Pitney Bowes Inc. Debt Securities Warrants to Purchase Debt Securities Underwriting Agreement Standard Provisions
Exhibit 1.1
Pitney Xxxxx Inc.
Debt Securities
Warrants to Purchase Debt Securities
Warrants to Purchase Debt Securities
Standard Provisions
March 2, 2009
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
Pitney Xxxxx Inc., a Delaware corporation (the “Company”), from time to time may enter into
one or more pricing agreements (each a “Pricing Agreement”) in the form of Annex I, with such
additions and deletions as the parties thereto may determine and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) certain of its debt securities or warrants
to purchase debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the “Firm Securities”). If specified in such Pricing
Agreement, the Company may grant to the Underwriters the right to purchase at their election an
additional principal amount of Securities, specified in such Pricing Agreement as provided in
Section 2 (the “Optional Securities”). The Firm Securities and the Optional Securities, if any,
which the Underwriters elect to purchase pursuant to Section 2 are collectively called the
“Designated Securities.” The Pricing Agreement may designate a lead underwriter or underwriters
(collectively, the “Representatives”) for the particular issue of Designated Securities. The term
“Representatives” also refers to a single firm acting as sole representative of the Underwriters
and to an Underwriter or Underwriters who act without any firm being designated as its or their
representatives.
The standard provisions set forth herein to the extent applicable to securities of the type
represented by the Designated Securities will be incorporated by reference in any such Pricing
Agreement relating to a particular issue of Securities. The terms and rights of any particular
issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the “Indenture”) identified in such Pricing Agreement.
This Underwriting Agreement shall not be construed as an obligation of the Company to sell any
of the Securities or as an obligation of any of the Underwriters to purchase any of the Securities.
The obligation of the Company to issue and sell any of the Designated Securities and the
obligation
of the Underwriters to purchase any of the Designated Securities shall be evidenced by the
Pricing
Agreement with respect to the Designated Securities specified therein. Each Pricing
Agreement shall specify the aggregate principal amount of the Firm Securities, the maximum
aggregate principal amount of the Optional Securities, if any, any initial public offering price of
such Designated Securities or the manner of determining such price, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representative(s) of such Underwriters, the principal amount of such
Designated Securities to be purchased by each Underwriter and the commission, if any, payable to
the Underwriters with respect thereto and shall set forth the date, time and manner of delivery of
such Firm Securities and Optional Securities, if any, and payment therefor. The Pricing Agreement
also shall specify the summary terms of such Designated Securities. The Pricing Agreement,
including these standard provisions incorporated therein by reference, is referred to as “this
Agreement”. A Pricing Agreement shall be in the form of an executed writing, which may be in
counterparts, and may be evidenced by an exchange of email communications or any other rapid
transmission device designed to produce a written record of communications transmitted. If there
is more than one Underwriter for the Designated Securities, the obligations of those Underwriters
under this Agreement shall be several and not joint.
The terms and rights of any particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and: (i) if the Designated Securities are either senior
or subordinated debt securities (“Debt Securities”), in or pursuant to the senior or subordinated
indenture (the “Indenture”) identified in the Pricing Agreement; (ii) if the Designated Securities
are warrants (“Warrants”), in or pursuant to a warrant agreement (the “Warrant Agreement”)
identified in the Pricing Agreement; and (iii) if the Designated Securities are debt securities
subject to the Warrants (“Warrant Debt Securities”), in or pursuant to the indenture identified in
the Pricing Agreement.
1. Representations and Warranties. The Company represents and warrants to each Underwriter
named in Schedule I to the applicable Pricing Agreement, as of the date thereof and as of the Time
of Delivery (as defined in Section 3) as follows:
(a) An automatic shelf registration statement (the “Registration Statement”) (No.
333-151753) on Form S-3 in respect of the Designated Securities has been filed with the
Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended (the “Securities Act”), and has become effective under the Securities Act, and each
Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”). The term “Registration Statement” as of any time means the
registration statement as amended by any amendment thereto as of such time, registering the
offer and sale of the Designated Securities, among other securities, in the form then filed
by the Company with the Commission, including any document incorporated by reference therein
and any prospectus or prospectus supplement deemed to be a part thereof at such time, that
has not been superseded or modified. “Registration Statement” without reference to a time
means the registration statement as amended as of the time of the first contract of sale for
the Designated Securities, which time shall be considered the “new effective date” of such
registration statement, as amended, with respect to the Designated Securities (within the
meaning of Rule 430B(f)(2)). For purposes of this definition, information contained in a
form of prospectus or prospectus supplement that is retroactively deemed to be a part of
such
registration statement, as amended, pursuant to Rule 430B or Rule 430C shall be
considered to be included in such registration statement, as amended, as of the time
specified in Rule
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430B or 430C, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or the use of any prospectus and no notice
pursuant to Rule 401(g)(2) have been issued and no proceeding for that purpose has been
initiated or, to the best of the Company’s knowledge, threatened by the Commission. The
term “Statutory Prospectus” means, collectively, (i) the prospectus relating to the various
securities of the Company, including the Designated Securities, that is included in the
Registration Statement (the “Base Prospectus”) and (ii) any preliminary prospectus
supplement that the Company provided to the Underwriters for conveyance to investors prior
to the execution of the applicable Pricing Agreement and filed by the Company with the
Commission pursuant to Rule 424(b), in each case, including any document incorporated by
reference therein. For purposes of this definition, information contained in a form of
prospectus (including a prospectus supplement) that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B or 430C shall be considered to be included
in the Statutory Prospectus only as of the actual time that such form of prospectus
(including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b).
