EXHIBIT 1
$500,000,000
Pitney Bowes Inc.
Medium-Term Notes, Series C
DISTRIBUTION AGREEMENT
September 17, 1998
Credit Suisse First Boston Corporation
Chase Securities Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities LLC
Salomon Brothers Inc
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, New York 10010-3629.
Ladies and Gentlemen:
1. Introduction. Pitney Bowes Inc., a Delaware corporation (the
"Issuer"), confirms its agreement with each of you (individually, a
"Distributor" and collectively, the "Distributors") with respect to the issue
and sale from time to time by the Issuer of its medium-term notes registered
under the registration statements referred to in Section 2(a) (any such
medium-term notes being hereinafter referred to as "Securities", which
expression shall, if the context so admits, include any permanent global
Security). Securities may be offered and sold pursuant to Section 3 of this
Agreement in an aggregate amount not to exceed the amount of Registered
Securities (as defined in Section 2(a) hereof) registered pursuant to such
registration statements reduced by the aggregate amount of any other Registered
Securities sold otherwise than pursuant to Section 3 of this Agreement. The
Securities will be issued under an indenture, dated as of September 3, 1998 (the
"Indenture"), between the Issuer and SunTrust Bank, Atlanta, as trustee (the
"Trustee").
Subject to the terms and conditions stated herein and to the
reservation of the Issuer of the right to sell Securities directly on its own
behalf or through other agents, dealers or underwriters as set forth in Section
3(a), the Issuer hereby (i) appoints each Distributor as an agent of the Issuer
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 3(a) hereof and (ii) agrees that whenever it
determines to sell Securities directly to any Distributor as principal, it will
enter into a separate agreement (each a "Terms Agreement"), substantially in the
form set forth in Exhibit A hereto, relating to such sale in accordance with
Section 3(b) hereof.
The Securities shall have the terms described in the Prospectus
referred to in Section 2(a) as it may be amended or supplemented from time to
time, including any supplement to the Prospectus that sets forth only the terms
of a particular issue of the Securities (a "Pricing Supplement"). Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer represents
and warrants to, and agrees with, each Distributor as follows:
(a) A registration statement (No. 33-33948), including a
prospectus, relating to $250,000,000 aggregate principal amount of
debt securities of the Issuer, and registration statement (No.
333-51281), relating to $468,000,000 aggregate principal amount of
debt securities of the Issuer, including the Securities (together, the
"Registered Securities") (including a prospectus which, as
supplemented from time to time, shall be used in connection with sales
of the Securities) have been filed with the Securities and Exchange
Commission (the "Commission") and have been declared effective under
the Securities Act of 1933, as amended (the "Act"). Such registration
statements, each as amended as of the Closing Date (as defined in
Section 3(e) hereof), are hereinafter collectively referred to as the
"Registration Statement", and the prospectus included in registration
statement no. 333-51281, as supplemented so as generally to describe
the Securities and the terms of the offering of the Securities,
including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus". Any reference in this
Agreement to amending or supplementing the Prospectus shall be deemed
to include the filing of materials incorporated by reference in the
Prospectus after the Closing Date and any reference in this Agreement
to any amendment or supplement to the Prospectus shall be deemed to
include any such materials incorporated by reference in the Prospectus
after the Closing Date. No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) On the effective date of each part of the Registration
Statement, such Registration Statement conformed in all respects to
the requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission ("Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the Closing Date, and at each of the
times of acceptance and of delivery referred to in Section 6(a) hereof
and at each of the times the Registration Statement or the Prospectus
is amended or supplemented, each part of the Registration Statement
and the Prospectus as then amended or supplemented will conform in all
respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Issuer by any Distributor
specifically for use therein. Hereinafter, each time of acceptance and
delivery referred to in Section 6(a) hereof, the Closing Date and each
time the Registration Statement or the Prospectus is amended or
supplemented will sometimes be referred to as a "Representation Date".
(c) The Issuer 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;
and the Issuer is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification; all of the issued and outstanding shares of
capital stock of the Issuer have been duly authorized and validly
issued and are fully paid and non-assessable.
(d) Each of the Issuer's "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X promulgated by the
Commission) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and each such subsidiary of the Issuer is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued
and outstanding capital stock of each such subsidiary of the Issuer
has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each such subsidiary owned by
the Issuer, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and
delivered by the Issuer and duly qualified under the Trust Indenture
Act and constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Securities have been duly authorized, and when the Securities have
been delivered and paid for pursuant to this Agreement, the Securities
will have been duly executed, authenticated, issued and delivered and
will conform to the description thereof contained in the Prospectus
and will constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Securities
by the Issuer, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under
state securities laws.
