EXHIBIT 1(a)
PITNEY XXXXX INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
April __, 1998
To the Representatives of the
Several Underwriters named in
the respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Pitney Xxxxx Inc. (the "Company") proposes to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, 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 (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts (as defined in Section 3 hereof), if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, any Designated
Securities to be covered by Delayed Delivery Contracts being herein sometimes
referred to as "Contract Securities" and the Designated Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) being herein sometimes referred to as "Underwriters'
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.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). 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. 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 the Securities or
as a limitation on the right of the Company to execute Pricing Agreements
with any Underwriter. The obligation of the Company to issue and sell any
of the Securities and the obligation of any of the Underwriters to purchase
any of the 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 such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities,
the names of the Representatives of such Underwriters, the principal amount
of such Designated Securities to be purchased by each Underwriter and
whether any of such Designated Securities shall be covered by Delayed
Delivery Contracts and the commission payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing Agreement
shall also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of
such Designated Securities. 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 telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) Registration statements in respect of the
Securities have been filed with the Securities and Exchange
Commission (the "Commission"); each such registration
statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statements, but including all documents incorporated by
reference in the prospectus contained in the latest
registration statement, to the representatives for the other
Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b)
registration statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"),
which becomes effective upon filing, no other document with
respect to each such registration statement or document
incorporated by reference therein has heretofore been filed
or transmitted for filing with the Commission; and no stop
order suspending the effectiveness of any such registration
statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any
preliminary prospectus included in any such registration
statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under
the Act, being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration
statements and the Rule 462(b) registration statement, if
any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statements at the time such part of each
registration statement became effective or the Rule 462(b)
registration statement, if any, becomes effective but
excluding Form T-1, and, if applicable, including the
information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of any such registration
statement, each as amended at the time such part of the
registration statement became effective or such part of the
Rule 462(b) registration statement, if any, becomes
effective being hereinafter collectively called the
"Registration Statement", the prospectus relating to the
Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act, or to any
Rule 462(b) registration statement in accordance with
Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, 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 Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference
in the Prospectus 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 Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will 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; provided, however, that
this representation and warranty shall not apply to 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 Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements thereto
will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or
supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to 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 Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries, or any material
adverse change, or any development involving a prospective
material adverse change, in or affecting the general
affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(e) 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 power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to
such Designated Securities and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts with
respect to such Contract Securities, such Designated
Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in
the form filed as an exhibit to the Registration Statement;
the Indenture has been duly authorized and, at the Time of
Delivery (as defined in Section 4 hereof) the Indenture will
be duly qualified under the Trust Indenture Act and will
constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Underwriters' Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) In the event any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized by the Company
and, when executed and delivered by the Company and the
purchaser named therein, will constitute a valid and legally
binding agreement of the Company in accordance with its
terms; and any Delayed Delivery Contracts conform to the
description thereof in the Prospectus;
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and any Pricing Agreement,
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is
bound, or to which any of the property or assets of the
Company is subject 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, as amended, or the 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 or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or
with any such court or governmental agency or body is
required for the issue and sale of the Securities or the
consummation by the Company of the other transactions
contemplated by this Agreement or any Pricing Agreement or
the Indenture or any Delayed Delivery Contract, except such
as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under
the captions "Description of Debt Securities" and
"Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities, and
under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(k) Neither the Company nor any of its material
subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of
its properties may be bound;
(l) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries would individually
or in the aggregate have a material adverse effect on the
current consolidated financial position, stockholders'
equity, results of operations or prospects of the Company
and its subsidiaries, taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(m) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
(n) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate
located in Cuba; and
(o) Price Waterhouse LLP, who have certified certain
financial statements of the Company and its subsidiaries,
are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of the Underwriters' Securities, the several Underwriters propose
to offer the Underwriters' Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If
so specified, the Underwriters will endeavor to make such arrangements, and
as compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in Section 4
hereof), such commission, if any, as may be set forth in such Pricing
Agreement. Delayed Delivery Contracts, if any, are to be with investors of the
types described in the Prospectus and subject to other conditions therein set
forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from
the principal amount of Designated 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 principal amount of
Contract Securities which the Company has been advised by the Representatives
have been attributed to such Underwriter, provided that, if the Company has not
been so advised, the amount of Contract Securities to be so deducted shall be,
in each case, that proportion of Contract Securities which the principal amount
of Designated Securities to be purchased by such Underwriter under such
Pricing Agreement bears to the total principal amount of the Designated
Securities (rounded as the Representatives may determine). The total principal
amount of Underwriters' Securities to be purchased by all the Underwriters
pursuant to such Pricing Agreement shall be the total principal amount of
Designated Securities set forth in Schedule I to such Pricing Agreement less
the principal amount of the Contract Securities. The Company will deliver to
the Representatives not later than 3:30 p.m. New York time, on the business
day preceding the Time of Delivery specified in the applicable Pricing
Agreement (or such other time and date as the Representatives and the Company
may agree upon in writing) a written notice setting forth the principal amount
of Contract Securities.