The term “Prospectus” means, collectively, the Base Prospectus and the final prospectus
supplement relating to the Designated Securities filed by the Company with the Commission
pursuant to Rule 424(b) that discloses any initial public offering price and other final
terms of the Designated Securities and otherwise satisfies Section 10(a) of the Securities
Act. The term “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433, relating to the Designated Securities in the form filed or required
to be filed by the Company with the Commission, or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g).
(b) The Registration Statement, the Prospectus and the Statutory Prospectus conform,
and any further amendments or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder.
(c) The documents incorporated by reference in the Prospectus and the General
Disclosure Package (as defined below), when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the requirements of
the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
as applicable, and the rules and regulations of the Commission thereunder. Any further
documents so filed and incorporated by reference in the Prospectus and the General
Disclosure Package or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder.
(d) The Registration Statement as of each effective date did not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus does not contain
an 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. The representations and warranties in this Section 2(d) shall not
apply to (i) any statements or omissions made in reliance upon and in conformity with
information
furnished in writing to the Company by an Underwriter of Designated Securities through
the
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Representatives expressly for use in the Prospectus or (ii) any Form T-1 Statement of
Eligibility included as an exhibit to the Registration Statement.
(e) As of the Applicable Time (as defined in the applicable Pricing Agreement), the
Issuer Free Writing Prospectus(es) identified on Schedule III to the applicable Pricing
Agreement, the Final Term Sheet (as defined below) and the Statutory Prospectus, all
considered together (collectively, the “General Disclosure Package”), did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in or omissions from
any documents included in the General Disclosure Package based upon written information
furnished to the Company by any Underwriter of Designated Securities through the
Representatives expressly for use therein.
(f) Each Issuer Free Writing Prospectus, as of its issue date, as of the date hereof
and at all subsequent times through the completion of the offer and sale of the Designated
Securities (unless the Issuer shall have provided the notice referred to in the next
sentence), did not, does not and will not include any information that conflicted, conflicts
or will conflict (within the meaning of Rule 433(c) under the Securities Act) with the
information then contained in the Registration Statement, the General Disclosure Package or
the Prospectus. If prior to the completion of the offer and sale of the Designated
Securities at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted, conflicts or would conflict with the information then contained in
the Registration Statement, the General Disclosure Package or the Prospectus or included,
includes or would include an untrue statement of a material fact or omitted, omits or would
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances prevailing at that subsequent time, not misleading, the Company
represents that it (i) will promptly notify the Representatives of the Underwriters and (ii)
will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
(g) The Registration Statement is an “automatic shelf registration statement” as
defined in Rule 405, that initially became effective within three years of the date hereof.
The conditions to the use of the Form S-3 automatic shelf registration statement in
connection with the offering and sale of the Designated Securities have been satisfied. As
of the determination date applicable to the Registration Statement or any amendment thereto
and the offering of the Designated Securities thereunder, the Company was a “well-known
seasoned issuer” as defined in Rule 405; and at the time of original filing of the
Registration Statement, at the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide offer (within the meaning
of Rule 164(h)(2)) of the Designated Securities and at the execution of the Pricing
Agreement relating to the Designated Securities, the Company was not an “ineligible issuer”
as defined in Rule 405.
(h) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, and except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus or contemplated by
the Registration Statement, the General Disclosure Package and the Prospectus, there has
not been any material adverse change, or any development reasonably likely to result in
a
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material adverse change, in the business, financial condition or results of operations of
the Company and its subsidiaries taken as a whole.
(i) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in the General Disclosure Package
and the Prospectus.
(j) The Designated Securities have been duly authorized. When the Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing Agreement
with respect to the Firm Securities, and in the case of any Optional Securities pursuant to
Over-allotment Options (as defined in Section 2) with respect to such Optional Securities,
such Designated Securities will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(k) The Indenture has been duly authorized, executed and delivered by the Company. At
each Time of Delivery (as defined in Section 3) for the Designated Securities, the Indenture
will constitute a valid and legally binding instrument, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
The Indenture conforms, and the Designated Securities will conform, to the descriptions
thereof contained in the General Disclosure Package and the Prospectus.
