principal pursuant to a Terms Agreement is referred to herein as a "Settlement Date."
(d) Unless otherwise specified in a Terms Agreement, if you are purchasing Program Securities as principal you may resell such Program Securities to other dealers. Any such sales may be at a discount, which shall not exceed the amount set forth in the Free Writing Prospectus (available prior to the Time of Sale) or Pricing Supplement, as applicable, relating to such Program Securities.
5. Certain Agreements of the Company. The Company agrees with the Agents that:
(a) Before using, authorizing, approving, referring to or filing any Free Writing Prospectus, the Company will furnish to JPMSI, in its capacity as agent, and counsel for JPMSI, a copy of the proposed Free Writing Prospectus for review and will not use, authorize, approve, refer to or file any such Free Writing Prospectus to which JPMSI objects in its reasonable judgment.
(b) The Company will advise each Agent promptly of any proposal to amend or supplement the Time of Sale Information, the Prospectus or the Registration Statement or to register the Program Securities under any registration statements other than the Registration Statement referred to in Section 2(a) above (other than any proposal for an amendment or supplement or additional registration statement that relates only to the offering and sale of securities other than the Program Securities or the offering and sale of Program Securities other than through such Agent). The Company will also advise each Agent promptly of (i) the filing with the Commission of each amendment or supplement to the Prospectus or the Registration Statement and each such additional registration statement (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than the Program Securities or the offering and sale of Program Securities other than through such Agent), (ii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or any such additional registration statement, and will use its best efforts to prevent the issuance of any such stop order and, if such a stop order is issued, to obtain its lifting as soon as possible and (iii) receipt by the Company of any notification with respect to the
suspension of the qualification of the Program Securities for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose.
(c) If, at any time when a Prospectus or Time of Sale Information relating to the Program Securities is required to be delivered under the Act, any event shall occur as a result of which the Prospectus or Time of Sale Information as then amended or supplemented shall 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 shall be necessary at any time to amend or supplement the Registration Statement, Time of Sale Information or the Prospectus to comply with the Act, the Company shall promptly (i) notify each Agent to suspend the solicitation of offers to purchase the Program Securities and (ii) prepare and file with the Commission an amendment or supplement that will correct such untrue statement or omission or effect such compliance.
(d) The Company agrees that it will not solicit or accept offers to purchase Program Securities from any Agent during any period when (i) the Company shall have been advised by either Moody's Investors Services, Inc. or Standard & Poor's, a division of The McGraw-Hill Companies, Inc., that such organization has determined to downgrade the rating of the Program Securities or any other debt obligations or any preferred stock of the Company and such downgrade shall not yet have been publicly announced, or (ii) there shall have occurred a material change in the financial condition or business of the Company and its subsidiaries, taken as a whole, and such event shall not have been disclosed in the Time of Sale Information or the Prospectus (directly or by incorporation by reference); provided, however, that the Company shall not be obligated to inform any Agent of the reason for, or describe the occurrence of any event that may have occasioned the need for, the suspension of its solicitation or acceptance of offers.
(e) Not later than 16 months after the date of each acceptance by the Company of an offer to purchase Program Securities hereunder, the Company will make generally available to its security holders an earnings statement that will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder covering a period of at least 12 months beginning after the last to occur of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such acceptance, (iii) the date of the Annual Report of the Company on Form 10-K most recently filed with the Commission prior to the date of such acceptance and (iv) the date a prospectus supplement filed in connection with an offer to purchase Program Securities is deemed a part of the Registration Statement pursuant to Rule 430B.
(f) The Company will furnish to each Agent copies of the Prospectus and of the Registration Statement (including the exhibits thereto relating to the offering by the Company thereunder of the Program Securities, but excluding the
documents incorporated by reference), and all amendments and supplements to the Prospectus and the Registration Statement and all additional registration statements pursuant to which any of the Program Securities may be registered (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than Program Securities or any pricing supplement relating to the offering and sale of Program Securities other than through such Agent), and each Free Writing Prospectus relating to the Program Securities to be offered and sold, in each case as soon as available and in such quantities as shall be reasonably requested. The Company will prepare, prior to the applicable Time of Sale, with respect to any Program Securities to be sold through or to the Agents, a Free Writing Prospectus in accordance with Section 5(a) hereof in the form of a term sheet or preliminary pricing supplement with respect to such Program Securities (a "Term Sheet") and will file such Term Sheet with the Commission pursuant to Rule 433 under the Act not later than the time specified by such rule. The Company will file the final version of the Term Sheet, containing the final terms of the relevant Program Securities, as a pricing supplement pursuant to the requirements of Rule 424(b) of the Act, two days after the earlier of the date such terms became final or the date of first use (each a "Pricing Supplement").
(g) The Company will arrange for the qualification of the Program Securities for sale, if any, and the determination of their eligibility for investment under the laws of such jurisdictions as the Agents designate and will continue such qualifications in effect so long as required for the distribution of the Program Securities; 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.
(h) At any time when a Prospectus is required to be delivered under the
Act, and if not publicly available through the Commission's website, the Company
will furnish to each Agent, (i) as soon as practicable after the end of each
fiscal year, the number of copies reasonably requested by such Agent of its
annual report to stockholders for such year, (ii) as soon as available, the
number of copies reasonably requested by such Agent of each report (including
without limitation reports on Forms 10-K, 10-Q and 8-K) or definitive proxy
statement of the Company filed with the Commission under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or mailed to stockholders and
(iii) from time to time, such other information concerning the Company as such
Agent may reasonably request. The Company also will furnish each Agent with
copies of any press release or general announcement to the general public, in
each case upon request by the Agent.
(i) The Company will, whether or not any sale of Program Securities is consummated, pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement and the reasonable fees and disbursements of Davis Polk & Wardwell, counsel for the Agents, in connection with the offering and sale of the Program Securities and will reimburse each
Agent for any expenses (including fees and disbursements of counsel) incurred by it in connection with the qualification of the Program Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as such Agent may designate and the printing of memoranda relating thereto and for any fees charged by investment rating agencies for the rating of the Program Securities. The Company will determine with the Agents the amount of advertising, if any, appropriate in connection with the solicitation of offers to purchase Program Securities and will pay, or reimburse the Agents for, all advertising expenses approved by it.
6. Conditions to Agents' Obligations. Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Company and your obligation to purchase Program Securities as principal pursuant to any Terms Agreement shall be subject to the continued accuracy in all material respects of the representations and warranties of the Company set forth herein, to the performance by the Company of its obligations hereunder and to each of the following additional conditions precedent:
(a) (i) No stop order suspending the effectiveness of the Registration Statement or suspending the qualification of the Indenture shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the Company or such Agent, shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities 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 Act and (B) no such organization shall have publicly announced that it has been placed under surveillance or review, or has changed its outlook with respect to, its rating of the Program Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(iii) The Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 433 under the Act).
(b) Subsequent to the date of this Agreement and any Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and that is, in the judgment of such Agent, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) Such Agent shall have received an opinion letter of Simpson Thacher & Bartlett LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the United States, in each case with full corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming that the Indenture is the valid and legally binding obligation of 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) This Agreement has been duly authorized, executed and delivered by the Company and 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 and subject to considerations of public policy.
(iv) The Unit Agreements and Warrant Agreements have been duly authorized by the Company and, when duly executed and delivered by the Company will be valid and legally binding obligations of the Company enforceable against the Company in accordance with their 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.
(v) The Notes have been duly authorized by the Company and, when the terms of the Notes and their issue and sale have been duly established in accordance with the Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Notes have been duly executed by the Company and duly authenticated by the Trustee in accordance with the provisions of the Indenture, and upon payment and delivery in accordance with this Agreement, the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be 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.
(vi) The Warrants have been duly authorized by the Company and, when the applicable Warrant Agreement has been duly executed and delivered by the Company and the terms of the Warrants and their issue and sale have been duly established in accordance with the applicable Warrant Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Warrants have been duly executed by the Company and duly countersigned by the Warrant Agent in accordance with the applicable Warrant Agreement, and upon payment and delivery in accordance with this Agreement, the Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be entitled to the benefits of the applicable Warrant Agreement, 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.
(vii) The Units have been duly authorized by the Company and, when the applicable Unit Agreement has been duly executed and delivered by the Company and the terms of the Units and their issue and sale have been duly established in accordance with the Unit Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Units have been duly executed by the Company and duly countersigned by the Unit Agent in accordance with the Unit Agreement, and upon payment and delivery in accordance with this Agreement, the Units will constitute valid and legally binding obligations of the Company enforceable against the Company in
accordance with their respective terms and entitled to the benefits of the Unit Agreement, 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.
(viii) The issue and sale of the Program Securities and the execution, delivery and performance by the Company of this Agreement, the Indenture, the Warrant Agreements and the Unit Agreement will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us 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 subsidiaries or any of their properties, except that it is understood that no opinion is given in this paragraph (viii) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(ix) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Program Securities and the compliance by the Company with the provisions of this Agreement and the Indenture, except that it is understood that no opinion is given in this paragraph (ix) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(x) The Registration Statement has become effective under the Act; and the Prospectus was filed on December 1, 2005 pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued or proceeding for that purpose or pursuant to Section 8A under the Act has been instituted or threatened by the Commission.
(xi) The statements made in the Prospectus under the captions "Description of Notes," "General Terms of the Notes," "Description of Debt Securities," "Description of Warrants" and "Description of Units,"
insofar as they purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects (subject to the insertion in the Notes, the Warrants and/or the Units of the maturity dates, interest rates and other similar terms thereof which are to be described in Term Sheets and Pricing Supplements to the Prospectus).
(xii) To such counsel's knowledge, 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.
(d) Such Agent shall have received a letter of Simpson Thacher & Bartlett LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that such counsel:
(i) advises you that each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared, on its face, to be appropriately responsive, in all material respects, to the requirements of the Act and the applicable rules and regulations of the Commission thereunder, except that in each case such counsel expresses no view with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act reports incorporated therein; and
(ii) nothing has come to such counsel's attention that causes such counsel to believe that the Registration Statement (including the documents incorporated by reference in the Registration Statement on file with the Commission on the date of this Agreement), as of the date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (including the documents incorporated by reference in the Prospectus), as of its date and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case such counsel expresses no belief with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act reports incorporated therein.
(e) Such Agent shall have received a certificate, dated the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, or any other Executive Officer of the Company named as an "executive officer" in the Company's most recent Annual Report on Form 10-K, in which such officer shall state, to the best of his or her knowledge after reasonable investigation, 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 hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or 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 in or contemplated by the Prospectus or as described in such certificate.
(f) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Board of Directors of the Company and such Agent, dated the Closing Date and satisfactory to such Agent, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act, the applicable Rules and Regulations and the standards of the Public Company Accounting Oversight Board (United States) (the "PCAOB"), and stating in effect that (i) in their opinion, the Company's consolidated financial statements audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange 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 certain officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) any material modifications should be made to the unaudited consolidated financial statements in the Prospectus for them to be in conformity with accounting principles generally accepted in the United States, (B) the unaudited consolidated financial statements in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the Rules and Regulations or are not stated on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus, (C) at the date of the latest available balance sheet read by such accounting firm, or at a subsequent specified date not more than five days prior to the Closing Date, there was any change in the Company's common stock, preferred stock, or long-term debt of the Company and its consolidated subsidiaries or any decrease in total stockholders' equity of the Company and its consolidated subsidiaries as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) 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 accounting firm 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.
(g) If the Closing Date is prior to the date of the Company's filing of its Annual Report on Form 10-K for the year ending December 31, 2005, such Agent shall have received a letter of KPMG LLP, addressed jointly to the Board of Directors of the Company and such Agent, dated the Closing Date and satisfactory to such Agent, confirming that they are an independent registered public accounting firm with respect to Bank One Corporation and its subsidiaries ("Bank One") within the meaning of the Act, the applicable Rules and Regulations and the standards of the Public Company Accounting Oversight Board (United States), and stating in effect that (i) in their opinion the consolidated financial statements audited 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 Bank One, inquiries of certain officials of the Company who have responsibility 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; or (B) any material modifications should be made to the first quarter unaudited condensed consolidated financial statements for the three-month periods ended March 31, 2004 and 2003 incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in Bank One's 2003 Annual Report to Stockholders which is included in the Company's Report on Form 8-K filed March 1, 2004, which is
incorporated by reference in the Registration Statement. 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.
(h) Such Agent shall have received from Davis Polk & Wardwell, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Program Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
Such opinion, dated as of such date, of Davis Polk & Wardwell, special tax counsel to the Company, shall further state that the statements set forth under the caption "United States Federal Taxation" in the Prospectus Supplement and under the caption "Forms of Securities Limitations on Issuance of Bearer Securities and Bearer Debt Warrants" in the Prospectus insofar as such statements relate to statements of law or legal conclusions under the laws of the United States or matters of United States law, fairly present the information called for and fairly summarize the matters referred to therein.
The opinions, certificates, letters and other documents required to be
delivered by this Section 6 shall be delivered at the office of Davis Polk &
Wardwell at 450 Lexington Avenue, New York, New York 10017, not later than 10:00
a.m., New York City time, on the date of this Agreement or at such later time
and date as may be mutually agreed by the Company and the Agents, which in no
event shall be later than the time at which the Agents commence solicitation of
purchasers of Program Securities hereunder, the time and date of such delivery
being herein called the "Closing Date". The Company will furnish each Agent with
such conformed copies of such opinions, certificates, letters and other
documents as it may reasonably request.
In the event that, after the Closing Date, the Company shall determine (x) to increase pursuant to and in accordance with the terms and provisions of the Indenture, the aggregate principal amount of the Program Securities that may be authenticated and delivered under the Indenture and/or (y) to register a portion of the Program Securities under a registration statement or registration statements in addition to the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 5(b), (f), (g), (h) and (i) hereof, (ii) not later than 10:00 a.m., New York City time, on the date on which any such supplements or amendments to the Prospectus or the Registration Statements, or any additional registration statements, shall be filed by the Company with the Commission under the Act and shall have been declared or deemed effective, or at such later time and date as shall be mutually agreed by the
Company and the Agents, deliver to each Agent and its counsel the opinions, certificates, letters and other documents required to be delivered pursuant to paragraphs (c), (d), (e) and (f), and if separate financial statements of Bank One are included or incorporated by reference in the Registration Statement and Prospectus (g) and (h) of this Section 6, and (iii) if applicable, deliver to each Agent a certificate, dated the date each of the other certificates delivered pursuant to clause (ii) are being delivered, executed by the Chairman of the Board, the President, any Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, any other Executive Officer of the Company, reaffirming each of the representations and warranties of the Company set forth in Section 2 with respect to any registration statement, any Free Writing Prospectus relating to the Program Securities and any prospectus included in such registration statement filed after the date hereof relating to the Program Securities.