4. Underwriters' 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 twenty-four 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 in immediately available funds to
an account of the Company as specified in such Pricing Agreement, 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 herein
called the "Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters by wire transfer in immediately available
funds to the order of the party designated in the Pricing Agreement relating
to such Securities the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
Section 3 hereof and in the Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a
form approved by the Representatives and to file such
Prospectus pursuant to Rules 424(b) or 462(b) under the Act,
as applicable, not later than the Commission's close of
business on the business day so required by Rule 424(b), if
applicable, following the execution and delivery of the
Pricing Agreement relating to the applicable Designated
Securities; to make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement
relating to such Securities and prior to the Time of
Delivery for such Securities which shall be disapproved by
the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time
of Delivery and furnish the Representatives with copies
thereof; to file within the basic periods required under the
applicable rules and regulations under the Exchange Act all
reports and any definitive proxy or information statements
required to be filed by the Company 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 in connection with the offering or sale of the
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed or
transmitted for filing with the Commission, of the issuance
by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional 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 Securities or suspending any such qualification, to
promptly use its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as
the Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws
of such jurisdictions as the Representatives 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
Securities, provided 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 jurisdiction;
(c) Prior to 12:00 noon on the New York Business Day
(as defined below) next succeeding the date of any Pricing
Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus as amended or supplemented in
New York City in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale
of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary
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 Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such
compliance; "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in New York are generally
authorized or obligated by law or executive order to close;
(d) To make generally available to its security holders
as soon as practicable but in any event not later than
eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries, if
any (which need not be audited), covering a twelve-month
period beginning after the date of the Pricing Agreement
relating to the relevant Designated Securities, and
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the
option of the Company Rule 158); and
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and
continuing to and including the earlier of (i) the
termination of trading restrictions for such Designated
Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated
Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several
Underwriters that 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
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of printing and producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Delayed Delivery
Contracts, any Blue Sky Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii)
all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky Memoranda; (iv) any fees charged by securities rating
services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee and, unless agreed
to be paid by the Trustee, of any agent of any Trustee and any fees and
disbursements of counsel for any Trustee in connection with any Indenture
and the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, 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 Securities by them, and any advertising
expenses connected with any offers they may make.
7. 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 such Pricing Agreement are, at and as of the
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 Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall have
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 Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely
on Rule 462(b), the Rule 462(b) registration statement has
become effective by 10:00 p.m. Washington, D.C. time, on
the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and 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 opinion or opinions, dated the
Time of Delivery for such Designated Securities, with
respect to the incorporation of the Company, the validity of
the Indenture, the Designated Securities, the Delayed
Delivery Contracts, if any, the Registration Statement, the
Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon
such matters;
(c) The General Counsel for the Company shall have
furnished to the Representatives her written opinion, dated
the Time of Delivery for such Designated Securities, in form
and substance satisfactory to the Representatives and as set
forth in Annex II hereto.
(d) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to
the Representatives and as set forth in Annex III hereto.