(l) The issue and sale of the Designated Securities by the Company to the Underwriters
will not conflict with or result in a breach or violation of any term or provision of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party that is material to the Company and
its subsidiaries taken as a whole, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, other than any such conflict, breach, violation or default
that is not reasonably likely to result in a material adverse change in the business,
financial condition or results of operations of the Company and its subsidiaries taken as a
whole. No consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body will be required to be obtained by the Company
for the issue and sale by the Company of the Designated Securities being delivered at such
Time of Delivery, except such as have been, or will have been prior to such Time of
Delivery, obtained or made under the Securities Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and distribution of
the Designated Securities by the Underwriters.
(m) The Company maintains (i) effective internal control over financial reporting as
defined in Rule 13a-15 under the Exchange Act, and (ii) a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
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generally accepted accounting principles and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management’s general or specific authorization;
and (D) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(n) The relationship between the Company and each of the Underwriters is an
arms’-length commercial relationship and accordingly, none of the Underwriters are acting as
a financial advisor or fiduciary to the Company or any other person, including with respect
to the determination of terms of the Designated Securities or the offering thereof.
Additionally, none of the Underwriters are advising the Company or any other person as to
any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Company acknowledges and agrees to consult with its own advisors concerning such matters and
that it shall be responsible for making its own independent investigation and appraisal of
the transactions contemplated in this Agreement, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby or other matters relating
to such transactions will be performed solely for the benefit of the Underwriters and shall
not be on behalf of the Company.
(a) Pursuant to a Pricing Agreement applicable to any Designated Securities, and upon
the basis of the representations and warranties, and subject to the conditions set forth, in
this Agreement, the Company will agree to sell to the several Underwriters named in such
Pricing Agreement and such Underwriters will agree to purchase from the Company, severally
and not jointly, at the respective purchase prices set forth in the Pricing Agreement, plus
accrued interest, if any, from the date set forth therein to the date of payment and
delivery: (i) the principal amounts of Debt Securities set forth opposite their names in
Schedule I to such Pricing Agreement, less their respective amounts of the Contract Debt
Securities (as defined below), if any, as determined as provided below; or (ii) Warrants to
purchase the principal amounts of Warrant Debt Securities set forth opposite their names in
Schedule I to such Pricing Agreement, less their respective amounts of the Contract Warrant
Securities (as defined below), if any, as determined as provided below. Debt Securities
and, if applicable, Warrants to be purchased pursuant to delayed delivery contracts are
referred to as “Contract Debt Securities” and “Contract Warrants,” respectively, and
collectively as the “Contract Securities.”
(b) The Company may specify in the Pricing Agreement applicable to any Designated
Securities that the Company thereby grants to the Underwriters the right (an “Overallotment
Option”) to purchase at their election up to the aggregate principal amount of Optional
Securities specified in such Pricing Agreement, on the same terms as the Firm Securities,
for the sole purpose of covering over-allotments in the sale of the Firm Securities. Any
such election to purchase Optional Securities may be exercised by written notice from the
Representatives to the Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate principal amount of Optional Securities to be purchased and the
date on which such Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, earlier than or later than
the
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respective number of business days after the date of such notice set forth in such
Pricing Agreement.
(c) The aggregate principal amount of Optional Securities to be added to the aggregate
principal amount of Firm Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities shall be, in
each case, the aggregate principal amount of Optional Securities that the Company has been
advised by the Representatives have been attributed to such Underwriter. If the Company has
not been so advised, the aggregate principal amount of Optional Securities to be so added
shall be, in each case, that aggregate principal amount of Optional Securities which the
aggregate principal amount of Firm Securities to be purchased by such Underwriter under such
Pricing Agreement bears to the aggregate principal amount of Firm Securities (rounded as the
Representatives may determine to the nearest $1000). The aggregate principal amount of
Designated Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate principal amount of Firm Securities set forth in Schedule I
to such Pricing Agreement plus the aggregate principal amount of Optional Securities which
the Underwriters elect to purchase.