For purposes of the documents required to be delivered pursuant to the preceding paragraph, the term "Registration Statement" shall be deemed to refer to the Registration Statement referred to in Section 2(a), together with any such additional registration statement or registration statements relating to the Program Securities, in each case as amended or supplemented; the term "Prospectus" shall refer to the Prospectus as so amended or supplemented; and the term "Closing Date" shall be deemed to refer to the date on which the requirements under the preceding paragraph are satisfied. As of and after the requirements of the preceding paragraph are satisfied, the foregoing terms shall be deemed to be so amended for all purposes of this Agreement.
In the case of Additional Agents, the conditions set forth in paragraphs
(c), (d), (e), (f) and (g) of this Section 6 shall be deemed satisfied by the
delivery to the Additional Agents of copies of the documents delivered pursuant
to such paragraphs on the Closing Date.
7. Additional Covenants of the Company. The Company agrees that:
(a) Each acceptance by the Company of an offer to purchase Program Securities shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects at the time of such acceptance and a covenant and an affirmation that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Program Securities relating to such acceptance as though made at and as of such time, it being understood that such representations and warranties shall relate to the Registration Statement, the Time of Sale Information and the Prospectus as amended or supplemented at such time.
(b) Promptly after the filing with the Commission of each amendment of or supplement to the Registration Statement or the Prospectus under the Act (other than (i) information filed or furnished to the Commission in a Current Report on Form 8-K (or any successor form thereto); (ii) an exhibit to the Registration Statement or Prospectus that does not relate to the Program
Securities; (iii) any amendment or supplement which relates only to the offering and sale of securities other than the Program Securities or which serves only to set forth, or reflect a change in, the terms of any Program Securities or the principal amount of Program Securities remaining to be sold or any similar information), the Company shall furnish each Agent with a certificate of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, or any other Executive Officer of the Company, dated the date of such amendment, supplement or filing to the same effect as the certificate referred to in Section 6(e), modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such certificate; provided, however, that the Company shall not be required during any period in which it has instructed each Agent to cease or each Agent has ceased soliciting offers to purchase Program Securities to furnish each Agent with such certificate, provided that the obligation of each Agent to begin thereafter to solicit offers to purchase Program Securities shall be subject to the delivery of such certificate dated the latest date on which the Company would, but for this proviso, have been required to furnish such certificate.
(c) Promptly after the filing with the Commission of each Quarterly Report
on Form 10-Q or Annual Report on Form 10-K of the Company, the Company shall
furnish each Agent requesting it with a written opinion of Simpson Thacher &
Bartlett LLP, counsel for the Company, or such other counsel as is acceptable to
each Agent, including in-house counsel, dated the date on which such Form 10-Q
or Form 10-K was filed with the Commission, to the effect set forth in Section
6(d) hereof, but modified as necessary to relate to the Registration Statement
and the Prospectus as amended or supplemented at such date; provided, however,
that in lieu of such opinion, such counsel may furnish each Agent with a letter
to the effect that such Agent may rely on a prior opinion delivered under
Section 6(d) or this Section 7(c) to the same extent as if it were dated the
date of such letter and the statements therein related to the Registration
Statement and the Prospectus as amended or supplemented at such date; provided
further, that the Company shall not be required during any period in which it
has instructed each Agent to cease or each Agent has ceased soliciting offers to
purchase Program Securities to furnish each Agent with such opinion or letter,
provided that the obligation of each Agent to begin thereafter to solicit offers
to purchase Program Securities shall be subject to the delivery of such opinion
or letter dated not earlier than the date of the most recent fiscal quarter end
if such delivery is so requested by the Agent.
(d) Within a reasonable time after each date on which the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information or any document that contains additional financial information, such as a Quarterly Report on Form 10-Q, shall be incorporated by reference into the Prospectus, the Company shall cause PricewaterhouseCoopers LLP or KPMG LLP, as the case may be, to furnish each Agent with a letter, addressed jointly to the Board of Directors of the Company
and the Agents and dated such date, substantially in the form attached hereto as Exhibit E; provided, however, that within a reasonable time after the filing with the Commission of each Annual Report of the Company on Form 10-K, the Company shall instead furnish each Agent with a letter addressed jointly to the Board of Directors of the Company and the Agents and dated such date, to the effect set forth in Section 6(f) or 6(g), as the case may be, insofar as Section 6(f) or 6(g), as the case may be, relates to such additional financial information; provided further, that the Company shall not be required during any period in which it has instructed each Agent to cease or each Agent has ceased soliciting offers to purchase Program Securities to furnish each Agent with either letter referred to above in this paragraph, provided that the obligation of each Agent to begin thereafter to solicit offers to purchase Program Securities shall be subject to the delivery of (i) such letter substantially in the form of Exhibit E with respect to the period commencing with the beginning of the first fiscal quarter following the date of the most recent Annual Report of the Company on Form 10-K and ending with the end of the most recent fiscal quarter or, if later, the period as to which the Company would, but for this proviso, be required to furnish such a letter and (ii) such letter to the effect set forth in Section 6(f) or 6(g), as the case may be, with respect to the most recent Annual Report of the Company on Form 10-K.
(e) In the event that the Company appoints an Additional Agent pursuant to
Section 3(c) of this Agreement, the Company shall cause PricewaterhouseCoopers
LLP or KPMG LLP, as the case may be, to deliver a letter addressed to the
Company and such Additional Agent (a "Reliance Letter") entitling such
Additional Agent to the benefits of any letter delivered by
PricewaterhouseCoopers LLP or KPMG LLP, as the case may be, pursuant to
paragraph (d) of this Section 7.
(f) In the event that the Company appoints an Additional Agent pursuant to
Section 3(c) of this Agreement, the Company shall furnish such Additional
Agent(s) requesting it with a written opinion of Simpson Thacher & Bartlett LLP,
counsel for the Company, or such other counsel as is acceptable to such
Additional Agent, to the effect set forth in Section 6(d) or Section 7(c)
hereof, but modified as necessary to relate to the Registration Statement and
the Prospectus as amended or supplemented at the date of the latest filing by
the Company of a Quarterly Report on Form 10-Q or Annual Report on Form 10-K;
provided, however, that in lieu of such opinion, such counsel may furnish each
Additional Agent with a letter to the effect that such Additional Agent may rely
on a prior opinion delivered under Section 6(d) or Section 7(c) to the same
extent as if it were dated the date of such Form 10-Q or Form 10-K filing and
the statements therein related to the Registration Statement and the Prospectus
as amended or supplemented at such date; provided further, that the Company
shall not be required during any period in which it has instructed each Agent to
cease or each Agent has ceased soliciting offers to purchase Program Securities
to furnish each Agent with such opinion or letter, provided that the obligation
of each Agent to begin thereafter to solicit offers to purchase Program
Securities
shall be subject to the delivery of such opinion or letter dated not earlier than the date of the most recent fiscal quarter end if such delivery is so requested by the Agent.
(g) The Company agrees to offer to any person who shall have agreed to purchase Program Securities (including any Agent that has agreed to purchase Program Securities pursuant to Section 4 hereof) the right not to purchase such Program Securities if, on the Settlement Date for such purchase, the conditions set forth in Sections 6(a) and (b), or either of them, shall not be satisfied.
(h) The Company will, pursuant to reasonable procedures developed in good faith, retain for a period of not less than three years copies of each Free Writing Prospectus and other Time of Sale Information that is not filed with the Commission in accordance with Rule 433 under the Act and maintain records regarding the timing of the delivery of all applicable Time of Sale Information.
(i) The Company will at all times use its best efforts to comply with the disclosure requirements under the Act and Exchange Act relating to its status as a "well-known seasoned issuer", as defined in Rule 405 of the Act, which efforts will include the filing of all reports and materials set forth in section 1(i) of the definition of Ineligible Issuer as defined in Rule 405 of the Act. The Company will notify the Agents in writing promptly after learning of any event or circumstance that may affect its status as a "well-known seasoned issuer."
(j) The Company will pay any filing fees required by Rule 457 of the Act in connection with filing Time of Sale Information and each Free Writing Prospectus, by the times required under the Act.
(k) The Company agrees that any other security that is added to the Program Securities by post-effective amendment to the Registration Statement shall be duly authorized by the Company. The Company shall provide to Agents officers' certificates or opinions of counsel or comfort letters relating to such security as the Agents may reasonably request.
8. Certain Agreements of the Agents. Each Agent hereby represents and agrees that:
(a) it has not and will not use, authorize use of, refer to, or participate in the planning for the use of, any Free Writing Prospectus, as defined in Rule 405 under the Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a Free Writing Prospectus that contains no "issuer information" (as defined in Rule 433(h)(2) under the Act) that was not included in a previously filed Free Writing Prospectus or in the Prospectus, (ii) any Free Writing Prospectus prepared pursuant to Section 5(a) above, or (iii) any issuer or underwriter Free Writing Prospectus approved by the Company in advance in writing;
(b) it will, pursuant to reasonable procedures developed in good faith,
take steps to ensure that any Free Writing Prospectus referred to in clause
(a)(i) above will not be subject to broad unrestricted dissemination;
(c) it will not, without the prior written consent of the Company, use any Free Writing Prospectus that contains the final terms of the Program Securities unless such terms have previously been included in a Free Writing Prospectus filed with the Commission or otherwise made reasonably available to the purchasers of Program Securities;
(d) it will retain copies of each Free Writing Prospectus used or referred to by it and all other Time of Sale Information, in accordance with Rule 433 under the Act;
(e) it is not subject to any pending proceeding under Section 8A of the Act with respect to any offering of Program Securities (and will promptly notify the Company if any such proceeding against it is initiated during such period of time after the first date of the public offering of the Program Securities as in the opinion of counsel for the Agents a prospectus relating to the Program Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Act) in connection with sales of the Program Securities by any Agent or dealer); and
(f) it shall, pursuant to Rule 173 of the Act, provide, or cause its selected dealers to provide, purchasers of Program Securities a notice required thereby two business days following the completion of the sale.
9. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Agent and each person, if any, who controls any Agent within the meaning of the Act against any losses, claims, damages or liabilities, joint or several, to which such Agent 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 Statement or the Prospectus (or in any amendment or supplement thereto), any applicable Free Writing Prospectus or any applicable Time of Sale Information relating to the Program Securities, 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, as such expenses are incurred, reimburse each Agent and each such controlling person for any legal or other expenses reasonably incurred by such Agent 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 to an Agent or person controlling such Agent 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 such Agent 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 Time of Sale Information relating to the Program Securities, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Agent (or to the benefit of any person controlling such Agent) from whom the person asserting any such losses, claims, damages or liabilities purchased the applicable Program Securities, to the extent that any such loss, claim, damage or liability of such Agent or such controlling person results from the fact that a copy of any subsequent Time of Sale Information (which did not contain any such untrue statement or omission or alleged untrue statement or omission) was delivered to such Agent by the Company on a timely basis enabling such Agent so to send, give or make available a copy of such subsequent Time of Sale Information in accordance with such Agent's customary procedures. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) Each Agent will indemnify and hold harmless the Company, each of its directors, each of its officers who 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 or the Prospectus (or in any amendment or supplement thereto), any Free Writing Prospectus or any Time of Sale Information relating to the Program Securities, 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 in conformity with written information furnished to the Company by such Agent specifically for use therein; and will, as such expenses are incurred, 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 Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 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 subsection (a) or (b) above, 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 subsection (a) or (b) above. In case any such action is brought against any indemnified party, and it notifies 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 9 for any legal or other expenses subsequently incurred by such indemnifying 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 for liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by the Company on the one hand and any Agent on the other from the offering by it pursuant to this Agreement of the Program Securities that are the subject of the action (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, as well as any other relevant equitable considerations. The Company and the Agents agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. Notwithstanding the provisions of this subsection (d), no Agent shall be required to contribute any amount in excess of the amount by which the commissions or underwriting discounts received by such Agent relating to the Program Securities that are the subject of the action and which were distributed to the public through it pursuant to this Agreement or upon resale of Program Securities purchased by it from the Company exceed the amount of any damages that such Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The Agents' obligations to contribute are several in proportion to their respective obligations hereunder and are not joint.
10. Status of Each Agent. In soliciting offers to purchase Program Securities pursuant to this Agreement and in performing its other obligations hereunder, each Agent is acting individually and not jointly with the other Agents and, except as contemplated by Section 4, is acting solely as agent for the Company and not as principal. Each Agent will make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Program Securities from the Company has been solicited by such
Agent and accepted by the Company, but shall have no liability to the Company in the event any such purchase is not consummated. If the Company shall default in the performance of its obligation to deliver Program Securities to a purchaser whose offer it has accepted, the Company shall (i) hold each Agent harmless against any loss, claim or damage arising from or as a result of such default and (ii) pay to each Agent any commission to which it would have been entitled had such Program Securities been delivered.
11. Survival of Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and the Agents set forth in or made pursuant to this Agreement or any Terms Agreement, as the case may be, 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 Agent, the Company or any of their respective representatives, officers or directors or any controlling person and will survive delivery of and payment for the Program Securities. If this Agreement or any Terms Agreement is terminated pursuant to Section 12 or for any other reason, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5(i) to the extent actually incurred by or committed to by an Agent to the date of such termination, the obligations of the Company pursuant to Section 5(c) shall remain in effect until the settlement of all pending deliveries of and payment for securities and the respective obligations of the Company and the Agents pursuant to Section 9 and the obligations of the Company pursuant to Section 5(e) shall remain in effect.