(g) The execution, delivery and performance of the Indenture
and this Agreement do not, and the completion, execution and issuance
of each particular Security in accordance with the Indenture, the sale
by the Issuer of such Security in accordance with this Agreement and
compliance with the terms and provisions thereof will not, result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Issuer or any significant subsidiary of
the Issuer or any of their properties, or any agreement or instrument
to which the Issuer or any such significant subsidiary is a party or
by which the Issuer or any such significant subsidiary is bound or to
which any of the properties of the Issuer or any such significant
subsidiary is subject that in each case is material to the issuer and
its subsidiaries, taken as a whole, or the charter or by-laws of the
Issuer or any such significant subsidiary, and the Issuer has full
power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement.
(h) This Agreement (including any agreement with respect to
the offering and sale of particular Securities as contemplated by
Section 3) has been duly authorized, executed and delivered by the
Issuer.
(i) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Issuer,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Issuer or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Issuer and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Issuer to
perform its obligations under the Indenture or this Agreement, or
which are otherwise material in the context of the sale of the
Securities; and no such actions, suits or proceedings are threatened
or, to the Issuer's knowledge, contemplated.
(j) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Issuer and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Prospectus, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis; and the schedules included in the Registration Statement
present fairly the information required to be stated therein.
(k) Except as disclosed in, contemplated by or incorporated
by reference in the Prospectus, since the date of the latest audited
financial statements included in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Issuer
and its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Issuer on any
class of its capital stock (other than any dividend declared and paid
in the ordinary course of business of the Issuer and publicly
announced by the Issuer).
(l) The Issuer is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company," as defined in the Investment Company Act of
1940.
(m) Neither the Issuer nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes, and the Issuer agrees to comply with such Section if prior
to the completion of the distribution of the Securities it commences
doing such business.
(n) Immediately after any sale of Securities by the Issuer
hereunder or under any Terms Agreement (as referred to in Section 3(b)
below), the aggregate amount of Securities which shall have been
issued and sold by the Issuer hereunder or under any Terms Agreement
and of any debt securities of the Issuer (other than such Securities)
that shall have been issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities registered
under the Registration Statement.
3. Appointment as Distributors; Agreement of Distributors;
Solicitations.
(a) (i) Subject to the terms and conditions stated herein,
the Issuer hereby appoints each of the Distributors as the agents of
the Issuer for the purpose of soliciting or receiving offers to
purchase the Securities to be issued by the Issuer during any
Marketing Time. For purposes of this Agreement "Marketing Time" shall
mean any time when no suspension of solicitation of offers to
purchase Securities pursuant to Section 3(c) or Section 4(c) shall be
in effect or any time when either any Distributor shall own any
Securities with the intention of reselling them or the Issuer has
accepted an offer to purchase Securities but the related settlement
has not occurred.
(ii) So long as this Agreement shall remain in
effect with respect to any Distributor, the Issuer shall
not, without the consent of any such Distributor, solicit
or accept offers to purchase Securities otherwise than from
or through one or more, but not any particular one, of the
Distributors; provided, however, that, subject to all of
the terms and conditions of this Agreement, the foregoing
shall not be construed to prevent the Issuer from selling
at any time any Registered Securities in a firm commitment
underwriting pursuant to an underwriting agreement that
does not provide for a continuous offering of such
Registered Securities; and provided, further, that the
Issuer reserves the right from time to time (i) to sell
Securities directly to an investor, and (ii) to accept a
specific offer to purchase Securities solicited by a dealer
other than the Distributors (each an "Other Dealer"),
without obtaining the prior consent of any of the
Distributors, provided that (x) any Other Dealer shall
agree to be bound by and subject to terms and conditions
substantially similar to the terms and conditions of this
Agreement binding on the Distributors (including the same
commission schedule set forth on Exhibit B), and (y) so
long as this Agreement remains in effect, the Issuer shall
not appoint any other agent or dealer for the purpose of
soliciting or receiving offers to purchase Securities on a
continuous basis without the prior written consent of the
Distributors (which consent shall not be unreasonably
withheld), unless such other agent or dealer has agreed to
be bound by and subject to terms and conditions
substantially similar to the terms and conditions of this
Agreement (including the same commission schedule set forth
in Exhibit B.)