(d) (i) If so indicated in the applicable Pricing Agreement, the Company may
authorize the Underwriters to solicit offers to purchase Contract Securities on the
terms and subject to the conditions set forth therein pursuant to delayed delivery
contracts (“Delayed Delivery Contracts”). Delayed Delivery Contracts are to be with
institutional investors approved by the Company and described in the Prospectus. The
aggregate principal amount of Contract Debt Securities and the aggregate principal
amount of Warrant Debt Securities for which Contract Warrants are exercisable shall
not exceed the respective amounts set forth in the Pricing Agreement. As of the
applicable Time of Delivery, the Company will pay to the Representative as
compensation, for the accounts of the Underwriters, the fee specified in the Pricing
Agreement in respect of all Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
(ii) If the Designated Securities are Debt Securities, the deduction for the
Contract Debt Securities referred to above shall become effective upon the execution
and delivery by the Company and the several institutional investors of the Delayed
Delivery Contracts. Such deduction for each Underwriter shall be in the amount which
shall bear the same proportion to the total principal amount of Contract Debt
Securities as the principal amount of Debt Securities set forth opposite its name in
such Pricing Agreement bears to the aggregate principal amount of Debt Securities set
forth in such Pricing Agreement.
(iii) If the Designated Securities are Warrants and Debt Warrant Securities, the
deduction for the Contract Warrants referred to above shall become effective upon the
execution and delivery by the Company and the several institutional investors of the
Delayed Delivery Contracts. Such deduction for each Underwriter shall be in the
amount which shall bear the same proportion to the total principal amount of Debt
Warrant Securities for which Contract Warrants are exercisable as the principal
amount of Debt Warrant Securities for which Warrants are exercisable as set
forth opposite its
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name in such Pricing Agreement bears to the aggregate principal
amount of Debt Warrant Securities for which Warrants are exercisable as set forth in
such Pricing Agreement.
3. Payment. Firm Securities and Optional Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in such Pricing Agreement
and in such authorized denominations and registered in such names as the Representatives may
request upon at least 48 hours’ prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to the Representatives at least 48 hours in advance
as specified in such Pricing Agreement:
(i) with respect to the Firm Securities, all in the manner and at the place and time
and date specified in such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date being called
the “First Time of Delivery”; and
(ii) with respect to the Optional Securities, if any, in the manner and at the time and
date specified by the Representatives in the written notice given by the Representatives of
the Underwriters’ election to purchase such Optional Securities, or at such other time and
date as the Representatives and the Company may agree upon in writing, such time and date,
if not the First Time of Delivery, herein called the “Second Time of Delivery”.
Each such time and date for delivery is called a “Time of Delivery”.
4. Covenants. The Company agrees with each of the Underwriters of any Designated Securities
that:
(a) It will prepare the Statutory Prospectus and the Prospectus, as amended or
supplemented in relation to the applicable Designated Securities in a form approved by the
Representatives and will file the Statutory Prospectus and the Prospectus pursuant to, and
within the time frame specified by, Rule 424(b) of the Securities Act Regulations.
(b) The Company represents and agrees that, unless it obtains the prior written consent
of the Representatives, and each Underwriter represents and agrees that, unless it obtains
the prior written consent of the Company and the Representatives, it has not made and will
not make any offer relating to the Designated Securities that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”, as
defined in Rule 405 under the Securities Act, required to be filed with the Commission;
provided, however, that the Issuer Free Writing Prospectuses listed in Schedule III to the
applicable Pricing Agreement shall be deemed consented to by the Representatives. Any such
free writing prospectus consented to in writing, or deemed consented to, in accordance with
the preceding sentence is referred to herein as a “Permitted Free Writing Prospectus”. The
Company represents that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and has complied and will comply
with the requirements of Rule 433 under the Securities Act applicable to each and every
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Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping.
(c) The Company will prepare a final term sheet that will include the final terms of
the Designated Securities and their offering in the form specified in Schedule IV to the
applicable Pricing Agreement (the “Final Term Sheet”) and, subject to the consent of the
Representatives, will file such Final Term Sheet within the period required by Rule
433(d)(5)(ii). Any such Final Term Sheet is an Issuer Free Writing Prospectus and a
Permitted Free Writing Prospectus for purposes of this Agreement. Notwithstanding anything
to the contrary contained herein, the Company consents to the use by any Underwriter of a
free writing prospectus that contains only (a)(i) information describing the preliminary
terms of the Designated Securities or their offering or (ii) information that describes the
final terms of the Designated Securities or their offering and that is or is to be included
in the Final Term Sheet of the Company contemplated above or (b) other customary information
that is neither “issuer information,” as defined in Rule 433 under the Securities Act, or
otherwise an Issuer Free Writing Prospectus.
(d) It will not make any amendment or supplement to the Registration Statement, the
Prospectus or the General Disclosure Package after the Applicable Time relating to such
Designated Securities and prior to the Time of Delivery for such Designated Securities that
shall be disapproved by the Representatives for such Designated Securities promptly after
reasonable notice thereof.
(e) It will advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery for such Designated Securities and will furnish the
Representatives with copies thereof.