12. Termination. (a) The Company may elect to suspend or terminate the offering of Program Securities under this Agreement at any time. The Company also (as to any one or more of the Agents) or any Agent (as to itself) may terminate the appointment and arrangements described in this Agreement. Such actions may be taken, in the case of the Company, by giving prompt written notice of suspension to all of the Agents and by giving not less than one day's written notice of termination to all of the Agents, or, in the case of an Agent, by giving not less than one day's written notice of termination to the Company. The provisions of Sections 5(c), 5(e), 5(i), 9, and 11 hereof shall survive any termination of this Agreement.
(b) Any Terms Agreement executed pursuant to Section 4(a) of this Agreement shall be subject to termination, by notice given to the Company prior to delivery of and payment for all the Program 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 shall have been declared by Federal or New York 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 judgment of JPMSI, made it impracticable to market the Program Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information, any Free Writing Prospectus and the Prospectus. The provisions of Sections 5(c), 5(e), 5(i), 9 and 11 hereof shall survive any termination of the Terms Agreement.
(c) For the avoidance of doubt, in the event of termination of this Agreement or any Terms Agreement with respect to any Agent, such Agent shall not receive any compensation except in connection with a purchase by it of Program Securities actually consummated, provided that the foregoing shall in no way limit the provisions of Section 9, and that reimbursement by the Company to an Agent of out-of-pocket accountable expenses actually incurred by such Agent and to which such Agent is otherwise entitled as provided herein shall not be prohibited.
13. Offering Restrictions. If any Program Securities are to be offered outside the United States, you will not offer or sell any such Program Securities in any jurisdiction if such offer or sale would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such offer or sale by you or for or on behalf of the Company unless such consent, approval or permission has been previously obtained. Subject to the obligations of the Company set forth in Section 5 of this Agreement, the Company shall have no responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
14. Notices. Except as otherwise provided herein, all notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Company shall be directed to it at 270 Park Avenue, New York, New York 10017, Attention: Office of the Secretary (facsimile No. (212) 270-2966) and notices to any Agent shall be directed to it at the address set forth in Exhibit A hereto.
15. Governing Law; Counterparts. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. This Agreement may be executed in counterparts and the executed counterparts shall together constitute a single instrument.
16. Modification. No amendment, modification, supplement or waiver in respect of this Agreement will be effective unless pursuant to an instrument in writing and signed by each of the parties to be bound hereby.
17. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement.
[Signatures Follow]
JPMORGAN CHASE & CO.
By: /s/ Louis M. Morrell
------------------------
Name: Louis M. Morrell
Title: Managing Director
J.P. MORGAN SECURITIES INC.
By: /s/ Michael Camacho
----------------------
Name: Michael Camacho
Title: Managing Director
|
EXHIBIT A
Agent
J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Attention: Transaction Execution Group, 7th Floor (facsimile No. (212) 834-6702)
EXHIBIT B
JPMORGAN CHASE & CO.
Global Medium-Term Notes, Series E
Global Warrants, Series E
Global Units, Series E
FORM OF AGENT ACCESSION LETTER
[date]
[Name of Agent]
[Address of Agent]
Ladies and Gentlemen:
JPMorgan Chase & Co., a Delaware corporation (the "Company"), has previously entered into a Master Agency Agreement dated December 1, 2005 (the "Master Agency Agreement"), among the Company and the other agents signatory thereto (the "Existing Agents"), with respect to the issue and sale from time to time by the Company of up to $4,000,000,000 less the initial public offering price of any securities previously issued under the Registration Statement (or the equivalent thereof in one or more currencies other than U.S. dollars) aggregate initial public offering price of its Global Medium-Term Notes, Series E, due more than nine months from the date of issue (the "Notes"), its Global Warrants, Series E (the "Warrants") and its Global Units, Series E (the "Units" and, together with the Notes and the Warrants, and any other securities that may be offered by post-effective amendment to the Registration Statement, the "Program Securities"). The Notes will be issued either alone or as part of a Unit under the Indenture dated as of May 25, 2001, between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the "Trustee") (as may be supplemented or amended from time to time, the "Indenture"). The Master Agency Agreement permits the Company to appoint one or more additional persons to act as agent with respect to the Program Securities, on terms substantially the same as those contained in the Master Agency Agreement. A copy of the Master Agency Agreement, including the Procedures with respect to the issuance of the Program Securities attached thereto as Exhibit C, is attached hereto.
In accordance with Section 3(c) of the Master Agency Agreement we hereby confirm that, with effect from the date hereof, you shall become a party to, and an Agent under, the Master Agency Agreement, vested with all the authority, rights and powers, and subject to all duties and obligations of an Agent as if originally named as such under the Master Agency Agreement.
You represent and warrant that you are actually engaged in the investment banking or securities business and that you are a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD"). You agree that in making sales of Program Securities, you will comply with all applicable rules of the NASD, including without limitation, Rules 2720(l) and 2740 of the Conduct Rules of the NASD (the "Rules"). You represent and warrant that you are fully familiar with the above provisions of the Rules. You further represent, by your participation in an offering of the Program Securities, that you have provided to us all documents and other information required to be filed with respect to you, any related person or any person associated with you or any such related person pursuant to Section (b)(6) of NASD Rule 2710 (the "Financing Rule") as such requirements relate to such offering, including, but not limited to information with respect to (x) any arrangement during the period beginning 180 days immediately preceding the required filing date of an offering and through the pricing date (the "Survey Period"), which arrangement provides for the receipt of any item of value or the transfer of any warrants, options, or other securities from the Company to you or your related person(s), (y) any acquisitions of unregistered equity securities of the Company by you or your related person(s) during the Survey Period, or (z) any new arrangement that provides for the receipt of any additional item of value by you or your related person(s) between the pricing date of an offering and the date ending 90 days immediately thereafter. Terms used in clauses (x), (y) and (z) of the previous sentence and not otherwise defined shall have the respective meanings given to them in the Financing Rule.
You represent that you understand the requirements of NASD Notice-to-Members 88-101 relating to participation by NASD members in shelf offerings. You agree that, in connection with any purchase of securities from us that is not otherwise covered by the terms of this letter, if a selling concession, discount or other allowance is granted to you, you will comply with Rule 2740 of the NASD Conduct Rules.
You agree that in selling Program Securities pursuant to any offering (which agreement shall also be for the benefit of the Company or other seller of such Program Securities) you will comply with all applicable rules and regulations, including the applicable provisions of the Act and the Exchange Act, the applicable rules and regulations of the Commission thereunder, the applicable rules and regulations of the NASD, the applicable rules and regulations of any securities exchange having jurisdiction over the offering, including Rule 15c2-8 of the Exchange Act, NASD Rule 2310, NYSE Rule 405 and any other laws, rules or regulations regarding distribution of Prospectuses, suitability or diligence to accounts.
Except as otherwise expressly provided herein, all terms used herein which are defined in the Master Agency Agreement shall have the same meanings as in the Master Agency Agreement. Your obligation to act as Agent hereunder shall be subject to you having received copies of the most recent documents (including any prior documents referred to therein) previously delivered to the Existing Agents pursuant to Sections 6 and 7 of the Master Agency Agreement. By your signature below, you confirm that such documents are to your satisfaction. For purposes of Section 14 of the Master Agency Agreement, you confirm that your notice details are as set forth immediately beneath your signature.
Each of the parties to this letter agrees to perform its respective duties and obligations specifically provided to be performed by each of the parties in accordance with the terms and provisions of the Master Agency Agreement and the Procedures, as amended or supplemented hereby.
Notwithstanding anything in the Master Agency Agreement to the contrary,
the obligations of each of the Existing Agents and the Additional Agent(s) under
Section 9 of the Master Agency Agreement are several and not joint, and in no
case shall any Existing Agent or Additional Agent (except as may be provided in
any agreement among them) be responsible under Section 9(d) to contribute any
amount in excess of the commissions received by such Existing Agent or
Additional Agent from the offering of the Program Securities.
This Agreement shall be governed by the laws of the State of New York. This Agreement may be executed in one or more counterparts and the executed counterparts taken together shall constitute one and the same agreement.
If the foregoing correctly sets forth the agreement among the parties hereto, please indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
JPMORGAN CHASE & CO.
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written
[Insert name of Additional Agent and information pursuant to Section 14 of the Master Agency Agreement]
EXHIBIT C
JPMORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES E
GLOBAL WARRANTS, SERIES E
GLOBAL UNITS, SERIES E
ADMINISTRATIVE PROCEDURES
December 1, 2005
The offering of Global Medium-Term Notes, Series E, due more than nine months from the date of issue (the "Notes"), Global Warrants, Series E (the "Warrants") and Global Units, Series E (the "Units" and, together with the Notes and the Warrants and any other securities that may be offered by post-effective amendment to the Registration Statement referred to below, the "Program Securities") are to be offered on a continuing basis by JPMorgan Chase & Co. (the "Company"). Pursuant to the Company's Master Agency Agreement dated December 1, 2005 (the "Master Agency Agreement") between the Company and the Agents to which these administrative procedures are attached as an exhibit, certain firms and corporations (each an "Agent" and collectively the "Agents") have agreed, as agents of the Company, to solicit purchases of the Program Securities issued in fully registered form. The Program Securities are being sold by the Company to the Agents pursuant to the Master Agency Agreement and, if applicable, one or more terms agreements substantially in the form attached to the Master Agency Agreement as Exhibit D, D-1, and D-2 (each a "Terms Agreement"). The Program Securities have been registered with the Securities and Exchange Commission (the "Commission"). The Notes will be issued, either alone or as part of a Unit, under the Indenture dated as of May 25, 2001, as amended from time to time, (as may be supplemented or amended from time to time, the "Indenture"), between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) ("Deutsche Bank"), as trustee (the "Trustee"). Capitalized terms not otherwise defined in these Procedures shall have the meanings ascribed to them in the Master Agency Agreement.
The Warrants will be issued, either alone or as part of a Unit, pursuant to the provisions of a Warrant Agreement between the Company and a warrant agent to be appointed by the Company, substantially in the form of one of the agreements filed as an exhibit to the Registration Statement referred to below (each a "Warrant Agreement").
The Units will be issued pursuant to a Unit Agreement among the Company and a unit agent to be appointed by the Company substantially in the form of the agreement filed as an exhibit to the Registration Statement (each a "Unit Agreement"). Units may include one or more (i) Notes, (ii) Warrants or (iii) any combination thereof. The applicable Term Sheet will specify whether the Notes and/or Warrants comprised by a Unit may or may not be separated from the Unit.
Program Securities other than Notes, Warrants, Units or any combination thereof, whether issued alone or as part of a Unit, will have the terms as set forth in supplements to the Prospectus and Term Sheets.
JPMorgan Chase Bank, National Association ("JPMorgan Chase Bank") will be the Registrar, Transfer Agent, Authenticating Agent and Paying Agent for the Notes, and will perform the duties specified herein. For the purposes of these Administrative Procedures, JPMorgan Chase Bank shall also refer to any designee of JPMorgan Chase Bank under the Paying Agent, Registrar, Transfer Agent and Authenticating Agreement. Each Note, each Warrant and each Unit will be represented by, in the case of the Notes, a Global Note, in the case of the Warrants, a Global Warrant, and in the case of the Units, a Global Unit (each as defined below) delivered to JPMorgan Chase Bank, as agent for The Depository Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC (in the case of a Note, a "Book-Entry Note," in the case of a Warrant, a "Book-Entry Warrant," and, in the case of a Unit, a "Book-Entry Unit"). Each Note or Warrant or other Program Security which may be included in any Unit will be issued in the corresponding global form. Except as set forth in the Indenture, in the case of Notes, any Warrant Agreement, in the case of Warrants or any Unit Agreement, in the case of Units, an owner of a Book-Entry Note, Book-Entry Warrant or Book-Entry Unit (or of any Note or Warrant included in such Book-Entry Unit), as the case may be, will not be entitled to receive a Certificated Note (including with respect to a Book-Entry Note included in a Book-Entry Unit), a Certificated Warrant (including with respect to a Book-Entry Warrant included in a Book-Entry Unit) or a Certificated Unit.
The procedures to be followed during, and the specific terms of, the solicitation of orders by the Agents and the sale as a result thereof by the Company are explained below. The Company will advise the Agents and JPMorgan Chase Bank in writing of those persons handling administrative responsibilities with whom the Agents and JPMorgan Chase Bank are to communicate regarding orders to purchase the Program Securities and the details of their delivery.
Administrative procedures and specific terms of the offering are explained below. Book-Entry Notes, Book-Entry Warrants and Book-Entry Units, which may be payable in either U.S. dollars or other specified currencies, will be issued in accordance with the administrative procedures set forth herein as they may subsequently be amended as the result of changes in DTC's operating procedures. Unless otherwise defined herein, terms defined in the Indenture, any Warrant Agreement, the Unit Agreement, the Notes, the Warrants and the Units shall be used herein as therein defined. The Company will advise the Agent in writing of the employees of the Company with whom the Agent is to communicate regarding offers to purchase Program Securities and the related settlement details. To the extent the procedures set forth below conflict with the provisions of the Program Securities, the Indenture, any Warrant Agreement, the Unit Agreement, DTC's operating requirements or the Master Agency Agreement, the relevant provisions of the Program Securities, the Indenture, any Warrant Agreement, the Unit Agreement, DTC's operating requirements and the Master Agency Agreement shall control.
ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES, BOOK-ENTRY
WARRANTS AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes, Book-Entry Warrants or Book-Entry Units for eligibility in the book-entry system maintained by DTC, JPMorgan Chase Bank will perform the custodial, document control and administrative functions described below. JPMorgan Chase Bank will perform such functions in accordance with (i) its obligations under a Letter of Representations from the Company to DTC dated as of May 23, 2002, and (ii) its obligations as a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: Unless otherwise specified in any Prospectus, Time
of Sale Information or Free Writing Prospectus on
any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, one or more Book-Entry Warrants or one or
more Book-Entry Units, the Company will issue, in
the case of the Notes, a single global Note in
fully registered form without coupons (a "Global
Note") representing up to U.S. $500,000,000
principal amount of all such Notes that have the
same Original Issue Date, Maturity Date and other
terms, and, in the case of the Warrants, a single
global Warrant in fully registered form (a "Global
Warrant"), with a notional amount of up to U.S.