(b) (i) On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set
forth, each Distributor agrees, as the agent of the Issuer, to use
reasonable best efforts when requested by the Issuer to solicit
offers to purchase the Securities upon the terms and conditions set
forth in the Prospectus, as from time to time amended or
supplemented.
(ii) No Distributor shall have any obligation to
purchase Securities from the Company; however, one or more
Distributors ( each, a "Purchasing Distributor") may agree
from time to time to purchase Securities as principal for
resale to investors and other purchasers selected by such
Purchasing Distributors. Unless otherwise expressly agreed
by the Issuer and the Purchasing Distributors as
contemplated by clause (v) below, each offer to sell
Securities transmitted by a Distributor and accepted by the
Issuer shall constitute acceptance of an offer to sell such
Securities to the Purchasing Distributors for resale. In
addition, if so specified in a Terms Agreement executed by
the Issuer and one or more Purchasing Distributors, such
Purchasing Distributor or Distributors shall act as
representative or representatives of the several
underwriters named in such Terms Agreement for resale of
the Securities specified in such Terms Agreement upon the
terms and subject to the conditions specified in such Terms
Agreement, this Agreement and in the Prospectus, as
supplemented by the applicable pricing supplement. It is
understood that the Distributors and any underwriters for
which they may act as representatives propose that they
will offer any Securities which they agree to purchase as
principal for sale as set forth in the Prospectus, as
supplemented by the applicable Pricing Supplement.
(iii) If the Issuer wishes to accept an offer by
one or more Purchasing Distributors to purchase Securities
as principal, the Issuer shall promptly prepare a Terms
Agreement, and the execution of such Terms Agreement by the
Issuer and the Purchasing Distributor or Distributors shall
constitute the acceptance by the Issuer of such offer. Each
purchase of Securities by a Distributor shall, unless
otherwise agreed, be at a discount from the principal
amount of each such Security equivalent to the applicable
commission set forth in Exhibit B hereto.
(iv) Each Distributor is authorized to engage the
services of any other brokers or dealers in connection with
the offer or sale of Securities purchased by such
Distributor as principal for resale to others and may
reallow any portion of the discount received from the
Issuer to such brokers or dealers.
(v) If expressly agreed by a Distributor and the
Issuer, such Distributor will solicit offers to purchase
Securities from the Issuer through such Distributor, acting
as agent, in accordance with the provisions of this
Agreement. In such event, such Distributor shall
communicate to the Issuer, orally or in writing, each
reasonable offer to purchase Securities received by it as
agent; and the Issuer shall have the sole right to accept
offers to purchase the Securities and may reject any such
offer, in whole or in part. For each accepted offer, the
Distributor shall deliver written confirmation of such
acceptance to such purchaser, and such Distributor will
deliver a written confirmation to the Issuer. Each
Distributor shall have the right, in its discretion
reasonably exercised, without notice to the Issuer, to
reject any offer to purchase Securities received by it as
such agent, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained
herein. At the time of delivery of, and payment for, any
Securities sold by the Issuer as a result of a solicitation
made by, or offer to purchase received by, a Distributor,
acting on an agency basis, the Issuer agrees to pay such
Distributor a commission in accordance with the schedule
set forth in Exhibit B hereto.
(vi) No Distributor shall have any responsibility
for maintaining records with respect to the aggregate
principal amount of Securities sold, or otherwise
monitoring the availability of Securities for sale under
the Registration Statement.
(vii) No Security which the Issuer has agreed to
sell pursuant to this Agreement shall be deemed to have
been purchased and paid for, or sold by the Issuer, until
such Security shall have been delivered to the purchaser
thereof against payment by such purchaser.
(c) Upon receipt of notice from the Issuer as contemplated
by Section 4(c) hereof, each Distributor shall suspend its
solicitation of offers to purchase Securities until such time as the
Issuer shall have furnished it with an amendment or supplement to the
Registration Statement or the Prospectus, as the case may be,
contemplated by Section 4(c) and shall have advised such Distributor
that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. Upon receipt of at least one Business Day's prior
notice from the Issuer, the Distributors will forthwith suspend solicitation of
offers to purchase Securities from the Issuer until such time as the Issuer has
advised the Distributors that such solicitation may be resumed. For the purpose
of the foregoing sentence, "Business Day" shall mean any day that is not a
Saturday or Sunday, and that in The City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close.