(f) It promptly will file all reports and any definitive proxy or information
statements required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is required (or but
for the exemption in Rule 172 would be required) in connection with the offering or sale of
such Designated Securities, and during such same period it will advise the Representatives,
promptly after it receives notice thereof, of:
(i) the time when any amendment to the Registration Statement has been filed or
becomes effective or any amendment or supplement to the Statutory Prospectus or the
Prospectus has been filed with the Commission;
(ii) the issuance by the Commission of any stop order or of any order preventing
or suspending the effectiveness of the Registration Statement or the use of any
prospectus relating to the Designated Securities;
(iii) the suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction; and
(iv) the initiation or threatening of any proceeding for any such purpose or of
any request by the Commission with respect to amending or supplementing the
Registration Statement, Statutory Prospectus or Prospectus or for additional
9
information and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, promptly use its best
efforts to obtain the withdrawal of such order.
(g) It promptly will take such action as the Representatives reasonably may request to
qualify such Designated Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives reasonably may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of such Designated Securities. 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 jurisdiction.
(h) Prior to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of the applicable Pricing Agreement and from time to time, it will
deliver written and electronic copies of the Prospectus as amended or supplemented to the
Underwriters in New York City, in such quantities as the Representatives reasonably may
request. If the delivery of a prospectus is required (or but for the exemption in Rule 172
would be required) at any time in connection with the offering or sale of the Designated
Securities and if at such time any event shall have occurred as a result of which the
General Disclosure Package or the Prospectus as then amended or supplemented would include
an 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
when such Prospectus is delivered, not misleading, or if for any other reason it shall be
necessary during such same period to amend or supplement the Registration Statement, the
General Disclosure Package or the Prospectus, to file under the Exchange Act any document
incorporated by reference in the Registration Statement, the General Disclosure Package or
the Prospectus in order to comply with the Securities Act, the Exchange Act or the Trust
Indenture Act or to file a new registration statement pursuant to Section 4(k), the Company
will notify the Representatives and upon their request will file such document and prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
written and electronic copies as the Representatives from time to time reasonably may
request of an amended Registration Statement, General Disclosure Package or Prospectus or a
supplement to the Registration Statement, the General Disclosure Package or the Prospectus
that will correct such statement or omission or effect such compliance or filing, as
applicable.
(i) It will make generally available to its securityholders as soon as practicable, but
in any event not later than 18 months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the Securities Act Regulations.
(j) During the period beginning from the date of the Pricing Agreement for such
Designated Securities and continuing to and including the later of (i) the termination of
trading restrictions for such Designated Securities as notified to the Company by the
Representatives and (ii) the last Time of Delivery for such Designated Securities, it will
not offer, sell, contract to sell or otherwise dispose of any debt securities that mature
more than one year after such
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Time of Delivery and that are substantially similar to such Designated Securities,
without the prior written consent of the Representatives.
(k) If immediately prior to the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Designated Securities
remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if
it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Designated Securities, in a form satisfactory to the
Representatives. If the Company is no longer eligible to file an automatic shelf
registration statement, the Company will prior to the Renewal Deadline, if it has not
already done so, file a new shelf registration statement relating to the Designated
Securities, in a form satisfactory to the Representatives, and will use its best efforts to
cause such registration statement to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or appropriate to permit the
public offering and sale of the Designated Securities to continue as contemplated in the
expired registration statement relating to the Designated Securities. References herein to
the “Registration Statement” shall include such new automatic shelf registration statement
or such new shelf registration statement, as the case may be.
(l) If at any time when Designated Securities remain unsold by the Underwriters the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases
to be eligible to use the automatic shelf registration statement form, the Company will (i)
promptly notify the Representatives, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Designated Securities, in a form
satisfactory to the Representatives, (iii) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Designated Securities to continue
as contemplated in the registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible. References herein to the
“Registration Statement” shall include such new registration statement or post-effective
amendment, as the case maybe.
(m) The Company agrees to pay the required Commission filing fees relating to the
Designated Securities within the time required by Rule 456(b)(1) of the Securities Act
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Securities Act.
5. Payment of Expenses. The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Securities Act and all other
expenses in connection with the preparation, printing and filing of the Registration
Statement, the Statutory Prospectus, any Issuer Free Writing Prospectus, the Final Term
Sheet and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers;
(ii) all expenses in connection with the qualification of the Securities for offering
and sale under the United States state securities laws, including the reasonable fees and
11
disbursements of counsel for the Underwriters in connection with such qualification and
in connection with any Blue Sky Memorandum or Legal Investment Survey;
(iii) any fees charged by securities rating services for rating the Securities;
(iv) any filing fees incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, any required review by the Financial Industry
Regulatory Authority (FINRA) of the terms of the sale of the Securities;
(v) the cost of printing or reproducing the Securities; and
(vi) the fees and expenses of any Trustee and any agent of any Trustee and the
reasonable fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities.