$500,000,000 that have the same Exercise Price,
Exercise Date, Exercise Period, Expiration Date
and other terms, and in the case of Units, a
single global unit in fully registered form (a
"Global Unit"), representing up to U.S.
$500,000,000 face amount that have the same
Original Issue Date and that otherwise comprise
the same securities and have the same terms. Each
Global Note and each Global Warrant, whether
issued alone or as part of a Unit, will be dated
and issued as of the date of its authentication,
or countersignature as the case may be, by
JPMorgan Chase Bank and each Global Unit will be
dated and issued as of the date of the issuances
of the other securities comprised by such Unit.
Each Global Note, whether issued alone or as part
of a Unit, will bear an "Interest Accrual Date,"
which will be (i) with respect to an original
Global Note (or any portion thereof), its original
issuance date and (ii) with respect to any Global
Note (or any portion thereof) issued subsequently
upon exchange of a Global Note, or in lieu of a
destroyed, lost or
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stolen Global Note, the most recent Interest
Payment Date to which interest has been paid or
duly provided for on the predecessor Global Note
or Notes (or if no such payment or provision has
been made, the original issuance date of the
predecessor Global Note), regardless of the date
of authentication of such subsequently issued
Global Note. Book-Entry Notes, Book-Entry Warrants
and Book-Entry Units may be payable in either U.S.
dollars or other specified currencies. No Global
Note, Global Warrant or Global Unit will
represent, any Certificated Note, Certificated
Warrant or Certificated Unit, as the case may be.
Preparation of Term Sheet: If any order to purchase a Book-Entry Note,
Book-Entry Warrant or Book-Entry Unit is accepted
by or on behalf of the Company, the Company will
prepare a preliminary or final term sheet (a "Term
Sheet") reflecting the terms of such Note, Warrant
or Unit. The Company (i) will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such Term
Sheet with the Commission as required by Rule 433
under the Securities Act, and with respect to the
Term Sheet setting forth the final terms of the
Book-Entry Note, Book-Entry Warrant or Book-Entry
Unit, as applicable, in accordance with the
applicable paragraph of Rule 424(b) under the
Securities Act and (ii) will, as soon as possible
and in any event not later than the date on which
such Term Sheet is filed with the Commission,
deliver the number of copies of such Term Sheet to
the Agent as the Agent shall request. The Agent
will cause such Term Sheet to be delivered, or
otherwise made available, to the purchaser of the
Note, Warrant or Unit.
In each instance that a Term Sheet is prepared,
the Agent will affix the Term Sheet to
Prospectuses, product supplements and any other
Time of Sale Information prior to their use.
Outdated Term Sheets, and the Prospectuses and
product supplements and any other Time of Sale
Information to which they are attached (other than
those retained for files), will be destroyed.
Note Maturities: Each Book-Entry Note will mature on a date not
less than nine months or more than thirty years
after
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the Original Issue Date for such Note.
Denominations: Unless otherwise specified in the applicable Term
Sheet, Book-Entry Notes will be issued in
principal amounts of U.S. $1,000 or any amount in
excess thereof that is an integral multiple of
U.S. $1,000 or, if such Book-Entry Notes are
issued in a currency other than U.S. dollars,
principal amounts of such currency in
denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units of
such currency), unless otherwise indicated in the
applicable Term Sheet. Global Notes, Global
Warrants and Global Units will be denominated in,
in the case of Global Notes, principal amounts not
in excess of U.S. $500,000,000, in the case of
Global Warrants, in aggregate notional amounts not
to exceed U.S. $500,000,000, and, in the case of
Global Units, in aggregate face amounts not to
exceed U.S. $500,000,000. If one or more
Book-Entry Notes having an aggregate principal
amount in excess of U.S. $500,000,000, or one or
more Book-Entry Warrants having an aggregate
notional amount in excess of U.S. $500,000,000, or
one or more Book-Entry Units having an aggregate
face amount in excess of U.S. $500,000,000 would,
but for the preceding sentence, be represented by
a single Global Note, Global Warrant or Global
Unit, as the case may be, then one Global Note
will be issued to represent each U.S. $500,000,000
principal amount of such Book-Entry Note or Notes,
one Global Warrant will be issued to represent
each aggregate notional amount of U.S.
$500,000,000 of such Book-Entry Warrant or
Warrants, and one Global Unit will be issued to
represent each aggregate face amount of U.S.
$500,000,000 of such Book-Entry Unit or Units and
an additional Global Note, Global Warrant or
Global Unit, will be issued to represent any
remaining principal amount of such Book-Entry Note
or Notes, aggregate notional amount of such
Book-Entry Warrant or Warrants or aggregate face
amount of such Book-Entry Unit or Units. In such a
case, each of the Global Notes, Global Warrants or
Global Units representing such Book-Entry Note or
Notes, such Book-Entry Warrant or Warrants, or
such Book-Entry Unit or Units, as the case may be,
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shall be assigned the same CUSIP number.
Delivery of Subject to "Suspension of Solicitation; Amendment
Confirmation and or Supplement" below, each Agent and participating
Prospectus, Product dealer, pursuant to the terms of the Master Agency
Supplement and Term Agreement and as herein described, will cause to
Sheet to Purchaser be delivered, or otherwise made available, a copy
by each Agent: of the Prospectus, including the applicable
product supplement and Term Sheet, to each
purchaser of Program Securities from such Agent or
Dealer.
For each offer to purchase a Program Security
solicited by any Agent and accepted by or on
behalf of the Company, such Agent or a
broker-dealer that has executed a selected dealer
agreement with such Agent will provide a
confirmation to the purchaser, setting forth the
details described above and delivery and payment
instructions, as well as the notice of allocation
information required by Rule 173 under the
Securities Act within 2 days after the terms of
the Program Securities become final.
In addition, such Agent will deliver to purchasers
of the Program Securities the Prospectus, product
supplement, Term Sheet and any other Time of Sale
Information, in relation to such Program Security
to any purchaser of the Program Securities who so
requests.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the Master
Amendment or Agency Agreement, the Company may instruct the
Supplement: Agents to suspend at any time, for any period of
time or permanently, the solicitation of orders to
purchase Book-Entry Notes, Book-Entry Warrants or
Book-Entry Units. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation until such time as the Company has
advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any
orders outstanding for settlement, the Company
will promptly advise the Agents and JPMorgan Chase
Bank whether such orders may be settled and
whether copies of the Prospectus as in effect at
the
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time of the suspension, together with the
appropriate product supplement, Term Sheet or any
other Time of Sale Information, may be delivered
in connection with the settlement of such orders.
The Company will have the sole responsibility for
such decision and for any arrangement that may be
made in the event that the Company determines that
such orders may not be settled or that copies of
such Prospectus, product supplement, Term Sheet or
any other Time of Sale Information, may not be so
delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Master
Agency Agreement) or the Prospectus or any product
supplement, Term Sheet or any other Time of Sale
Information, it will promptly advise the Agents
and furnish the Agents with the proposed amendment
or supplement and with such certificates and
opinions as are required, all to the extent
required by and in accordance with the terms of
the Master Agency Agreement. Subject to the
provisions of the Master Agency Agreement, the
Company may file with the Commission any such
supplement or any product supplement to the
Prospectus relating to the Program Securities. The
Company will provide the Agents and JPMorgan Chase
Bank with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note,
a Book-Entry Warrant or a Book-Entry Unit and, in
the case of the Note, the authentication and
issuance of the Global Note representing such
Note, in the case of the Warrant, the
countersigning and issuance of the Global Warrant
representing such Warrant or, in the case of the
Unit, the completion and issuance of the Global
Unit representing such Unit (and of each security
comprised by such Unit) shall constitute
"settlement" with respect to such Note, Warrant or
Unit, as the case may be. All orders accepted by
the Company will be settled on the third Business
Day pursuant to the timetable for settlement set
forth below unless the Company and
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the purchaser agree to settlement on another day
as set out in the applicable Prospectus, Time of
Sale Information or Free Writing Prospectus, which
shall be no earlier than the next Business Day.
Settlement Procedures: Unless otherwise specified in any Prospectus, Time
of Sale Information or Free Writing Prospectus,
settlement procedures with regard to each
Book-Entry Note, each Book-Entry Warrant and each
Book-Entry Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant to
a Terms Agreement), shall be as follows:
A. In the case of a Book-Entry Note (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of
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the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the Interest Rate, whether such Note will pay interest annually or semiannually and whether such Note is an Amortizing Note, and, if so, the amortization schedule, or, in the case of a Floating Rate Book-Entry Note, the Initial Interest Rate (if known at such time), Interest Payment Date(s), Interest Payment Period, Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum Interest Rate (if any) and the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Ranking.
6. Settlement date and time (Original Issue Date).
7. Interest Accrual D ate.
8. Price.
9. Agent's commission, if any.
10. Specified Currency.
11. Whether the Note is an Original Issue Discount Note (an "OID Note"), and if it is an OID Note, the applicability of Modified Payment upon Acceleration (and, if so, the Issue Price).
12. Whether the Note is a Renewable Note, and if it is a Renewable Note, the Initial Maturity Date, the Final Maturity Date, the Election Dates and the Maturity Extension Dates.
13. Whether the Company has the option to reset the Spread or Spread Multiplier of the Note.
14. Whether the Note is an Optionally Exchangeable Note, a Mandatorily Exchangeable Note, or any form of exchangeable Note.
15. Any other applicable provisions.
B. In the case of a Book-Entry Warrant (whether issued alone or as part of a Unit), the Agent will advise the Company by telephone that such Warrant is a Book-Entry Warrant and of the following settlement information:
1. Designation of the Series of Warrants:
[Call][Put] Warrants.
2. Warrant Property.
3. Aggregate Number of Warrants.
4. Price to Public.
5. Warrant Exercise Price.
6. Agent's commission, if any.
7. Dates upon which Warrants may be exercised.
8. Expiration Date.
9. Form.
10. Currency in which exercise payments shall be made.
11. Minimum number of Warrants exercisable by any holder on any day.
12. Maximum number of Warrants exercisable on any day: [In the aggregate] [By any beneficial owner].
13. Formula for determining Cash Settlement Value.
14. Exchange Rate (or method of calculation).
15. Whether the Company or the holder is the writer of the Warrant.
16. Any other applicable provisions.
C. In the case of a Book-Entry Unit, the Agent will advise the Company by telephone that such Unit is a Book-Entry Unit, of the information set forth in Settlement Procedures "A" above with respect to any Book-Entry Notes that constitute a part of such Book-Entry Unit, of the information set forth in Settlement Procedures "B" above with respect to any Book-Entry Warrants that constitute a part of such Book-Entry Unit and of the following information:
1. Face Amount.
2. Agent's commission, if any
3. Designation of the Securities comprised by such Units:
a. Notes (See Settlement Procedures "A" ) and
b. Warrants (See Settlement Procedures "B").
4. Whether, and the terms under which, the Securities comprised by such Unit will be separately tradeable.
5. Any other provisions applicable to the Unit (other than those provisions applicable to the securities comprised by such Unit).
D. The Company will advise JPMorgan Chase Bank by telephone or electronic transmission (confirmed in writing at any time on the same date) of the information set forth in "Settlement Procedures" "A," "B" and "C" above, as applicable, such advice to contain a representation as to the aggregate offering price of Program Securities permitted to be issued hereunder after such issuance. JPMorgan Chase Bank will then assign a CUSIP number to the Global Note representing a Note, whether issued alone or as part of a Unit, and will notify the Company and the Agent of such CUSIP number(s) by telephone as soon as practicable, except that for Optionally Exchangeable and Mandatorily Exchangeable Notes the Agent will obtain a CUSIP number for the Global Note representing such Note and will notify the Company and JPMorgan Chase Bank of such CUSIP number(s) by telephone as soon as practicable. The Agent will obtain a CUSIP number for (i) the Global Warrant representing a Warrant, whether issued alone or as part of a Unit, and (ii) the Global Unit representing a Unit, and, in each case will notify the Company and JPMorgan Chase Bank of such CUSIP number(s) by telephone as soon as practicable.
E. JPMorgan Chase Bank will enter a pending deposit message through DTC's Participant Terminal System, providing the following settlement information to DTC, the Agent and Standard & Poor's Corporation:
1. The information set forth in "Settlement Procedure" "A," "B" and "C" above, as applicable.
2. The Initial Interest Payment Date for the Notes, whether issued alone or as part of a Unit, the number of days by
which such date succeeds the related DTC Record Date and, if known, the amount of interest payable on such Initial Interest Payment Date.
3. The CUSIP number of the Global Note (whether issued alone or as part of a Unit), Global Warrant (whether issued alone or as part of a Unit) and Global Unit, as applicable.
4. Whether the Global Note, Global Warrant or Global Unit will represent any other Book-Entry Note, Book-Entry Warrant or Book-Entry Unit, as the case may be (to the extent known at such time).
5. The number of Participant accounts to be maintained by DTC on behalf of the Agent and JPMorgan Chase Bank.
F. JPMorgan Chase Bank will, as applicable, authenticate, complete and deliver the Global Note representing the Note, countersign and deliver the Global Warrant representing the Warrant, and complete the Global Unit representing the Unit (including, as applicable, by authenticating, completing and delivering any Global Note or by countersigning and delivering any Global Warrant included in such Unit).
G. DTC will credit such Note, Warrant or Unit to JPMorgan Chase Bank's participant account at DTC.
H. JPMorgan Chase Bank will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
the Note, Warrant or Unit, as the case may
be, to JPMorgan Chase Bank's participant
account and credit such Note, Warrant or
Unit to the Agent's participant account and
(ii) debit the Agent's settlement account
and credit JPMorgan Chase Bank's settlement
account for an amount equal to the price of
such Note, Warrant or Unit, as the case may
be, less the Agent's
commission, if any. The entry of such a deliver order shall constitute a representation and warranty by JPMorgan Chase Bank to DTC that the Global Note representing a Book-Entry Note has been issued and authenticated, the Global Warrant representing a Book-Entry Warrant has been countersigned and delivered, or a Global Unit representing a Book-Entry Unit has been completed.