(d) Administrative procedures respecting the sale of
Securities (the "Procedures") shall be agreed upon from time to time
by the Distributors and the Issuer. The initial Procedures, which are
set forth in Exhibit C hereto, shall remain in effect until changed
by agreement among the Issuer and the Distributors. Each Distributor
and the Issuer agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in
the Procedures. The Issuer will furnish to the Trustee a copy of the
Procedures as from time to time in effect.
(e) The documents required to be delivered by Section 5
hereof shall be delivered at the office of Sullivan & Cromwell, 125
Broad Street, New York, New York 10004, not later than 10:00 A.M.,
New York City time, on the date of this Agreement or at such later
time as may be mutually agreed by the Issuer and the Distributors,
which in no event shall be later than the time at which the
Distributors commence solicitation of purchases of Securities
hereunder, such time and date being herein called the "Closing Date".
For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the settlement date (if later than the otherwise applicable
settlement date) shall be the date for payment of funds and delivery
of securities for all the Securities sold pursuant to an offering of
Securities having identical terms (including the issue date) and
terms of sale (whether or not set forth in a single Terms Agreement).
(f) In the event that an amount in excess of 10% in the
aggregate of the final net proceeds from any sale of Securities is
used to pay indebtedness owed to affiliates of any Distributor, the
Company shall inform the Distributor of such use of proceeds, and any
such sale of Securities will be made in accordance with Rule
2710(c)(8) of the NASD Conduct Rules.
4. Certain Agreements of the Issuer. The Issuer agrees with the
Distributors that it will furnish to Sullivan & Cromwell, counsel for the
Distributors, one signed copy of the Registration Statement, including all
exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities,
(a) The Issuer will prepare a Pricing Supplement, in
substantially the forms set forth in Annexes D-1 and D-2 hereto or as
otherwise agreed to by the parties, with respect to any Securities to
be offered and sold to or through one or more Distributors pursuant to
this Agreement and, after approval of such Pricing Supplement by such
Distributor or Distributors, will file such Pricing Supplement with
the Commission pursuant to and in accordance with Rule 424(b) under
the Act.
(b) The Issuer will advise each Distributor promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Distributors a reasonable opportunity
to comment on any such proposed amendment or supplement (other than by
a filing of (i) any Current Report on Form 8-K, any Quarterly Report
on Form 10-Q and any Annual Report on Form 10-K, (ii) any prospectus
supplement that does not relate to Securities and (iii) any Pricing
Supplement that relates to Securities not purchased through or by such
Distributor), and if the Issuer effects any amendment or
supplementation of the Registration Statement or the Prospectus to
which a Distributor objects, such Distributor shall be relieved of its
obligations under Section 3(b) to solicit offers to purchase
Securities until such time as the Issuer shall have filed such further
amendments or supplements such that such Distributor is reasonably
satisfied with the Registration Statement and the Prospectus, as then
amended or supplemented; and the Issuer will also advise each
Distributor promptly of the filing and effectiveness of any such
amendment or supplement and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or
of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or if it is necessary at any
such time to amend the Prospectus to comply with the Act, the Issuer
will promptly notify each Distributor by telephone (with confirmation
in writing) to suspend solicitation of offers to purchase the
Securities and to cease making offers or sales of Securities which a
Distributor may then own as principal; and if the Issuer shall decide
to amend or supplement the Registration Statement or the Prospectus,
it will promptly advise each Distributor by telephone (with
confirmation in writing) and, subject to the provisions of subsections
(a) and (b) of this Section, will promptly prepare and file with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Notwithstanding the foregoing, if, at the time any such
event occurs or it becomes necessary to amend the Prospectus to comply
with the Act, any Distributor shall own any of the Securities with the
intention of reselling them, or the Issuer has accepted an offer to
purchase Securities but the related settlement has not occurred, the
Issuer, subject to the provisions of subsection (a) of this Section,
will promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Distributors'
consent to, nor their delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 5.
(d) The Issuer will file promptly all documents required to
be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act. In addition, on or prior to the date on
which the Issuer makes any announcement to the general public
concerning earnings or concerning any other event which is required to
be described, or which the Issuer proposes to describe, in a document
filed pursuant to the Exchange Act, the Issuer will furnish the
information contained or to be contained in such announcement to each
Distributor, confirmed in writing and, subject to the provisions of
subsections (a) and (b) of this Section, will cause the Prospectus to
be amended or supplemented to reflect the information contained in
such announcement. The Issuer also will furnish each Distributor with
copies of all press releases or announcements to the general public.