(e) On the date of the Pricing Agreement for such
Designated Securities at a time prior to the execution of
the Pricing Agreement with respect to such Designated
Securities and at the 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 the effective date of the
Registration Statement or the date of the most recent report
filed with the Commission containing financial statements
and incorporated by reference in the Registration Statement,
if the date of such report is later than such effective
date, and a letter dated such Time of Delivery to the effect
set forth in Annex IV hereto and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its
subsidiaries, if any, shall have sustained since the date of
the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or
from any court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, prior to the date of
the Pricing Agreement relating to the Designated Securities
and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented prior
to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change
in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, management, financial position, stockholder's
equity or results of operations of the Company and its
subsidiaries, if any, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented,
prior to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case
described in Clause (i) or (ii), 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 Designated Securities on the
terms and in the manner contemplated in the Prospectus as
first amended or supplemented relating to the Designated
Securities;
(g) On or after the date 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 by any "nationally
recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2)
under the 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;
(h) On or after the date 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 general moratorium on
commercial banking activities declared by either Federal or
New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or
war, if the effect of any such event specified in this
clause (iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities on
the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated
Securities;
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for
the Designated Securities a certificate or certificates of
officers of the Company 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, as to
the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and
(f) of this Section, and as to such other matters as the
Representatives may reasonably request; and
(j) The Company shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding
the date of any Pricing Agreement.
8. (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 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, any Preliminary Prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, 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 Preliminary Prospectus, any
Preliminary Prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement 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 in the Prospectus as amended or supplemented relating to such Securities.
(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 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, any Preliminary Prospectus
supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to
the Securities, 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
Preliminary Prospectus, any Preliminary Prospectus
supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement 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.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or
potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party 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
8 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such
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 subsection (c)
above, 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 Company and the
Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (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 above in this
subsection (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
above in this subsection (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 subsection (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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8
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 Act; and the
obligations of the Underwriters under this Section 8 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 Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under
the Pricing Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters' 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 Underwriters' Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Underwriters' Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Underwriters' Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section 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 Underwriters' Securities of a defaulting
Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate
principal amount of such Underwriters' Securities which
remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Designated Securities,
then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement)
of the Underwriters' Securities 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 Underwriters' Securities of a defaulting
Underwriter or Underwriters by the Representatives and the
Company as provided in subsection (a) above, the aggregate
principal amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal
amount of the Designated Securities, as referred to in
subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non-
defaulting Underwriters to purchase Underwriters' Securities
of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities
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 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
10. 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 Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for
any other reason Underwriters' Securities are not delivered by or on behalf of
the Company as provided herein, 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 Section 6 and Section 8
hereof.
12. 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.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail 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 registered mail or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Corporate
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
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. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of the Underwriters, the Company and, to
the extent provided in Section 8 and Section 10 hereof, 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, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any
of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. 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, D.C. is normally open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New
York.
16. This Agreement and 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.
Very truly yours,
PITNEY XXXXX INC.
By: ____________________________
[Title]
By: ____________________________
[Title]
Annex I
Pricing Agreement
[Name of Co-Representative(s)]
As Representatives of the
several Underwriters named
in Schedule I hereto.
[address]
_____________, ___
Dear Sirs:
Pitney Xxxxx Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
April ___, 1998 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). 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; and 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 in Section 2 of the Underwriting Agreement
which makes reference to the Prospectus 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) and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented 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 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
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, 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 hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as may
be specified in such Schedule II.
If the foregoing is in accordance with your understanding,
please sign and return to us 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.
Very truly yours,
PITNEY XXXXX INC.
By: ____________________________
Accepted as of the date hereof:
[NAME OF CO-REPRESENTATIVE CORPORATION]
By: ___________________________________
(Title)
_______________________________________
(Name of Co-Representative Partnership)
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount
of Designated
Securities
Underwriter to be Purchased
----------- ----------------
[Name(s) of Representatives]................ $
[Names of other Underwriters]...............