I. Unless the Agent is the end purchaser of a
Note, Warrant or Unit, the Agent will enter
an SDFS deliver order through DTC's
Participant Terminal System instructing DTC
(i) to debit such Note, Warrant or Unit to
the Agent's participant account and credit
such Note, Warrant or Unit to the
participant accounts of the Participants
with respect to such Note, Warrant or Unit
and (ii) to debit the settlement accounts of
such Participants and credit the settlement
account of the Agent for an amount equal to
the price of such Note, Warrant or Unit.
J. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures "H" and "I" will be settled in accordance with SDFS operating procedures in effect on the settlement date.
K. JPMorgan Chase Bank will credit to the account of the Company maintained at JPMorgan Chase Bank, New York, New York, in funds available for immediate use in the amount transferred to JPMorgan Chase Bank in accordance with "Settlement Procedure" "H".
L. Unless the Agent is the end purchaser of the Note, Warrant or Unit, the Agent will confirm the purchase of such Note, Warrant or Unit to the purchaser either by transmitting to the Participants with respect to such Note, Warrant or Unit a confirmation order or orders through DTC's institutional delivery system or by mailing a written confirmation to such purchaser.
M. Monthly, JPMorgan Chase Bank will send to
the Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture, in the case
of Warrants, the aggregate notional amount
of Warrants outstanding as of that date
under any Warrant Agreement, or, in the case
of Units, the aggregate face amount of Units
outstanding as of that date, under the Unit
Agreement, and setting forth a brief
description of any sales of which the
Company has advised JPMorgan Chase Bank that
have not yet been settled.
Settlement Procedures Unless otherwise specified in any Prospectus, Time
Timetable: of Sale Information or Free Writing Prospectus,
for sales by the Company of Book-Entry Notes,
Book-Entry Warrants or Book-Entry Units to or
through the Agent (unless otherwise specified
pursuant to a Terms Agreement) for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "L" set forth
above shall be completed as soon as possible but
not later than the respective times in New York
City set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 11:00 A.M. on the sale date
D 12:00 Noon on the sale date
E 2:00 P.M. on the sale date
F 9:00 A.M. on the settlement date
G 10:00 A.M. on the settlement date
H-I 2:00 P.M. on the settlement date
J 4:45 P.M. on the settlement date
K-L 5:00 P.M. on the settlement date
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If a sale is to be settled more than one Business Day after the sale date, Settlement Procedures "A", "B", "C", "D" and "E" shall be completed as soon as practicable but no later than
11:00 A.M., 11:00 A.M., 11:00 A.M., 12 Noon and
2:00 P.M., respectively, on the first Business Day
after the sale date. If the Initial Interest Rate
for a Floating Rate Book-Entry Note, whether
issued alone or as part of a Unit, has not been
determined at the time that "Settlement Procedure"
"A" is completed, "Settlement Procedure" "D" and
"E" shall be completed as soon as such rate has
been determined but no later than 12 Noon and 2:00
P.M., respectively, on the Business Day before the
settlement date. "Settlement Procedure" "J" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note, Book-Entry
Warrant or a Book-Entry Unit is rescheduled or
canceled, JPMorgan Chase Bank, after receiving
notice from the Company or the Agent, will deliver
to DTC, through DTC's Participant Terminal System,
a cancellation message to such effect by no later
than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle: If JPMorgan Chase Bank fails to enter an SDFS
deliver order with respect to a Book-Entry Note,
Book-Entry Warrant or a Book-Entry Unit pursuant
to Settlement Procedure "H", JPMorgan Chase Bank
may upon the written request of the Company
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note,
Warrant or Unit to JPMorgan Chase Bank's
participant account, provided that JPMorgan Chase
Bank's participant account contains a principal
amount of the Global Note representing such Note,
an aggregate notional amount of the Global Warrant
representing such Warrant, or an aggregate face
amount of the Global Unit representing such Unit
that is at least equal to the principal amount,
notional amount or face amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Note, all the Book-Entry Warrants represented by a
Global Warrant or all the Book-Entry Units
represented by a Global Unit, JPMorgan Chase Bank
will mark such Global Note, Global Warrant or
Global Unit "canceled," make appropriate entries
in JPMorgan Chase Bank's records and send such
canceled Global Note, Global Warrant or Global
Unit to the Company. The CUSIP number assigned to
such Global Note, Global Warrant or Global Unit
shall, in accordance with the procedures of the
CUSIP Service
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Bureau of Standard & Poor's Corporation, be canceled and not immediately reassigned. If a withdrawal message is processed with respect to one or more, but not all, of the Book-Entry Notes represented by a Global Note, with respect to one or more, but not all, of the Book-Entry Warrants represented by a Global Warrant, or with respect to one or more, but not all, of the Book-Entry Units represented by a Global Unit, JPMorgan Chase Bank will exchange such Global Note, Global Warrant or Global Unit, as the case may be, for two Global Notes, for two Global Warrants or for two Global Units, as the case may be, one of which shall represent such Book-Entry Note or Notes, such Book-Entry Warrant or Warrants or such Book-Entry Unit or Units and shall be canceled immediately after issuance and the other of which shall represent the remaining Book-Entry Notes, Book-Entry Warrants or Book-Entry Units previously represented by the surrendered Global Note, Global Warrant or Global Unit and shall bear the CUSIP number of the surrendered Global Note, Global Warrant or Global Unit.
If the purchase price for any Book-Entry Note, Book-Entry Warrant or Book-Entry Unit is not timely paid to the Participants with respect to such Note, Warrant or Unit by the beneficial purchaser thereof (or any person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the Agent may enter SDFS deliver orders through DTC's Participant Terminal System reversing the orders entered pursuant to Settlement Procedures "H" and "I", respectively. Thereafter, JPMorgan Chase Bank will deliver the withdrawal message and take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, Book-Entry Warrant or Book-Entry Unit, DTC may take any actions in accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more, but not all, of the Book-Entry Notes, Book-Entry Warrants or Book-Entry Units to have been represented by a Global Note, a Global Warrant or a Global Unit, as the case may be, JPMorgan Chase Bank will provide, in accordance with Settlement Procedures "F" and "H", for the authentication and issuance of a Global Note representing the Book-Entry Notes to be represented by such Global Note, for the issuance of a Global
Warrant representing the Book-Entry Warrants to be represented by such Global Warrant and for the issuance of a Global Unit representing the Book-Entry Units to be represented by such Global Unit and, in each case, will make appropriate entries in its records.
EXHIBIT D
JPMORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES E
NOTES TERMS AGREEMENT
__________________, 200_
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
Attention:
The undersigned agrees to purchase your Global Medium-Term Notes, Series E, [specified designation] having the terms set forth below:
Notwithstanding item 1 below, the Offering will be made pursuant to a prospectus dated December 1, 2005, as amended by a prospectus supplement dated December 1, 2005, a product supplement no. [ ] dated [ ] and a final term sheet or pricing supplement which we expect to be dated on or about [ ]. The Notes are expected to have the terms described below, but the final terms of the Notes will be those set forth in the applicable final term sheet or pricing supplement.
All Notes Fixed Rate Notes Floating Rate Notes
-------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date Amortization Schedule: Spread (Plus or
and Time: Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if any): Alternate Rate
Event Spread:
Original Issue Date: Indexed Currency or Initial Interest
|
All Notes Fixed Rate Notes Floating Rate Notes
-------------------------------------------------------------------------------
Currencies (if any): Rate:
Interest Accrual Date: Payment Currency (if any): Initial Interest
Reset Date:
Interest Payment Dates: Exchange Rate Agent (if any): Interest Reset Dates:
Interest Payment Period: Reference Dealers: Interest Reset Period:
Maturity Date: Face Amount (if any): Maximum Interest Rate:
Optional Repayment Fixed Amount of each Indexed Minimum Interest Rate:
Date(s): Currency (if any):
Optional Redemption Aggregate Fixed Amount of Calculation Agent:
Date(s): each Indexed Currency
(if any):
Initial Redemption Date: Applicability of Issuer's Reporting Service:
Option to Extend Original
Maturity Date:
Initial Redemption If yes, state Final
Percentage: Maturity Date:
Annual Redemption
Percentage Reduction:
Ranking:
Minimum Denominations:
|
Other Provisions:
1. The aggregate principal amount of the notes offered that the Agent is hereby committed to place on the Settlement Date is _______________.
By completing Item 1 above, the Agent agrees to place the entire Aggregate Principal Amount of the Notes as set forth in Item 1 within the Offering Period specified above and in accordance with the Selected Dealer Agreement. If Item 1 is not completed, the Agent is not obligated to place any amount of Notes.
The Agents' obligation to purchase any Program Securities hereunder is subject to the accuracy of, at the time of such purchase, the Company's representations and warranties contained in the Master Agency Agreement and to the Company's performance and observance of all applicable covenants and agreements contained therein, and the satisfaction of all conditions precedent contained therein, including, without limitation, those pursuant to Sections 6 and 7 thereof. The delivery of the following additional documents will also be
required by the Agents: [insert additional documents to be delivered pursuant to
Section 4].
Except as otherwise expressly provided herein, all terms used herein which are defined in the Master Agency Agreement shall have the same meanings as in the Master Agency Agreement.
The undersigned agrees to perform its duties and obligations specifically provided to be performed by the Agents in accordance with the terms and provisions of the Master Agency Agreement and the Procedures, as amended or supplemented hereby.
This Agreement shall be subject to the termination provisions of Section 12 of the Master Agency Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be executed in one or more counterparts and the executed counterparts taken together shall constitute one and the same agreement.
J.P. MORGAN SECURITIES INC.,
Title:
Accepted:
JPMORGAN CHASE & CO.
EXHIBIT D-1
JPMORGAN CHASE & CO.
GLOBAL WARRANTS, SERIES E
WARRANTS TERMS AGREEMENT
___________________, 200_
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
Attention:
The undersigned agrees to purchase your Global Warrants, Series E,
[specified designation] having the terms set forth below:
Notwithstanding item 1 below, the Offering will be made pursuant to a prospectus dated December 1, 2005, as amended by a prospectus supplement dated December 1, 2005, a product supplement no. [ ] dated [ ] and a final term sheet or pricing supplement which we expect to be dated on or about [ ]. The Warrants are expected to have the terms described below, but the final terms of the Warrants will be those set forth in the applicable final term sheet or pricing supplement.
Warrant Property:
Aggregate Number of Warrants:
Date(s) upon which Warrants may be exercised:
Currency in which exercise payments shall be made:
Exchange Rate (or method of calculation:
Expiration Date:
Form of Settlement:
D-1-1
[Formula for determining Cash Settlement Value:](2)
[Amount of Warrant Property Salable per Warrant:](3)
[Put Price for such specified amount of Warrant Property per Warrant:](2)
[Method of delivery of any Warrant Property to be delivered for sale upon exercise of Warrants:](3)
Other Terms:
1. The aggregate principal amount of the notes offered that the Agent is hereby committed to place on the Settlement Date is _______________.
By completing Item 1 above, the Agent agrees to place the entire Aggregate Principal Amount of the Warrants as set forth in Item 1 within the Offering Period specified above and in accordance with the Selected Dealer Agreement. If Item 1 is not completed, the Agent is not obligated to place any amount of Warrants.
The Agents' obligation to purchase any Program Securities hereunder is
subject to the accuracy of, at the time of such purchase, the Company's
representations and warranties contained in the Master Agency Agreement and to
the Company's performance and observance of all applicable covenants and
agreements contained therein, and the satisfaction of all conditions precedent
contained therein, including, without limitation, those pursuant to Sections 6
and 7 thereof. The delivery of the following additional documents will also be
required by the Agents: [insert additional documents to be delivered pursuant to
Section 4].
Except as otherwise expressly provided herein, all terms used herein which are defined in the Master Agency Agreement shall have the same meanings as in the Master Agency Agreement.
The undersigned agrees to perform its duties and obligations specifically provided to be performed by the Agents in accordance with the terms and
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the holder deliver Warrant Property to settle Put Warrants
D-1-2
provisions of the Master Agency Agreement and the Procedures, as amended or supplemented hereby.
This Agreement shall be subject to the termination provisions of Section 12 of the Master Agency Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be executed in one or more counterparts and the executed counterparts taken together shall constitute one and the same agreement.
D-1-3
J.P. MORGAN SECURITIES INC.,
Title:
Accepted:
D-1-4
EXHIBIT D-2
JPMORGAN CHASE & CO.
GLOBAL UNITS, SERIES E
UNITS TERMS AGREEMENT
___________________, 200_
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
Attention:
The undersigned agrees to purchase your Global Units, Series E, [specified designation] having the terms set forth below:
Notwithstanding item 1 below, the Offering will be made pursuant to a prospectus dated December 1, 2005, as amended by a prospectus supplement dated December 1, 2005, a product supplement no. [ ] dated [ ] and a final term sheet or pricing supplement which we expect to be dated on or about [ ]. The Units are expected to have the terms described below, but the final terms of the Units will be those set forth in the applicable final term sheet or pricing supplement.