(e) The Issuer will immediately notify each Distributor of
any downgrading in the rating of any debt securities or preferred
stock of the Issuer or any proposal to downgrade the rating of any
debt securities or preferred stock of the Issuer by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Issuer (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading of such rating), as soon as
the Issuer learns of such downgrading, proposal to downgrade or public
announcement.
(f) As soon as practicable, but not later than 16 months,
after the date of each acceptance by the Issuer of an offer to
purchase Securities hereunder, the Issuer will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of
the Issuer's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such acceptance, which will satisfy
the provisions of Section 11(a) of the Act.
(g) The Issuer will furnish to each Distributor copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents
(including any Pricing Supplement), in each case as soon as available
and in such quantities as are reasonably requested.
(h) The Issuer will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Distributors
designate and will continue such qualifications in effect so long as
required for the distribution.
(i) So long as any Securities are outstanding, the Issuer
will furnish to the Distributors, (i) as soon as practicable after the
end of each fiscal year, a copy of its annual report to stockholders
for such year, (ii) as soon as available, a copy of each annual report
or definitive proxy statement of the Issuer filed with the Commission
under the Exchange Act or mailed to stockholders, and (iii) from time
to time, such other information concerning the Issuer as the
Distributors may reasonably request.
(j) The Issuer will pay, or reimburse each Distributor for,
all reasonable expenses incident to the performance of its obligations
under this Agreement and will reimburse each Distributor for any
expenses (including reasonable fees and disbursements of counsel)
incurred by it in connection with qualification of the Securities for
sale and determination of their eligibility for investment under the
laws of such jurisdictions as such Distributor may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Securities, for any
filing fee incident to, and the reasonable fees and disbursements of
Sullivan & Cromwell, counsel to the Distributors, in connection with,
review by the National Association of Securities Dealers, Inc.
relating to the Securities, for reasonable expenses incurred by each
Distributor in distributing the Prospectus and all supplements thereto
(including any Pricing Supplement), any preliminary prospectuses and
any preliminary prospectus supplements to such Distributor, for
reasonable costs incurred by each Distributor in advertising any
offering of Securities and for the reasonable fees and disbursements
of Sullivan & Cromwell, counsel to the Distributors, incurred in
connection with the establishment or maintenance of the program
contemplated by this Agreement.
(k) Between the date on which any Distributor agrees to
purchase Securities from the Issuer as principal for resale and the
date of delivery of such Securities, the Issuer will not offer or
sell, or enter into any agreement to sell, pledge, or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to any of its debt
securities (other than such Securities) in the United States, other
than borrowings under the Issuer's revolving credit agreements and
lines of credit, the private placement of securities and issuances of
its commercial paper, or publicly disclose the intention to make any
such offer, sale, pledge or disposition or filing.
5. Conditions of Obligations. The obligations of each Distributor, as
agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities and to purchase Securities from the Issuer as principal
is subject to the accuracy, on the date hereof, on each Representation Date and
on the date of each such solicitation, of the representations and warranties of
the Issuer herein, to the accuracy, on each such date, of the statements of the
Issuer's officers made pursuant to the provisions hereof, to the performance, on
or prior to each such date, by the Issuer of its obligations hereunder, and to
each of the following additional conditions precedent:
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be,
shall have been filed with the Commission in accordance with the
Rules and Regulations and no stop order suspending the effectiveness
of the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Issuer or any Distributor, shall be
contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus,
as amended or supplemented as of any Representation Date or date of
such solicitation, as the case may be, shall contain any untrue
statement of fact which, in the opinion of such Distributor, is
material or omits to state a fact which, in the opinion of such
Distributor, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations
of the Issuer or its subsidiaries which, in the judgment of such
Distributor, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Securities; (ii) any downgrading in, or
proposal to downgrade, the rating of any debt securities or preferred
stock of the Issuer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or
material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Issuer on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities;
or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if,
in the judgment of such Distributor, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with solicitations of offers to purchase,
or sales of, Securities.