Except as provided in this Section 5, and Sections 7 and 10, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the
Designated Securities by them and any advertising expenses connected with any offers they may make.
6. Conditions of the Underwriters’ Obligations. The obligations of the Underwriters of any
Designated Securities under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Statutory Prospectus and the Prospectus as amended or supplemented in relation
to such Designated Securities shall have each been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section 4(a). No stop order
suspending the effectiveness of the Registration Statement or any part thereof or the use of
any prospectus and no notice pursuant to Rule 401(g)(2) shall have been issued and no
proceeding for those purposes shall have been initiated or, to the knowledge of the Company,
threatened by the Commission. All requests for additional information on the part of the
Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) Counsel for the Underwriters shall have furnished to the Representatives such
written opinion or opinions, dated each Time of Delivery for such Designated Securities,
with respect to the valid existence of the Company, the validity of the Designated
Securities, the disclosure in the Registration Statement, the General Disclosure Package and
the Prospectus and such other related matters as the Representatives reasonably may request,
and such counsel shall have received such documents and information as they reasonably may
request to enable them to pass upon such matters.
12
(c) The Company’s in-house counsel shall have furnished to the Representatives his or
her written opinion or opinions, dated the Time of Delivery for such Designated Securities,
in form and substance reasonably satisfactory to the Representatives.
(d) Xxxxxx, Xxxx & Xxxxxxxx LLP, or other counsel for the Company satisfactory to the
Representatives, shall have furnished to the Representatives a written opinion or opinions,
dated the Time of Delivery for such Designated Securities, in form and substance reasonably
satisfactory to the Representatives.
(e) At each Time of Delivery for such Designated Securities, the independent
accountants of the Company who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated such Time of Delivery, containing
statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the Company’s financial statements and certain financial
information contained or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus.
(f) Except as set forth in or contemplated by the Registration Statement, the General
Disclosure Package or the Prospectus, there shall not have occurred any change, or any
development reasonably likely to result in a change, in or affecting the business, financial
condition or results of operations of the Company and its subsidiaries taken as a whole, the
effect of which is in the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the delivery of the
Firm Securities or Optional Securities or both on the terms and in the manner contemplated
in the General Disclosure Package or the Prospectus as amended or supplemented relating to
the Designated Securities.
(g) On or after the execution of the Pricing Agreement relating to the Designated
Securities: (i) no downgrading shall have occurred in the rating accorded the Company’s
debt securities or preferred stock or the Company’s financial strength or claims paying
ability by any “nationally recognized statistical rating organization”, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and
(ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt
securities or preferred stock or the Company’s financial strength or claims paying ability.
(h) On or after the execution of the Pricing Agreement relating to the Designated
Securities there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company’s securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war; or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment
of the Representatives makes it impracticable or
13
inadvisable to proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the General Disclosure Package and
the Prospectus as amended or supplemented relating to the Designated Securities.
(i) The Company shall have furnished or caused to be furnished to the Representatives
at each Time of Delivery for the Designated Securities a certificate or certificates of the
Company, executed on behalf of the Company by its chief financial officer and treasurer,
satisfactory to the Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery and as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such Time of
Delivery.
(a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement, the General Disclosure Package, any Issuer Free
Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities through the
Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the General Disclosure
Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged omission was made
in any of such documents, in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or claim as
such expenses are incurred.
14
(c) Promptly after receipt by an indemnified party under Section 7(a) or (b) of notice
of the commencement of any action, such indemnified party, if a claim in respect thereof is
to be made against the indemnifying party under Section 7(a) or (b), shall notify the
indemnifying party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under Section 7(a) or (b). In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under Section 7(a) or (b) for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation. Without
the written consent of the indemnified party, no indemnifying party shall effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under Section 7(a) or (b) in respect of
any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters of the Designated Securities on
the other from the offering of the Designated Securities to which such loss, claim, damage
or liability (or action in respect thereof) relates. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 7(c), then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the Company on
the one hand and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company on the one
hand or such Underwriters on the other and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The
15
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this
Section 7(d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in this
Section 7(d) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. If there is more than one Underwriter
for the Designated Securities, the obligations of the Underwriters of Designated Securities
in this Section 7(d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Designated Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this Section 7 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of the Securities Act.