All Units: Warrants Issued as Part of a Unit:
--------------------------------------------------------------------------------
Settlement Date and Time: Designation of the Series of Warrants: [Call]
[Put] Warrants
Number (Face Amount): Warrant Property:
Purchase Price: Aggregate Number of Warrants:
Specified Currency: Date(s) upon which Warrants may be exercised:
Severability: Currency in which exercise payments
shall be made:
Other Terms: Exchange Rate (or method of calculation:
Expiration Date:
|
Form of Settlement:
D-2-1
All Units: Warrants Issued as Part of a Unit:
--------------------------------------------------------------------------------
[Call Price:](1)
[Formula for determining Cash Settlement
Value:](2)
[Amount of Warrant Property Salable per
Warrant:](3)
[Put Price for such specified amount of
Warrant Property per Warrant:](2)
[Method of delivery of any Warrant Property
to be delivered for sale upon exercise of
Warrants:](3)
Other Terms:
Floating Rate
All Notes Issued Fixed Rate Notes Issued Notes Issued as Part
as Part of a Unit: as Part of a Unit: of a Unit:
--------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus
or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency Alternate Rate Event
(if any): Spread:
Original Issue Date: Indexed Currency or Initial Interest
Currencies (if any): Rate:
Interest Accrual Date: Payment Currency (if any): Initial Interest
Reset Date:
Maturity Date: Exchange Rate Agent (if any): Interest Reset Dates:
Interest Payment Date(s): Reference Dealers: Interest Reset
Period:
Interest Payment Period: Face Amount (if any): Maximum Interest
Rate:
----------
|
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the holder deliver Warrant Property to settle Put Warrants
D-2-2
Floating Rate
All Notes Issued Fixed Rate Notes Issued Notes Issued as Part
as Part of a Unit: as Part of a Unit: of a Unit:
--------------------------------------------------------------------------------
Optional Repayment Fixed Amount of each Indexed Minimum Interest
Date(s): Currency (if any): Rate:
Optional Redemption Aggregate Fixed Amount of each Calculation Agent:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Applicability of Issuer's Reporting Service:
Optionto Extend Original
Maturity Date:
Initial Redemption If yes, state Final
Percentage: Maturity Date:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
|
Other Terms:
1. The aggregate principal amount of the notes offered that the Agent is hereby committed to place on the Settlement Date is _______________.
By completing Item 1 above, the Agent agrees to place the entire Aggregate Principal Amount of the Units as set forth in Item 1 within the Offering Period specified above and in accordance with the Selected Dealer Agreement. If Item 1 is not completed, the Agent is not obligated to place any amount of Units.
The Agents' obligation to purchase any Program Securities hereunder is
subject to (i) the accuracy of, at the time of such purchase, the Company's
representations and warranties contained in the Master Agency Agreement and to
the Company's performance and observance of all applicable covenants and
agreements contained therein, and the satisfaction of all conditions precedent
contained therein, including, without limitation, those pursuant to Sections 6
and 7 thereof. The delivery of the following additional documents will also be
required by the Agents: [insert additional documents to be delivered pursuant to
Section 4].
Except as otherwise expressly provided herein, all terms used herein which are defined in the Master Agency Agreement shall have the same meanings as in the Master Agency Agreement.
The undersigned agrees to perform its duties and obligations specifically provided to be performed by the Agents in accordance with the terms and provisions of the Master Agency Agreement and the Procedures, as amended or supplemented hereby.
D-2-3
This Agreement shall be subject to the termination provisions of Section 12 of the Master Agency Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement may be executed in one or more counterparts and the executed counterparts taken together shall constitute one and the same agreement.
D-2-4
J.P. MORGAN SECURITIES INC.
Title:
Accepted:
JPMORGAN CHASE & CO.
D-2-5
EXHIBIT E
[PriceWaterhouseCoopers LLP Letterhead]
[Date]
Board of Directors
JPMorgan Chase & Co.
270 Park Avenue
New York, NY 10017
JPMorgan Chase & Co.
and
J.P. Morgan Securities Inc.
(the "Agent")
Ladies and Gentlemen:
We have audited:
1. The consolidated financial statements of JPMorgan Chase & Co. and its subsidiaries (the "Firm") as of December 31, 2004 and 2003 and for each of the three years in the period ended December 31, 2004 included in the Firm's Annual Report on Form 10-K for the year ended December 31, 2004 (the "Form 10-K").
2. Management's assessment of the effectiveness of the Firm's internal control over financial reporting as of December 31, 2004 which is included in the Form 10-K.
3. The effectiveness of the Firm's internal control over financial reporting as of December 31, 2004.
The consolidated financial statements and management's assessment referred to above are all incorporated by reference in the registration statement (No. on Form S-3 filed by the Firm under the Securities Act of 1933, as amended (the "Act"); our report with respect thereto is also incorporated by reference in such registration statement. Such registration statement, together with the Prospectus dated December 1, 2005 and the Prospectus Supplement dated December 1, 2005 in connection with the offering of Global Medium-Term Notes, Series E, Global Warrants, Series E and Global Units, Series E, are herein collectively referred to as the Registration Statement.
In connection with the Registration Statement:
1. We are an independent registered public accounting firm with respect to the Firm within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Securities and Exchange Commission (the "SEC") and the Public Company Accounting Oversight Board (United States) (the "PCAOB").
2. In our opinion, the Firm's consolidated financial statements audited by us and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the related rules and regulations adopted by the SEC.
3. We have not audited any financial statements of the Firm as of any date or for any period subsequent to December 31, [ ]; although we have conducted an audit for the year ended December 31, [ ], the purpose (and therefore the scope) of the audit was to enable us to express our opinion on the consolidated financial statements as of December 31, [ ] and for the year then ended, but not on the financial statements for any interim period within that year. Therefore, we are unable to and do not express any opinion on the unaudited consolidated balance sheet and the unaudited consolidated statements of income, changes in stockholders' equity and cash flows, included in the Firm's quarterly reports on Form 10-Q for the quarter ended [ ] incorporated by reference in the Registration Statement, or on the financial position, results of operations or cash flows as of any date or for any period subsequent to December 31, [ ]. Also, we have not audited the Firm's internal control over financial reporting as of any date subsequent to December 31, [ ]. Therefore, we do not express any opinion on the Firm's internal control over financial reporting as of any date subsequent to December 31, [ ].
4. For purposes of this letter, we have read the minutes of the [ ]
meetings of the Board of Directors and the Audit Committee of the Firm,
as set forth in the minute books at [ ], officials of the Firm having
advised us that the minutes of all such meetings through that date were
set forth therein (except for the minutes of the [ ] [Audit Committee
meeting and the] [ ] Board of Directors meeting which were not approved
in final form, but for which the meeting agendas were provided to us;
Firm officials have represented that such agendas include all substantive
actions taken at such meetings), and have carried out other procedures to
[ ] (our work did not extend to the period from [ ] to [ ],
inclusive) as follows:
a. With respect to the [ ]-month periods ended [ ] and [ ], we have:
(i) performed procedures (completed on [ ]) specified by the PCAOB for a review of interim financial information as described in SAS No. 100, Interim Financial Information, on the unaudited consolidated financial statements for the [ ] -month period ended [ ], included in the Firm's quarterly reports on Form 10-Q for the quarter ended [ ], incorporated by reference in the Registration Statement; and
(ii) inquired of certain officials of the Firm who have responsibility for financial and accounting matters whether the unaudited
consolidated financial statements referred to in a(i) above comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related rules and regulations adopted by the SEC.
b. With respect to the period from [ ] to [ ], we have:
(i) read the unaudited consolidated financial data of the Firm for
[month] of both [ ] and [ ] furnished to us by the Firm,
officials of the Firm having advised us that no such financial
data as of any date or for any period subsequent to [ ] were
available; and
(ii) inquired of certain officials of the Firm who have responsibility for financial and accounting matters as to whether the unaudited consolidated financial data referred to in b(i) above are stated on a basis substantially consistent with that of the audited consolidated financial statements incorporated by reference in the Registration Statement.
The foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB. Also, they would not necessarily reveal matters of significance with respect to the comments in the following paragraph. Accordingly, we make no representations as to the sufficiency of the foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures, however, that caused us to believe that:
a. (i) Any material modifications should be made to the unaudited consolidated financial statements described in 3, incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States.
(ii) The unaudited consolidated financial statements described in 3 do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related rules and regulations adopted by the SEC.
b. (i) At [ ] there was any change in the common or preferred stock, increase in long-term debt of the Firm as compared with amounts shown in the [ ] unaudited consolidated balance sheet incorporated by reference in the Registration Statement, or (ii) for the period from [ ] to [ ], there was any decrease, as compared with the corresponding period in the preceding year, in consolidated net income, except in all instances for changes, increases or decreases which the Registration Statement discloses
have occurred or may occur [and except that the unaudited consolidated financial data as of and month ended [ ], which were furnished to us by the Firm, showed the following
changes:]
Increase
[(in millions) [Date] [Date] (Decrease)
-----------------------------------
Common Stock $[ ] $[ ] $[ ]
Long term debt $[ ] $[ ] $[ ]
[ ] to [ ] to [ ] to
[ ] [ ] [ ]
-----------------------------------
Consolidated net income $[ ] $[ ] $[ ]]
|
6. As mentioned in 4b, Firm officials have advised us that no consolidated financial data as of any date or for any period subsequent to [ ] are available; accordingly, the procedures carried out by us with respect to changes in financial statement items after [ ] have, of necessity, been even more limited than those with respect to the periods referred to in 4. We have inquired of certain officials of the Firm who have responsibility for financial and accounting matters as to whether:
a. At [ ] there was any change in the common or preferred stock, increase in the long-term debt or decrease in total stockholders' equity of the Firm as compared with amounts shown in the [ ] unaudited consolidated balance sheet incorporated by reference in the Registration Statement, except for:
[ ]
On the basis of these inquiries and our reading of the minutes as described in 4, nothing came to our attention that caused us to believe that there was any such change, increase or decrease, except in all instances for changes, increases or decreases which the Registration Statement discloses have occurred or may occur.
[Officials of the Firm informed us however, that they can make no comments
with respect to consolidated net income for the period from [ ] to
[ ], as compared with the corresponding period in the preceding year,
or to decreases in total stockholders' equity as of [ ], as compared
with the corresponding amount shown in the [ ] unaudited consolidated
balance sheet incorporated by reference in the Registration Statement.]
7. For purposes of this letter, we have also read the items identified by you on the attached copies of (a) the Firm's annual report on Form 10-K for the year ended December 31, [ ], (b) the Prospectus and Prospectus Supplement dated December 1, 2005, (c) the Firm's quarterly report on Form 10-Q for the quarter ended [ ], and have performed certain procedures with respect to such information, which were applied as indicated with respect to the symbols explained in Attachment 1. We make no comment as to whether the SEC would view any non-GAAP financial information included or incorporated by reference in the Registration Statement as being compliant with the requirements of Regulation G or Item 10 of Regulation S-K.
For purposes of this letter, when performing procedures on average balances, we make no comment as to the appropriateness of the Firm's method of computing average balances.
8. Our audit of the consolidated financial statements for the periods referred to in the introductory paragraph of this letter comprised audit tests and procedures deemed necessary for the purpose of expressing an opinion on such financial statements taken as a whole. For none of the periods referred to therein, or any other period, did we perform audit tests for the purpose of expressing an opinion on individual balances of accounts or summaries of selected transactions such as those identified by you above, and accordingly, we express no opinion thereon.
9. It should be understood that we make no representations regarding questions of legal interpretation or regarding the sufficiency for your purposes of the procedures enumerated in Attachment 1; also, such procedures would not necessarily reveal any material misstatement of the amounts or percentages identified by you above. Further, we have addressed ourselves solely to the foregoing data as set forth or incorporated by reference in the Registration Statement and make no representations regarding the adequacy of disclosure or regarding whether any material facts have been omitted.
10. This letter is solely for the information of the addressees and to assist the Agent in conducting and documenting its investigation of the affairs of the Firm in connection with the offering of the securities covered by the Registration Statement, and is not to be used, circulated, quoted, or otherwise referred to for any other purpose, including but not limited to the registration, purchase, or sale of securities, nor is it to be filed with or referred to in whole or in part in the Registration Statement or any other document, except that reference may be made to it in the Agent agreement or in any list of closing documents pertaining to the offering of the securities covered by the Registration Statement.
Yours very truly,
Exhibit 4(p)
JPMORGAN CHASE & CO.
CALCULATION AGENT AGREEMENT
CALCULATION AGENT AGREEMENT dated as of December 1, 2005 between JPMorgan Chase & Co., a Delaware corporation (hereinafter called the "Issuer"), having its principal office at 270 Park Avenue, New York, New York 10017-2070, and J.P. Morgan Securities Inc. (hereinafter sometimes called the "Calculation Agent," which term shall, unless the context shall otherwise require, include its successors and assigns), having its principal office at 270 Park Avenue, New York, New York 10017-2070.
WHEREAS, the Issuer proposes to issue and sell from time to time up to $4,000,000,000 less the initial public offering price of any securities previously issued under the Registration Statement on Form S-3 file No. 333-[ ] (the "Registration Statement"), as filed with the Securities and Exchange Commission under the Securities Act of 1933 (or the equivalent thereof in one or more currencies other than U.S. dollars) aggregate initial public offering price of its Global Medium-Term Notes, Series E, due more than nine months from the date of issue (the "Notes"), its Global Warrants, Series E (the "Warrants") and its Global Units, Series E (the "Units" and, together with the Notes and Warrants and any other securities that may be offered by post-effective amendment to the Registration Statement, the "Program Securities"), as such amount may be increased from time to time upon due authorization by the Issuer. The Notes will be issued, either alone or as part of a Unit, pursuant to the provisions of an indenture dated as of May 25, 2001, between the Company and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), as trustee (the "Trustee") (as may be supplemented or amended from time to time, the "Indenture").
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints J.P. Morgan Securities Inc., as Calculation Agent for the Notes, upon the terms and subject to the conditions herein set forth, and J.P. Morgan Securities Inc. hereby accepts such appointment. The Calculation Agent shall act as an agent of the Issuer for the purpose of determining any payments to be made on the Notes.
2. Attached as Exhibits A-1, A-2, A-3, A-4, A-5 and A-6 are the forms of Notes and the Calculation Agent hereby acknowledges its acceptance of the forms of the Notes.
3. The Issuer shall notify the Calculation Agent of the issuance of the Notes and, at the time of such issuance, shall deliver to the Calculation Agent all information in the possession of the Issuer for the calculation of any payments
thereunder. The Calculation Agent shall calculate any payments due on the Notes in accordance with the terms of such Notes, the Indenture and the provisions of this Agreement. In addition, the Calculation Agent shall maintain, or cause to be maintained, records permitting it to calculate any amounts due (as set forth in the Notes).
4. Promptly following the determination of any amount due, the Calculation Agent will cause to be forwarded to the Issuer, the Trustee and any paying agent for the Notes information regarding the amount due.