(d) With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security the principal or interest of which is
indexed to such currency, currencies or composite currency, there
shall not have occurred a suspension or material limitation in
foreign exchange trading in such currency, currencies or composite
currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing
such currency, currencies or composite currency, the outbreak or
escalation of hostilities involving, the occurrence of any material
adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by,
the country or countries issuing such currency, currencies or
composite currency or the imposition or proposal of exchange controls
by any governmental authority in the country or countries issuing
such currency, currencies or composite currency;
(e) At the Closing Date and, if specified in a Terms
Agreement, at the time of delivery of the Securities described in
such Terms Agreement, the Distributors or each Purchasing
Distributor, as the case may be, shall have received
(1) an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of Sara Moss, Esq., Vice
President and General Counsel for the Issuer, to the effect
that:
(i) The Issuer has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Issuer is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business
requires such qualification;
(ii) Each of the Issuer's significant subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each such
subsidiary of the Issuer is duly qualified to do business as
a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification; all
of the issued and outstanding capital stock of each such
subsidiary of the Issuer has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital stock of each such subsidiary owned by the Issuer,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(iii) The Indenture has been duly authorized,
executed and delivered by the Issuer and has been duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Issuer
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(iv) Any series of Securities established on or
prior to the date of such opinion has been duly authorized
and established in conformity with the Indenture, and, when
the terms of a particular Security and of its issuance and
sale have been duly authorized and established by all
necessary corporate action in conformity with the Indenture,
and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture
and delivered against payment as contemplated by this
Agreement, such Security will constitute a valid and legally
binding obligation of the Issuer entitled to the benefits
provided by the Indenture, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles, it being understood
that such counsel may (a) assume that at the time of the
issuance, sale and delivery of each Security the
authorization of such series will not have been modified or
rescinded and there will not have occurred any change in law
affecting the validity, legally binding character or
enforceability of such Security, (b) assume that neither the
issuance, sale and delivery of any Security, nor any of the
terms of such Security, nor compliance by the Issuer with
such terms, will violate any applicable law, any agreement
or instrument then binding upon the Issuer or any
restriction imposed by any court or governmental body having
jurisdiction over the Issuer, and (c) state that as of the
date of such opinion a judgment for money in an action based
on Securities denominated in foreign currencies or currency
units in a Federal or State court in the United States
ordinarily would be enforced in the United States only in
United States dollars, and that the date used to determine
the rate of conversion of the foreign currency or currency
unit in which a particular Security is denominated into
United States dollars will depend upon various factors,
including which court renders the judgment;
(v) The documents incorporated by reference in the
Registration Statement or 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;
(vi) The Registration Statement has become
effective under the Act, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under
the Act specified in such opinion on the date specified
therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
each of the registration statements relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the Closing
Date, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; although such counsel does not assume
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
each such registration statement as of its effective date,
the Registration Statement or the Prospectus, as of the
Closing Date, or any such amendment or supplement, as of its
date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading; the descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; and
such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which
are not described as required or of any contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not
described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus;
(vii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement in connection with the
issuance and sale of the Securities by the Issuer, except
such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state
securities laws (it being understood that such counsel may
assume with respect to each particular Security that the
inclusion of any alternative or additional terms in such
Security that are not currently specified in the forms of
Securities examined by such counsel would not require the
Issuer to obtain any regulatory consent, authorization or
approval or make any regulatory filing in order for the
Issuer to issue, sell and deliver such Security);
(viii) The execution, delivery and performance of
the Indenture, this Agreement and the issuance and sale of
the Securities, and compliance with the terms and provisions
thereof, will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Issuer or any significant subsidiary of the Issuer
or any of their properties or any agreement or instrument to
which the Issuer or any such significant subsidiary is a
party or by which the Issuer or any such significant
subsidiary is bound or to which any of the properties of the
Issuer or any such significant subsidiary is subject that in
each case is material to the Issuer and its subsidiaries,
taken as a whole, or the charter or by-laws of the Issuer or
any such significant subsidiary, and the Issuer has full
power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement (it being
understood that such counsel may assume with respect to each
particular Security that the inclusion of any alternative or
additional terms in such Security that are not currently
specified in the form of Securities examined by such counsel
will not cause the issuance, sale or delivery of such
Security, the terms of such Security, or the compliance by
the Issuer with such terms, to violate any of the court
orders or laws specified in this paragraph or to result in a
default under or a breach of any of the agreements specified
in this paragraph); and
(ix) This Agreement has been duly authorized,
executed and delivered by the Issuer.