(a) If any Underwriter shall default in its obligation to purchase the Firm Securities
or Optional Securities which it has agreed to purchase under the Pricing Agreement relating
to such Designated Securities, the Representatives in their discretion may arrange for
themselves or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within 36 hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Securities or Optional
Securities, as the case may be, then the Company shall be entitled to a further period of
36 hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of Delivery for
such Designated Securities for a period of not more than seven days, in order to effect
whatever changes thereby may be made necessary in the Registration Statement, the General
Disclosure Package or the Prospectus as amended or supplemented, or in any other documents
or arrangements, and the Company promptly will file any amendments or supplements to the
Registration Statement, the Statutory Prospectus or the Prospectus that in
the opinion of the Representatives thereby may be made necessary. The term
“Underwriter”
16
as used in this Agreement shall include any person substituted under this
Section 8 with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Firm Securities
or Optional Securities, as the case may be, of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in Section 8(a), the aggregate principal
amount of such Designated Securities that remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of the Firm Securities or Optional Securities, as the case
may be, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Firm Securities or Optional Securities, as the case may be,
that such Underwriter agreed to purchase under the Pricing Agreement relating to such Firm
Securities or Optional Securities, as the case may be, and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
Firm Securities or Optional Securities, as the case may be, that such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Securities or Optional Securities, as the
case may be, of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
(c) If, after giving effect to any arrangements for the purchase of the Firm Securities
or Optional Securities, as the case may be, of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in Section 8(a), the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be, that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the Firm Securities or
Optional Securities, as the case may be, as referred to in Section 8(b), or if the Company
shall not exercise the right described in Section 8(b) to require non-defaulting
Underwriters to purchase the Firm Securities or Optional Securities, as the case may be, of
a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Firm
Securities or Optional Securities, as the case may be, shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section 5 and the
indemnity and contribution agreements in Section 7; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
9. Survival. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation or any statement as to the results thereof made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any
officer or director or controlling person of the Company, and shall survive delivery of and payment
for the Designated Securities.
10. Termination. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 8, the Company shall not then be under any liability to any Underwriter with
respect to the Firm Securities or Optional Securities covered by such Pricing Agreement except as
provided in Sections 5 and 7; but, if for any other reason Designated Securities are not delivered
by
or on behalf of the Company as provided herein, other than the occurrence of an event
described in
17
Section 6(h)(i), (iii), (iv) or (v), the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Sections 5 and 7.
11. Representatives. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto
shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
12. Notices. All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Representatives as set forth in the Pricing Agreement; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 7(c) shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. Parties. This Agreement (including each Pricing Agreement) shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in
Sections 7 and 9, the officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors, administrators, successors and
assigns. No other person shall acquire or have any right under or by virtue of this Agreement
(including any such Pricing Agreement). No purchaser of any of the Designated Securities from any
Underwriter shall be deemed a successor or assign merely by reason of such purchase.
14. Time. Time shall be of the essence of each Pricing Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in Washington, DC is open for
business.
15. Governing Law. This Agreement (including each Pricing Agreement) shall be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement (including each Pricing Agreement) may be executed by any
one or more of the parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together constitute one and
the same instrument.
18
Pricing Agreement
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
X.X. Xxxxxx Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
One Bryant Park
New York, NY 10036
New York, NY 10036
March 2, 2009
Ladies and Gentlemen:
Pitney Xxxxx Inc., an Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, Standard Provisions, dated March 2,
2009 (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I (the
“Underwriters”) the Securities specified in Schedule II (the “Designated Securities”), consisting
of Firm Securities and any Optional Securities the Underwriters may elect to purchase. Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in its entirety and
shall be deemed to be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein. Each of the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus or the General Disclosure Package in
Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein defined) or the
General Disclosure Package, and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus or the General Disclosure Package, as amended or
supplemented prior to the execution of this Pricing Agreement, relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to act on behalf of
the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section 11 of the Underwriting Agreement and the address of the Representatives referred to in
Section 12 of the Underwriting Agreement are set forth in Schedule II.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may
be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed
to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference: (i) the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at the time and place and at the purchase price to the Underwriters set forth in
Schedule II, the principal amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I; and (ii) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Securities, as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II that portion of the principal amount of Optional Securities as to which such election
shall have been exercised.
The Company hereby grants to each of the Underwriters the right to purchase at their election
up to the principal amount of Optional Securities set forth opposite the name of such Underwriter
in Schedule I on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to purchase Optional
Securities may be exercised by written notice from the Representatives to the Company given within
a period of 30 calendar days after the date of this Pricing Agreement, setting forth the principal
amount of Optional Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by the Representatives, but in no event earlier than the First Time of
Delivery or, unless the Representatives and the Company otherwise agree in writing, no earlier than
two or later than ten business days after the date of such notice.
2
If the foregoing is in accordance with your understanding, please sign and return to us nine
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the authority of the signers
thereof.