5. The Issuer will pay such compensation as shall be agreed upon and the expenses, including reasonable counsel fees, incurred by the Calculation Agent in connection with its duties hereunder to the Calculation Agent upon receipt of such invoices as the Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes or the Indenture, the Issuer will indemnify the Calculation Agent against any losses, liabilities, costs, claims, actions or demands which it may incur or sustain or which may be made against it in connection with its appointment or the exercise of its powers and duties hereunder as well as the reasonable costs, including reasonable fees and expenses of counsel in defending any claim, action or demand, except such as may result from the negligence or willful misconduct of the Calculation Agent or any of its employees. The Calculation Agent shall incur no liability and shall be indemnified and held harmless by the Issuer for, or in respect of, any actions taken or suffered to be taken in good faith by the Calculation Agent in reliance upon (i) the written opinion or advice of counsel or (ii) written instructions from the Issuer.
7. The Calculation Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer agrees:
(i) in acting under this Agreement and in connection with the Notes, the Calculation Agent, acting as agent for the Issuer, does not assume any obligation towards, or any relationship of agency or trust for or with, any of the holders of the Notes;
(ii) unless herein otherwise specifically provided, any order, certificate, notice, request or communication from the Issuer made or given under any provision of this Agreement shall be sufficient if signed or given by any person whom the Calculation Agent reasonably believes to be a duly authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only such duties as are expressly set forth herein and any duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered in good faith by it in reliance upon anything contained in the Notes, the Indenture or any information supplied to it by the Issuer pursuant to this Agreement, including the information to be supplied pursuant to paragraph 3 above.
(v) the Calculation Agent, whether acting for itself or in any other capacity, may become the owner or pledgee of Notes with the same rights as it would have had if it were not acting hereunder as Calculation Agent; and
(vi) the Calculation Agent shall incur no liability hereunder except for loss sustained by reason of its own negligence or willful misconduct.
8. (a) The Calculation Agent may, in its sole discretion, designate one or more reference treasury dealers (each a "Reference Treasury Dealer") for purposes of quoting rates or yields in accordance with the terms of the Notes. Forthwith upon such initial designation or any change in the identity of any Reference Treasury Dealer, the Calculation Agent shall notify the Issuer and the Trustee of such designation or change. The Calculation Agent shall not be responsible to the Issuer or any third party for any failure of any Reference Treasury Dealer to fulfill its duties or meet its obligations as a Reference Treasury Dealer or as a result of the Calculation Agent's having acted (except in the event of negligence or willful misconduct) on any quotation or other information given by any Reference Treasury Dealer that subsequently may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at any time resign as Calculation Agent by giving written notice to the Issuer and the Trustee of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such notice shall be given not less than 60 days prior to the said effective date unless the Issuer and the Trustee otherwise agree in writing; provided, however, if the Calculation Agent has given not less than 60 days' prior notice of its desired resignation, and during such 60 days a successor Calculation Agent has not accepted its appointment as successor Calculation Agent, the Calculation Agent so resigning may petition any court of competent jurisdiction for the appointment of a successor Calculation Agent. The Issuer covenants that it shall appoint a successor Calculation Agent as soon as practicable after receipt of any notice of resignation hereunder.
Except as provided below, the Calculation Agent may be removed by the filing with it and the Trustee of an instrument in writing signed by the Issuer specifying such removal and the date it shall become effective (such effective date being at least 20 days after said filing). Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as provided herein of a successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor Calculation Agent.
Upon its resignation or removal becoming effective, the retiring Calculation Agent shall be entitled to the payment of its compensation and the reimbursement of all expenses (including reasonable counsel fees) incurred by such retiring Calculation Agent pursuant to paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be removed, or shall become incapable of acting or shall be adjudged bankrupt or insolvent, or liquidated or dissolved, or an order is made or an effective resolution is passed to wind up the Calculation Agent, or if the Calculation Agent shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors, or shall consent to the appointment of a receiver, administrator or other similar official of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver, administrator or other similar official of the Calculation Agent or of all or any substantial part of its property shall be appointed, or if any order of any court shall be entered approving any petition filed by or against the Calculation Agent under the provisions of any applicable bankruptcy or insolvency law, or if any public officer shall take charge or control of the Calculation Agent or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then a successor Calculation Agent shall be appointed by the Issuer by an instrument in writing filed with the successor Calculation Agent and the Trustee. Upon the appointment as aforesaid of a successor Calculation Agent and acceptance by the latter of such appointment, the former Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall execute and deliver to its predecessor, the Issuer and the Trustee an instrument accepting such appointment hereunder, and thereupon such successor Calculation Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, immunities, duties and obligations of such predecessor with like effect as if originally named as the Calculation Agent hereunder, and such predecessor,
upon
payment of its compensation, charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Calculation Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Calculation Agent.
(e) Any corporation or other entity into which the Calculation Agent may be merged or converted or any corporation or other entity with which the Calculation Agent may be consolidated or any corporation resulting from any merger, conversion or consolidation to which the Calculation Agent shall be a party shall, to the extent permitted by applicable law, be the successor Calculation Agent under this Agreement without the execution or filing or any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversation or consolidation shall forthwith be given to the Issuer and the Trustee.
(f) The provision of paragraph 6 hereof shall survive any resignation or removal of the Calculation Agent hereunder.
9. Any notice required to be given hereunder shall be delivered in person, sent by letter or telex or telecopy or communicated by telephone (subject, in the case of communication by telephone, to confirmation dispatched within two business days by letter, telex or telecopy), in the case of the Issuer, to it at the address set forth in the heading of this Agreement, Attention: Corporate Treasury; in the case of the Calculation Agent, to it at the address set forth in the heading of this Agreement, Attention: Structured Investments, Private Banking Marketing Desk; and in the case of the Trustee, to it at 60 Wall Street, MS NYC60-2515, New York, NY 10005, Attention: Trust and Securities Services; or, in any case, to any other address of which the party receiving notice shall have notified the party giving such notice in writing.
10. This Agreement may be amended only by a writing duly executed and delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York.
This Agreement may be executed in counterparts and the executed counterparts shall together constitute a single instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date and year first above written.
JPMORGAN CHASE & CO.
By: /s/ Louis M. Morrell
---------------------
Name: Louis M. Morrell
Title: Managing Director
|
J.P. MORGAN SECURITIES INC.
By: /s/ Michael Camacho
---------------------
Name: Michael Camacho
Title: Managing Director
|
Exhibit 4(q)
PAYING AGENT, REGISTRAR & TRANSFER AGENT AND
AUTHENTICATING AGENT AGREEMENT
THIS AGREEMENT is dated as of March 23, 2005, and shall remain in effect thereafter, among JPMorgan Chase & Co., a corporation organized under the laws of the State of Delaware (the "Issuer"), Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company), a New York banking corporation (the "Trustee"), and JPMorgan Chase Bank, National Association, a national banking association (the "Bank").
WITNESSETH:
WHEREAS, the Issuer has entered into an Indenture, dated as of May 25, 2001 (the "Indenture"), with the Trustee, pursuant to which the Issuer may issue its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms thereof;
WHEREAS, the Issuer wishes to appoint the Bank as paying agent, registrar and transfer agent under the Indenture;
WHEREAS, the Issuer and the Trustee wish to appoint the Bank as Authenticating Agent under the Indenture;
WHEREAS, all things necessary to make this Agreement a valid agreement according to the terms of the Indenture have been done;
NOW, THEREFORE, the Issuer, the Trustee and the Bank, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby mutually covenant and agree as follows:
SECTION 1. Paying Agent. (a) Appointment. In accordance with and subject to Section 3.04 of the Indenture, the Issuer hereby appoints the Bank, and the Bank hereby accepts such appointment, to act, on the terms and conditions specified herein, as paying agent (the "Paying Agent") in connection with any series of Securities issued under the Indenture, unless the parties hereto otherwise agree to the contrary.
(b) Availability of Funds. The Issuer shall assure that funds are available to the Paying Agent not later than 12:00 noon New York City time on or prior to each due date of the principal of or interest on the Securities of any series, in immediately available funds sufficient to pay the principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) as the case may be. The Issuer shall promptly notify the Trustee of any failure to take such action. When used herein, the terms "principal" and "interest" shall have the meanings ascribed to them in Section 1.01 of the Indenture.
(c) Application of Funds; Return of Unclaimed Funds. Until used or applied as herein provided and except as otherwise provided in the terms of any series of Securities, all funds made available to the Paying Agent hereunder shall be held for the purposes for which they were received but need not be segregated from other funds except to the extent required by law.
(d) Agreements with the Trustee. The Paying Agent shall (i) hold all sums received by it as such agent for the payment of the principal of or interest on any Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or the Coupons appertaining thereto, if any, or of the Trustee, and (ii) give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities when the same shall be due and payable.
(e) No Agency Relationship. In acting under this Agreement or in connection with any series of Securities issued under the Indenture, the Paying Agent is acting solely as agent of the Issuer and shall not assume any relationship of agency or trust for or with any Securityholder, except that all funds held by the Bank for payment of principal of or interest on the Securities shall be held in trust by it and applied to payments of the Securities subject to the limitations set forth herein and in the terms of the Security.
SECTION 2. Registrar and Transfer Agent. (a) Appointment. The Issuer hereby appoints the Bank, and the Bank hereby accepts such appointment, to act, on the terms and conditions specified herein, as registrar and transfer agent (the "Registrar and Transfer Agent") in connection with any series of Securities issued under the Indenture, unless the parties hereto otherwise agree to the contrary.
(b) Rights and Obligations. The Registrar and Transfer Agent shall have the same rights and obligations with respect to the registration and transfer of any series of Securities that the Issuer has outstanding under Sections 2.08 and 3.02 of the Indenture.
SECTION 3. Authenticating Agent. (a) Appointment. In accordance with and subject to Section 6.13 of the Indenture, the Issuer and the Trustee hereby appoint the Bank, and the Bank hereby accepts such appointment, to act, on the terms and conditions specified herein, as authenticating agent (the "Authenticating Agent") on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.09 of the Indenture, unless the parties hereto otherwise agree to the contrary.
(b) Representation and Warranty. The Authenticating Agent hereby represents and warrants that it is, and at all times during which this Agreement is
in effect will be (i) a national association organized and doing business under
the laws of the United States of America or of any State, (ii) authorized under
such laws to exercise corporate trust powers, (iii) an institution having a
combined capital and surplus of at least $5,000,000 (determined as provided in
Section 6.09 of the Indenture with respect to the Trustee) and (iv) subject to
supervision or examination by Federal or State authority.
(c) Authorized Representatives. From time to time the Issuer will furnish the Authenticating Agent with a certificate or similar form of evidence of the Issuer demonstrating the incumbency of officers authorized to execute Securities and Issuer Orders on behalf of the Issuer (an "Authorized Representative"). Until the Authenticating Agent receives a subsequent incumbency certificate or similar form of evidence of the Issuer, the Authenticating Agent shall be entitled to rely on the last such certificate or similar form of evidence delivered to it for purposes of determining the Authorized Representatives.
(d) Reliance on an Issuer Order. The Authenticating Agent shall incur no liability to the Issuer in acting hereunder on instructions which the recipient believed in good faith to have been given by an Authorized Representative.
SECTION 4. Liability. Neither the Bank nor its officers or employees shall be liable for any act or omission hereunder except in the case of gross negligence or willful misconduct. The duties and obligations of the Bank, its officers and employees shall be determined by the express provisions of this Agreement and they shall not be liable except for the performance of such duties and obligations as are specifically set forth herein and no implied covenants shall be read into this Agreement against them. The Bank may consult with counsel and shall be fully protected in any action taken in good faith in accordance with the advice of counsel. Neither the Bank nor its officers or employees shall be required to ascertain whether any issuance or sale of Securities (or any amendment or termination of this Agreement) has been duly authorized or is in compliance with any other agreement to which the Issuer is a party (whether or not the Bank is also a party of such other agreement).
SECTION 5. Indemnification. The Issuer agrees to indemnify and hold harmless the Bank, its directors, officers, employees and agents from and against any and all liabilities (including liability for penalties), losses, claims, damages, actions, suits, judgments, demands, costs and expenses (including reasonable legal fees and expenses) relating to or arising out of or in connection with its or their performance under this Agreement, except to the extent that they are caused by the gross negligence or willful misconduct of the Bank. The foregoing indemnity includes, but is not limited to, any action taken or omitted in good faith within the scope of this Agreement upon telephone, telecopier or other electronically transmitted instructions, if authorized herein, received from or believed by the Bank in good faith to have been given by an Authorized Representative. In no event shall the Bank be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits) even if the Bank has been advised of the likelihood of such loss or damage and regardless of the form of action. This indemnity shall survive the resignation or removal of the Bank and the satisfaction or termination of this Agreement.
SECTION 6. The Trustee. Deutsche Bank Trust Company Americas, in its capacity as Trustee hereunder shall be afforded all of the rights, powers, immunities and indemnities set forth in the Indenture as if such rights, powers, immunities and indemnities were specifically set forth herein.
SECTION 7. Compensation of the Bank. The Issuer agrees to pay the compensation of the Bank at such rates as shall be agreed upon from time to time and to reimburse the Bank its out-of-pocket expenses (including reasonable legal fees and expenses), disbursements and advances incurred or made in accordance with any provisions of this Agreement. The obligations of the Issuer to the Bank pursuant to this Section shall survive the resignation or removal of the Bank and the satisfaction or termination of this Agreement.
SECTION 8. Notices. Notices and other communications hereunder shall be in writing and shall be addressed as follows, or to such other addresses as the parties hereto shall specify from time to time:
(i) if to the Issuer:
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017
Attention: Neila Radin
Phone: (212) 270-0938
Fax: (212) 270-1222
(ii) if to the Bank:
JPMorgan Chase Bank, National Association
Institutional Trust Services
4 New York Plaza, 15th Floor
New York, New York 10004
Attention: Bill Lee
Phone: (212) 623-5340
Fax: (212) 623-6274
(iii) if to the Trustee:
Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company)
Trust & Securities Services
60 Wall Street
MS NYC60-2710
New York, New York 10005-2858
Attention: Irina Golovashchuk
Phone: (212) 250-2191
Fax: (212) 797-8614
SECTION 9. Resignation or Removal of Bank. (a) Resignation by Bank. Subject to Section 9(c) the Bank may at any time resign in its capacity as any agent designated hereunder by giving written notice to the Issuer (and, in the case of resignation in its capacity as the Authenticating Agent, to the Trustee) of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall be not less than three months after the giving of such notice by the Bank to the Issuer and, if applicable, to the Trustee.