----------------
Total................................. $
================
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and
accrued amortization, if any, from to
]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and
accrued amortization, if any, from to
]
Form of Designated Securities
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its
designated custodian.
Indenture:
Indenture, dated as of April ___, 1998 (the "Indenture") between
the Company and _____________, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing _______________, 19___]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the
Company, in the amount of $ or an integral multiple
thereof, ]
[on or after , at the following
redemption prices (expressed in percentages of principal
amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in
each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after
, at the election of the Company, at a
redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire $ principal amount of Designated
Securities on in each of the years
through at 100% of their principal amount plus accrued
interest][, together with [cumulative] [non-cumulative redemptions
at the option of the Company to retire an additional $
principal amount of Designated Securities in the years
through at 100% of their principal amount plus
accrued interest.]
Defeasance Provisions:
Section 402 [(excluding Section 402(i))] and Section 1008
[(excluding Section 1008(5))] of the Indenture shall apply to the
Designated Securities.
[If Securities are extendable debt Securities, insert--
Extendable Provisions:
Securities are repayable on , [insert
date and years], at the option of the holder, at their principal
amount with accrued interest. The initial annual interest rate
will be %, and thereafter the annual interest rate will
be adjusted on , and to a rate not less
than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the
[insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If Securities are floating rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly][on each ,
, and ] [to an annual rate of
% above the average rate for -year [month]
[securities] [certificates of deposit] issued by
and [insert names of banks],] [and the annual
interest rate [thereafter][from through
] will be the interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills
plus % of Interest Differential (the excess, if any, of
(i) the then current weekly average per annum secondary market
yield for -month certificates of deposit over (ii) the
then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills);
[from and thereafter the rate will be the then current interest
yield equivalent plus % of Interest Differential].]
Time of Delivery:
[Time and date]
Closing Location:
Delayed Delivery:
[None] [Underwriters, commission shall be % of the
principal amount of Designated Securities for which Delayed
Delivery Contracts have been entered into. Such commission shall
be payable to the order of .]
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*:
--------------------
* A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Securities should be
set forth, or referenced to an attached and accompanying description, if
necessary to ensure agreement as to the terms of the Securities to be
purchased and sold. Such a description might appropriately be in the form
in which such features will be described in the Prospectus Supplement for
the offering.
ANNEX II
Pursuant to Section 7(c) of the Underwriting Agreement, Xxxx X.
Xxxx, Esq., Vice President and General Counsel for the Company, shall furnish
an opinion to the Representatives to the effect that:
(i) The Company and each of its "significant
subsidiaries" (as defined in Rule 1-02(w) of Regulation S-X
promulgated by the Commission) (each a "Material Subsidiary")
have been duly incorporated and are validly existing as a
corporation in good standing under the laws of the
respective jurisdiction of their incorporation, with power
and authority (corporate and other) to own their respective
properties and conduct their respective business as
described in the Prospectus as amended or supplemented; and
each of the Company and the Material Subsidiaries is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which it owns or
leases substantial properties or in which the conduct of its
business requires such qualification;
(ii) All of the issued shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; and all of the
outstanding shares of capital stock of each Material
Subsidiary have been duly authorized and validly issued and
are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries would individually
or in the aggregate have a material adverse effect on the
current consolidated financial position, stockholder's
equity, results of operations of the Company and its
subsidiaries, taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) In the event any of the Designated Securities
are to be purchased pursuant to Delayed Delivery Contracts,
each of such Delayed Delivery Contracts has been duly
authorized, executed and delivered by the Company and,
assuming such Contract has been duly executed and delivered
by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company in accordance with
its terms; and any Delayed Delivery Contracts conform to the
description thereof in the Prospectus as amended or
supplemented;
(vi) The Designated Securities have been duly
authorized; the Underwriters' Securities have been duly
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; the
Contract Securities, if any, when executed, authenticated,
issued and delivered pursuant to the Indenture and Delayed
Delivery Contracts, if any, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(vii) The Indenture has been duly authorized,
executed and delivered by the Company thereto and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(viii) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, each of the
Delayed Delivery Contracts, if any, this Agreement and the
Pricing Agreement with respect to the Designated Securities
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company is a party or by which
the Company is bound or to which any of the property or
assets of the Company is subject, nor will such actions