(2) an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of Davis Polk & Wardwell, counsel
for the Issuer, to the effect that:
(i) The Issuer has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware;
(ii) The Indenture has been duly authorized,
executed and delivered by the Issuer and has been duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Issuer
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(iii) Any series of Securities established on or
prior to the date of such opinion has been duly authorized
and established in conformity with the Indenture, and, when
the terms of a particular Security and of its issuance and
sale have been duly authorized and established by all
necessary corporate action in conformity with the Indenture,
and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture
and delivered against payment as contemplated by this
Agreement, such Security will constitute a valid and legally
binding obligation of the Issuer entitled to the benefits
provided by the Indenture, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles, it being understood
that such counsel may (a) assume that at the time of the
issuance, sale and delivery of each Security the
authorization of such series will not have been modified or
rescinded and there will not have occurred any change in law
affecting the validity, legally binding character or
enforceability of such Security, (b) assume that neither the
issuance, sale and delivery of any Security, nor any of the
terms of such Security, nor compliance by the Issuer with
such terms, will violate any applicable law, any agreement
or instrument then binding upon the Issuer or any
restriction imposed by any court or governmental body having
jurisdiction over the Issuer, and (c) state that as of the
date of such opinion a judgment for money in an action based
on Securities denominated in foreign currencies or currency
units in a Federal or State court in the United States
ordinarily would be enforced in the United States only in
United States dollars, and that the date used to determine
the rate of conversion of the foreign currency or currency
unit in which a particular Security is denominated into
United States dollars will depend upon various factors,
including which court renders the judgment;
(iv) This Agreement has been duly authorized,
executed and delivered by the Issuer;
(v) Each of the registration statements relating
to the Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the Closing
Date, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained therein, such counsel have no
reason to believe that each such registration statement as
of its effective date, the Registration Statement or the
Prospectus, as of the Closing Date, or any such amendment or
supplement, as of its date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus or as to Form T-1;
and
(vi) The Issuer is not and, after giving effect to
the offering and sale of the Securities and the application
of the proceeds thereof as described in the Prospectus, will
not be an "investment company" as defined in the Investment
Company Act of 1940;
provided, however, that, in the case of each such opinion
delivered pursuant to a Terms Agreement, (x) the statements
contained in such opinion relating to the Registration
Statement or the Prospectus shall relate to the Registration
Statement or the Prospectus, as the case may be, as amended
or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such Securities and as of the time of
delivery of such Securities; (y) such opinion shall relate
to the Securities being delivered on the date of such
opinion and not to other Securities as well; and (z) in lieu
of the opinion described in clause (iii), such opinion shall
state that the Securities being delivered on the date of
such opinion, when delivered against payment therefor as
contemplated by this Agreement, will have been duly
executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Issuer entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, subject only to
the exceptions set forth in clause (iii) as to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and general equity principles,
and will conform to the description thereof contained in the
Prospectus as amended or supplemented at such date of
delivery.
(f) At the Closing Date and, if specified in a Terms
Agreement, at the time of delivery of the Securities described in such
Terms Agreement, the Distributors or each Purchasing Distributor, as
the case may be, shall have received a certificate, dated the Closing
Date or such date of delivery, as the case may be, of the President or
any Vice President and a principal financial or accounting officer of
the Issuer in which such officers, to the best of their knowledge,
shall state that (i) the representations and warranties of the Issuer
in this Agreement are true and correct, (ii) the Issuer has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date or
such date of delivery, as the case may be, (iii) no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission, and (iv)
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or otherwise), business, properties or
results of operations of the Issuer and its subsidiaries taken as a
whole, except as set forth in or contemplated by the Prospectus or as
described in such certificate. In the case of each such certificate
delivered pursuant to a Terms Agreement, the statements contained in
such certificate relating to the Registration Statement or the
Prospectus shall relate to the Registration Statement or the
Prospectus, as the case may be, as amended or supplemented as of the
date of the Issuer's acceptance of the offer to purchase such
Securities and as of the time of delivery of such Securities.