(b) Removal by Issuer. The Issuer may at any time remove the Bank in its capacity as any agent designated hereunder by giving written notice to the Bank specifying such capacity upon which the removal relates and the date upon which it is intended to become effective.
(c) Effective Date. Such resignation or removal shall take effect on the date of the appointment by the Issuer (and if applicable, the Trustee) of a successor agent and the acceptance of such appointment by such successor agent. In the event of resignation by the Bank in any capacity, if a successor agent has not been appointed by the Issuer within three months after the giving of notice by the Bank of its intention to resign in such capacity, the Bank may, at the expense of the Issuer, petition any court of competent jurisdiction for appointment of a successor Bank.
SECTION 10. Benefit of Agreement. This Agreement is solely for the benefit of the parties hereto, their successors and assigns, and no other person shall acquire or have any right under or by virtue hereof.
SECTION 11. Securities Held by the Bank. The Bank, in its individual or other capacity, may become the owner or pledgee of the Securities with the same rights it would have if it were not acting as the Paying Agent, the Registrar and Transfer Agent or the Authenticating Agent hereunder.
SECTION 12. Governing Law. This Agreement is to be delivered and performed in the State of New York, and shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of New York.
SECTION 13. Counterparts. This Agreement may be executed by the parties hereto in any number of counterparts, and by each of the parties hereto in separate counterparts. Each such counterpart, when so executed and delivered,
shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 14. Capitalized Terms. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on their behalf by their officers thereunto duly authorized, all as of the date and year first above written.
JPMORGAN CHASE & CO.
By: /s/ Louis M. Morrell
---------------------------
Name: Louis M. Morrell
Title: Managing Director
|
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
By: /s/ Tai Bill Lee
---------------------------
Name: Tai Bill Lee
Title: Vice President
|
DEUTSCHE BANK TRUST COMPANY
AMERICAS (f/k/a Bankers Trust
Company)
By: /s/ Irina Golovashchuk
---------------------------
Name: Irina Golovashchuk
Title: Associate
|
Exhibit 5.1
SIMPSON THACHER & BARTLETT LLP
425 LEXINGTON AVENUE
NEW YORK, N.Y. 10017-3954
(212) 455-2000
FACSIMILE (212) 455-2502
December 1, 2005
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase & Co., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-3 (the "Registration Statement") filed by the Company, with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), relating to (i) debt securities ("Debt Securities"); (ii) contracts for the purchase and sale of securities issued by us or by an entity affiliated or not affiliated with us, a basket of those securities, an index or indices of those securities or any combination thereof, currencies, commodities, or other property (the "Purchase Contracts"); (iii) warrants to purchase Debt Securities ("Debt Warrants"), to receive cash determined by reference to an index or indices ("Index Warrants"), to receive cash determined by reference to currencies ("Currency Warrants"), to receive cash determined by reference to interest rates ("Interest Rate Warrants"), or to purchase or sell (a) securities of an entity other than JPMorgan Chase, a basket of such securities or commodities, or (b) receive cash determined by reference to any other financial, economic or other measure or instrument including the occurrence or non-occurrence of any other event or circumstance, any combination of the above ("Universal Warrants," and together with Debt Warrants, Index Warrants, Currency Warrants and Interest Rate Warrants, the "Warrants"); and (iv) Debt Securities, Warrants and Purchase Contracts or any combination thereof that may be offered in the form of Units ("Units"). The Debt Securities, Purchase Contracts, Warrants and Units are hereinafter referred to collectively as the "Securities." The Securities may be issued and sold or delivered from time to
time as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the "Prospectus") and supplements to the Prospectus (the "Prospectus Supplements") and pursuant to Rule 415 under the Securities Act and one or more product supplements and/or pricing supplements.
The Debt Securities, if any, are to be issued from time to time as senior indebtedness of the Company under an indenture dated as of May 25, 2001 (the "Indenture") entered into between the Company and Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), as trustee (the "Trustee").
The Debt Warrants, if any, will be issued under a debt warrant agreement (the "Debt Warrant Agreement") to be entered into between the Company and a debt warrant agent. The Index Warrants, if any, will be issued under an index warrant agreement (the "Index Warrant Agreement") to be entered into between the Company and an index warrant agent. The Currency Warrants, if any, will be issued under a currency warrant agreement (the "Currency Warrant Agreement") to be entered into between the Company and a currency warrant agent. The Interest Rate Warrants, if any, will be issued under an interest rate warrant agreement (the "Interest Rate Warrant Agreement") to be entered into between the Company and an interest rate warrant agent. The Universal Warrants, if any, will be issued under a universal warrant agreement (the "Universal Warrant Agreement") to be entered into between the Company and a universal warrant agent. The Debt Warrant Agreement, the Index Warrant Agreement, the Currency Warrant Agreement, the Interest Rate Warrant Agreement and the Universal Warrant Agreement are hereinafter referred to collectively as the "Warrant Agreements." Each party to a Warrant Agreement other than the Company is referred to hereinafter as a "Counterparty."
The Units, if any, will be issued under a unit agreement (the "Unit Agreement") to be entered into between the Company and a unit agent (the "Unit Agent").
We have examined the Registration Statement, the Indenture, the form of Purchase Contract, the forms of Warrant Agreements, the form of Unit Agreement and the forms of Securities, each of which have been filed with the Commission as exhibits to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. We also have assumed that (1) the Indenture is the valid and legally binding obligation of the Trustee; (2) at the time of execution, countersignature, issuance and delivery of any Warrants, the related Warrant Agreement will be the valid and legally binding obligation of each Counterparty thereto; and (3) at the time of execution, countersignature, issuance and delivery of any Units, the related Unit Agreement will be the valid and legally binding obligation of the unit agent thereto.
We have assumed further that at the time of execution, issuance and delivery of the Purchase Contracts, such Purchase Contracts will have been duly authorized, executed and delivered by the Company.
We have assumed further that at the time of execution, countersignature, issuance and delivery of any Warrants, the related Warrant Agreement will have been duly authorized, executed and delivered by the Company.
We have assumed further that at the time of execution, countersignature, issuance and delivery of any Units, the related Unit Agreement will have been duly authorized, executed and delivered by the Company.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
1. With respect to the Debt Securities, assuming (a) the taking of all necessary corporate action to approve the issuance and terms of any Debt Securities, the terms of the offering thereof and related matters by the Board of Directors of the Company, a duly constituted and acting committee of such Board or duly authorized officers of the Company (such Board of Directors, committee or authorized officers being referred to herein as the "Board") and (b) the due execution, authentication, issuance and delivery of such Debt Securities, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Indenture and such agreement, such Debt Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms
2. With respect to the Purchase Contracts, assuming (a) the taking of all necessary corporate action by the Board to approve the execution and delivery of the Purchase Contracts in the form filed as an exhibit to the Registration
Statement and (b) the due execution, issuance and delivery of the Purchase Contracts, upon payment of the consideration for such Purchase Contracts provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the Purchase Contracts and such agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
3. With respect to the Warrants, assuming (a) the taking of all necessary corporate action by the Board to approve the execution and delivery of a related Warrant Agreement in the form filed as an exhibit to the Registration Statement and (b) the due execution, countersignature, issuance and delivery of such Warrants, upon payment of the consideration for such Warrants provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Warrant Agreement and such agreement, such Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
4. With respect to the Units, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve (1) the issuance and terms of the Units, (2) the execution and delivery of any Purchase Contracts that are a component of the Units in the form filed as an exhibit to the Registration Statement, (3) the execution and delivery of the Warrant Agreement with respect to any Warrants that are a component of the Units in the form filed as an exhibit to the Registration Statement; and (4) the issuance and terms of the Debt Securities that are a component of the Units, the terms of the offering thereof and related matters and (b) the due execution, authentication, in the case of such Debt Securities, issuance and delivery of (1) the Units, (2) such Purchase Contracts, (3) such Warrants and (4) such Debt Securities, in each case upon the payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and in accordance with the provisions of the applicable Purchase Contracts, in the case of such Purchase Contracts, and in accordance with the provisions of the applicable Warrant Agreement, in the case of such Warrants, and the Indenture, in the case of such Debt Securities, such Units will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.
Our opinions set forth in paragraphs 1 through 4 above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
We do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing).
We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement and to the use of our name under the caption "Legal Opinions" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP SIMPSON THACHER & BARTLETT LLP |
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 22, 2005 relating to the financial statements, management's assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting, which appears in JPMorgan Chase & Co.'s Annual Report on Form 10-K for the year ended December 31, 2004. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP New York, New York December 1, 2005 |
Exhibit 23(b)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
JPMorgan Chase & Co.:
We consent to the incorporation by reference in this Registration Statement on Form S-3 ("Registration Statement") of JPMorgan Chase & Co. of our report dated January 20, 2004, relating to the consolidated balance sheets of Bank One Corporation and subsidiaries ("Bank One") as of December 31, 2003 and 2002, and the related consolidated statements of income, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2003, which appear in JPMorgan Chase & Co.'s Current Report on Form 8-K dated March 1, 2004. Our report dated January 20, 2004 refers to Bank One's adoption of FASB Interpretation No. 46, Consolidation of Variable Interest Entities, effective December 31, 2003, and the discontinuance and sale of Bank One's corporate trust services business in 2003.
/s/ KPMG LLP KPMG LLP Chicago, Illinois December 1, 2005 |
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ William B. Harrison, Jr. ----------------------------------------- William B. Harrison, Jr. |
Director, Chairman of the Board and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ James Dimon ----------------------------------------- James Dimon |
Director, President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Hans W. Becherer ----------------------------------------- Hans W. Becherer |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30 2005.
/s/ John H. Biggs ----------------------------------------- John H. Biggs |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Lawrence A. Bossidy ----------------------------------------- Lawrence A. Bossidy |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Stephen B. Burke ----------------------------------------- Stephen B. Burke |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ James S. Crown ----------------------------------------- James S. Crown |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Ellen V. Futter ----------------------------------------- Ellen V. Futter |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ William H. Gray, III ----------------------------------------- William H. Gray, III |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Laban P. Jackson, Jr. ----------------------------------------- Laban P. Jackson, Jr. |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ John W. Kessler ----------------------------------------- John W. Kessler |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Robert I. Lipp ----------------------------------------- Robert I. Lipp |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Richard A. Manoogian ----------------------------------------- Richard A. Manoogian |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ David C. Novak ----------------------------------------- David C. Novak |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Lee R. Raymond ----------------------------------------- Lee R. Raymond |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ William C. Weldon ----------------------------------------- William C. Weldon |
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Michael J. Cavanagh -------------------------------------------- Michael J. Cavanagh |
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of JPMORGAN CHASE & CO., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints WILLIAM B.
HARRISON JR., JAMES DIMON, MICHAEL J. CAVANAGH, JOAN GUGGENHEIMER, WILLIAM H.
MCDAVID, MARK I. KLEINMAN and ANTHONY J. HORAN, and each of them severally, his
or her true and lawful attorneys-in-fact and agents, with full power to act with
or without the others and with full power of substitution and resubstitution,
for and on behalf of him or her and in his or her name, place and stead, in any
and all capacities, to perform any and all acts and do all things and to execute
any and all instruments which said attorneys-in-fact and agents and each of them
may deem necessary or desirable to enable the Corporation to comply with the
Securities Act of 1933 (the "Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission (the "SEC") thereunder in connection
with the filing of the accompanying registration statement under the Act for the
registration of securities of the Corporation pursuant to resolutions adopted by
the Board of Directors of the Corporation on January 18, 2005 and on September
20, 2005, authorizing the preparation and filing of a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Act, for the offer and sale
of securities of the Corporation, including without limitation, (i) debt
obligations of the Corporation registered under the Act; (ii) debt obligations
of the Corporation not registered under the Act; (iii) debt obligations of one
or more offshore or domestic bank and non bank subsidiaries of the Corporation
that are guaranteed by the Corporation; (iv) any securities (or units or
combinations of securities) of a special purpose entity that are guaranteed by
the Corporation; (v) warrants to purchase any of the foregoing; (vi) warrants of
the Corporation to purchase equity securities of the Corporation or depositary
shares representing a fraction of a share of such equity securities; (vii)
warrants of the Corporation entitling the holder (a) to receive cash determined
by reference to an index or indices, or to a currency or currencies, or to an
interest rate or rates, or to any financial, economic or other measure or
instrument, including the occurrence or non occurrence of any event or
condition, or any combination of the foregoing; (b) to purchase or sell
securities of any entity other than the Corporation, or a basket of such
securities, or to purchase or sell commodities, or any combination of the
foregoing; and (viii) units consisting of one or more warrants and debt
obligations or any combination of the foregoing (the "Securities"), including
without limiting the generality of the foregoing, power and authority to sign
the name of the undersigned director or officer or both in such capacity or
capacities, to such registration statement including without limitation, the
prospectuses and prospectus supplements contained therein, and any and all
amendments, including post-effective amendments, and exhibits thereto, and, if
appropriate, a second registration statement that will become effective upon
filing pursuant to Rule 462(b) under the Act or any registration statement that
is filed pursuant to Rule 429 under the Act (the "Registration Statements") to
be filed with the SEC with respect to such Securities, and to sign any and all
instruments or documents to be filed as a part of or in connection with said
Registration Statements or any and all amendments thereto, whether such
instruments or documents are filed before or after the effective date of such
Registration Statements, and to appear before the SEC in connection with any
matter relating thereto, hereby granting to such attorneys-in-fact and agents,
and each of them, full power to do and perform any and all acts and things
requisite and necessary to be done in connection therewith as the undersigned
might or could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact and agents and each of them may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of November 30, 2005.
/s/ Joseph L. Sclafani ----------------------------------------- Joseph L. Sclafani |
Executive Vice President and Controller
(Principal Accounting Officer)