result in any violation of the provisions of the Certificate
of Incorporation, as amended, or the By-Laws of the Company
or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties,
in each case such that would have a material adverse effect
on the financial position or results of operations of the
Company and its subsidiaries, taken as a whole;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Designated Securities or the consummation by the
Company of the other transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture or any
of such Delayed Delivery Contracts, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, 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;
(x) Neither the Company nor any of its Material
Subsidiaries is in material violation of its By-laws or
Certificate of Incorporation or other organizational
documents;
(xi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that
any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case
of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a
material fact or omitted 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 documents
were so filed, not misleading; and
(xii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; although such counsel does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, such counsel has no reason to
believe that, as of their effective dates each part of the
Registration Statement or any further amendment or
supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, and the Form T-1 as to which such counsel
need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements
and related schedules therein and the Form T-1, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any such further
amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a
material fact or omits to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading; and such counsel does not know of any
amendment to the Registration Statement required to be filed
or any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by
reference or described as required.
ANNEX III
Pursuant to Section 7(d) of the Underwriting Agreement, Xxxxx
Xxxx & Xxxxxxxx, Counsel for the Company, shall furnish an opinion to the
Representatives to the effect that:
(i) The Company has been duly incorporated and is an
existing Corporation in good standing under the laws of the
jurisdiction of its incorporation;
(ii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(iii) In the event any of the Designated Securities
are to be purchased pursuant to Delayed Delivery Contracts,
each of such Delayed Delivery Contracts has been duly
authorized, executed and delivered by the Company and,
assuming such Contract has been duly executed and delivered
by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company in accordance with
its terms; and any Delayed Delivery Contracts conform to the
description thereof in the Prospectus as amended or
supplemented;
(iv) The Designated Securities have been duly
authorized; the Underwriters' Securities have been duly
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; the
Contract Securities, if any, when executed, authenticated,
issued and delivered pursuant to the Indenture and Delayed
Delivery Contracts, if any, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(v) the Indenture has been duly authorized,
executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(vi) The statements set forth in the Prospectus
under the captions "Description of Debt Securities" and
"Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities, and
under the captions "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(vii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
(viii) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion
in subsection (vi) above, they have no reason to believe
that, as of their effective dates, each part of the
Registration Statement (or any further amendment or
supplement thereto made by the Company prior to the Time of
Delivery) (other than the financial statements and related
schedules therein and Form T-1, as to which such counsel
need express no opinion) or, as of its date, the Prospectus
as amended or supplemented (or any further amendment or
supplement thereto made by the company prior to the Time of
Delivery) (other than the financial statements and related
schedules therein and Form T-1, as to which such counsel
need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that, as of the Time of Delivery,
the Prospectus (or any such further amendment or supplement
thereto) (other than the financial statements and related
schedules therein and Form T-1, as to which such counsel
need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
ANNEX IV
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public
accountants with respect to the Company and its subsidiaries
within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the financial statements
and any supplementary financial information and schedules
audited by them and included or incorporated by reference in
the Registration Statement, or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable,
and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance
with standards established by the American Institute of
Certified Public Accountants of the consolidated interim
financial statements, selected financial data and/or
condensed financial statements derived from audited
financial statements of the Company for the periods
specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to
the representative or representatives of the Underwriters
(the "Representatives") such term to include an Underwriter
or Underwriters who act without any firm being designated as
its or their representatives;
(iii) The unaudited selected financial information
with respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for five such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) They have compared the information in the
Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited
procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that
caused them to believe that this information does not
conform in all material respects with the disclosure
requirements of Item 503(d) of Regulation S-K;
(v) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to
below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection
of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed
consolidated statements of income and consolidated
statements of retained earnings, consolidated
balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included
or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Exchange Act and
the related published rules and regulations, or
(ii) any material modifications should be made to
the unaudited condensed consolidated statements of
income and consolidated statements of retained
earnings, consolidated balance sheets and
consolidated statements of cash flows included in
the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in
conformity with generally accepted accounting
principles;
(B) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding
items in the unaudited consolidated financial
statements from which such data and items were
derived, and any such unaudited data and items
were not determined on a basis substantially
consistent with the basis for the corresponding
amounts in the audited consolidated financial
statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which
were not included in the Prospectus but from which
were derived the unaudited condensed financial
statements referred to in clause (A) and any
unaudited income statement data and balance sheet
items included or incorporated by reference in the
Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent
with the basis for the audited financial
statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(D) as of a specified date not more than
five days prior to the date of delivery of such
letter, there have been any changes in the capital
stock or any increase in the consolidated long-
term debt of the Company and its subsidiaries or
any decreases in consolidated net assets or other
items specified by the Representatives, or any
increases in any items specified by the
Representatives (in each case, if such information
is available), in each case as compared with
amounts shown in the latest balance sheet included
or incorporated by reference in the Prospectus
except in each case for changes, increases or
decreases which the Prospectus discloses have
occurred or may occur or which are described in
such letter; and
(E) for the period from the date of the
latest complete financial statements included or
incorporated by reference in the Prospectus to the
specified date referred to in Clause (D) there
were any decreases in consolidated income before
taxes or of consolidated net income or other items
specified by the Representatives, or any increases
in any items specified by the Representatives (in
each case, if such information is available), in
each case as compared with the comparable period
of the preceding year and with any other period of
corresponding length specified by the
Representatives, except in each case for increases
or decreases which the Prospectus discloses have
occurred or may occur or which are described in
such letter; and
(vi) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
subparagraphs (iii) and (v) above, they have carried out
certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information specified by the Representatives which are
derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries, and have found
them to be in agreement.
All references in this Annex IV to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
ANNEX V
Delayed Delivery Contract
, _____
PITNEY XXXXX INC.
c/o [Name and address of
appropriate Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from PITNEY XXXXX
INC. (hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's (Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
, 199 , as amended or supplemented, receipt of a copy
of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest from the date from which
interest accrues as set forth below, and on the further terms and conditions
set forth in this contract.
The undersigned will purchase the Designated Securities from the
Company on 199 (the "Delivery Date") and interest on the Designated Securities
so purchased will accrue from , 199 .
[The undersigned will purchase the Designated Securities from
the Company on the delivery date or dates and in the principal amount or
amounts set forth below:
Date from Which
Delivery Date Principal Amount Interest Accrues
------------- ---------------- ----------------
, 199 $ , 199
, 199 $ , 199
Each such date on which Designated Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has
agreed to purchase on [the] [each] Delivery Date shall be made to the Company
or its order by certified or official bank check in Clearing
House funds at the office of , or by wire transfer to a
bank account specified by the Company, on [the] [such] Delivery Date upon
delivery to the undersigned of the Designated Securities then to be purchased
by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate
by written, telex or facsimile communication addressed to the Company not less
than five full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall be
subject to the condition that the purchase of Designated Securities to be made
by the undersigned shall not on [the] [such] Delivery Date be prohibited under
the laws of the jurisdiction to which the undersigned is subject. The
obligation of the undersigned to take delivery of and make payment for
Designated Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
[The undersigned understands that underwriters (the
"Underwriters") are also purchasing Designated Securities from the Company,
but that the obligations of the undersigned hereunder are not contingent on
such purchases.] Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the Opinion of Counsel for the
Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of
this contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
It is understood that the acceptance by the Company of any
Delayed Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contracts need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered by the Company.
Yours very truly,
_____________________________________
By __________________________________
(Signature)
__________________________________
(Name and Title)
__________________________________
(Address)
Accepted, , 199 .
PITNEY XXXXX INC.
By __________________________________
(Title)