3
| Very truly yours, Pitney Xxxxx Inc. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Vice President and Treasurer | |||
| Accepted as of the date hereof: Banc of America Securities LLC |
|||
| By: | /s/ Xxxxx X. Xxxxxxx | ||
| Name: | Xxxxx X. Xxxxxxx | ||
| Title: | Vice President | ||
| X.X. Xxxxxx Securities Inc. |
|||
| By: | /s/ Xxxxx Xxxxxx | ||
| Name: | Xxxxx Xxxxxx | ||
| Title: | Executive Director | ||
On behalf of themselves and the other
Underwriters
Underwriters
4
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Designated | ||||
| Securities | ||||
| to be | ||||
| Underwriter | Purchased | |||
Banc of America Securities LLC |
$ | 118,500,000 | ||
Credit Suisse Securities (USA) LLC |
$ | 21,000,000 | ||
Xxxxxxx, Xxxxx & Co. |
$ | 21,000,000 | ||
X.X. Xxxxxx Securities Inc. |
$ | 118,500,000 | ||
RBC Capital Markets Corporation |
$ | 21,000,000 | ||
Total |
$ | 300,000,000 | ||
SCHEDULE II
DESIGNATED SECURITIES
DESIGNATED SECURITIES
Title of Designated Securities:
6.25% Notes due March 2019
Applicable Time:
5:45 p.m. (New York City time), March 2, 2009
Rank: Senior
Aggregate principal amount:
$300,000,000
Initial Public Offering Price:
99.821% of the principal amount of the Designated Securities
Purchase Price by Underwriters:
99.171% of the principal amount of the Designated Securities
Form of Designated Securities:
Book-entry only form represented by a global security deposited with The Depository Trust
Company (“DTC”) or its designated custodian.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
9:00 a.m. (New York City time), March 5, 2009
Indenture:
Indenture dated as of February 14, 2005 (the “Initial Indenture”), between the Company and
Citibank, N.A., as trustee, and the First Supplemental Indenture (the “First Supplemental
Indenture”, and together with the Initial Indenture, the “Indenture”), dated as of October
23, 2007 by and among the Company, The Bank of New York Mellon, as successor trustee (the
“Trustee”) and Citibank, N.A., as resigning trustee.
Stated Maturity Date:
March 15, 2019
Interest Rate:
6.25% per year
Interest Payment Dates:
15th of every March and September, commencing September 15, 2009
Regular Record Dates:
1st of every March and September.
Currency of Denominations:
United States dollars
Currency of Payment:
United States dollars
Optional Redemption Reinvestment Rate: T + 50bps
Sinking Fund Provisions:
No sinking fund provisions
Closing Location for Delivery of Designated Securities:
Offices of Sidley Austin LLP, New York, New York
Listing Requirements:
None
Additional Closing Conditions:
None
Dealer Concessions: 0.40%
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Reallowance Concession: 0.25%
Names and addresses of Representatives:
Banc of America Securities LLC
Xxx Xxxxxx Xxxx
XX0-000-00-00
Xxx Xxxx, XX 00000
Attention: High Grade Transaction Management/Legal
Fax No. 000-000-0000
Xxx Xxxxxx Xxxx
XX0-000-00-00
Xxx Xxxx, XX 00000
Attention: High Grade Transaction Management/Legal
Fax No. 000-000-0000
X.X. Xxxxxx Securities Inc
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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SCHEDULE III
ISSUER FREE WRITING PROSPECTUS
1. Final Term Sheet, dated March 2, 2009
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SCHEDULE IV
FORM OF FINAL TERM SHEET
Dated: March 2, 2009
Issuer: Pitney Xxxxx Inc.
Size: $300,000,000
Stated Maturity Date: March 15, 2019
Coupon (Interest Rate): 6.25% per year
Yield to Maturity: 6.274% per year
Spread to Benchmark Treasury: T+337.5 bps
Benchmark Treasury: 2.750% 2/15/2019
Benchmark Treasury Price and Yield: 98-23; 2.899%
Interest Payment Dates: 15th of every March and September, commencing September 15th, 2009 (Record
dates: 1st of March and September)
Optional Redemption Reinvestment Rate: T+50 bps
Price to Public: 99.821% plus accrued interest from March 5, 2009
Settlement Date: March 5, 2009 (T+3)
Underwriters:
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Credit Suisse Securities (USA) LLC
Xxxxxxx, Xxxxx & Co.
RBC Capital Markets Corporation
X.X. Xxxxxx Securities Inc.
Credit Suisse Securities (USA) LLC
Xxxxxxx, Xxxxx & Co.
RBC Capital Markets Corporation
CUSIP: 724479 AH3
Ratings: A1 / A (Stable / Stable)
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The Issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the Issuer has filed with
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the SEC for more complete information about the Issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC website at xxx.xxx.xxx. Alternatively, the Issuer,
any Underwriter or any dealer participating in the offering will arrange to send you the prospectus
if you request it by calling Banc of America Securities LLC at (000) 000-0000, X.X. Xxxxxx
Securities Inc. at (000) 000-0000, or Investor Relations of the Issuer collect at (000) 000-0000.
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