(g) At the Closing Date and on each date the Issuer files
with the Commission an Annual Report on Form 10-K or a Quarterly
Report on Form 10-Q, the Distributors or each Purchasing Distributor,
as the case may be, shall have received a letter, dated the Closing
Date or such date of filing or delivery, as the case may be, of
PricewaterhouseCoopers LLP, confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion, the financial statements and
schedules and summary of earnings, if any, examined by them
and included in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related Rules and
Regulations adopted by the Commission;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants
for a review of interim financial information as described
in Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included
in the Registration Statement;
(iii) on the basis of the review, if any, referred
to in clause (ii) above, a reading of the latest available
interim financial statements of the Issuer, inquiries of
officials of the Issuer who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements,
if any, and any summary of earnings included in
the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Exchange Act of
1934 as it applies to Form 10-Q and the related
Rules and Regulations adopted by the Commission or
any material modifications should be made to such
unaudited financial statements and summary of
earnings for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in long-term debt of the Issuer and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in
consolidated net current assets, net assets or
stockholders' equity, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date
of the latest available income statement included
in the Prospectus to the closing date of the
latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended
the date of the latest income statement included
in the Prospectus, in consolidated total revenues,
income from continuing operations before taxes or
net income;
except in all cases set forth in clauses (B) and (C) above,
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statement (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Issuer
and its subsidiaries subject to the internal controls of the
Issuer's accounting system or are derived directly from such
records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
In the case of each such letter delivered upon a filing on
Form 10-K or pursuant to a Terms Agreement, the statements contained
in such letter relating to the Registration Statement or the
Prospectus shall relate to the Registration Statement or the
Prospectus, as the case may be, as amended or supplemented as of the
date of such filing or the Issuer's acceptance of the offer to
purchase such Securities, as the case may be, and as of the time of
delivery of such Securities.
(h) At the Closing Date, the Distributors shall have
received from Sullivan & Cromwell, counsel for the Distributors, such
opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Issuer, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as
the Distributors may reasonably require, and the Issuer shall have
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(i) The Issuer shall have furnished to the Distributors or
their counsel such further certificates and documents as the
Distributors or such counsel reasonably request.
The Issuer will furnish the Distributors with such conformed copies of
such opinions, certificates, letters and documents as they reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the
purchase of Securities shall be deemed to be an affirmation that its
representations and warranties contained in this Agreement are true
and correct at the time of such acceptance and a covenant that such
representations and warranties will be true and correct at the time
of delivery to the purchaser of the Securities as though made at and
as of each such time, it being understood that such representations
and warranties shall relate to the Registration Statement and the
Prospectus as amended or supplemented at each such time. Each such
acceptance by the Issuer of an offer to purchase Securities shall be
deemed to constitute an additional representation, warranty and
agreement by the Issuer that, as of the date of delivery of such
Securities to the purchaser thereof, after giving effect to the
issuance of such Securities, of any other Securities to be issued on
or prior to such delivery date and of any other Registered Securities
to be issued and sold by the Issuer on or prior to such delivery
date, the aggregate amount of Registered Securities (including any
Securities) which have been issued and sold by the Issuer will not
exceed the amount of Registered Securities registered pursuant to the
Registration Statement.
(b) At each Selected Representation Date (as defined
below), the Issuer shall, (A) concurrently with such amendment or
supplement, if such amendment or supplement shall occur at a
Marketing Time, or (B) immediately at the next Marketing Time if such
amendment or supplement shall not occur at a Marketing Time, furnish
the Distributors with a certificate, dated the date of delivery
thereof, of the President or any Vice President and a principal
financial or accounting officer of the Issuer, in form reasonably
satisfactory to the Distributors, to the effect that the statements
contained in the certificate covering the matters set forth in
Section 5(f) hereof which was last furnished to the Distributors
pursuant to Section 5(f) or this Section 6(b) are true and correct at
the time of such amendment or supplement, as though made at and as of
such time or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(f); provided,
however, that any certificate furnished under this Section 6(b) shall
relate to the Registration Statement and the Prospectus as amended or
supplemented at the time of delivery of such certificate and, in the
case of the matters set forth in clause (ii) of Section 5(f), to the
time of delivery of such certificate. A "Selected Representation
Date" shall mean each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by the filing of
(i) a Current Report on Form 8-K or a Quarterly Report on Form 10-Q,
(ii) a Prospectus Supplement that does not relate to the Securities
or (iii) a Pricing Supplement).
(c) At each Selected Representation Date referred to in
Section 6(b) (other than the Selected Representation Dates on which
the Registration Statement or the Prospectus is amended or
supplemented solely to include additional financial information), and
as specified in a Terms Agreement with respect to the opinion
referred to in Section 5(e)(1) hereof, the Issuer shall, (A)
concurrently if such Selected Representation Date shall occur at a
Marketing Time, or (B) immediately at the next Marketing Time if such
Selected Representation Date shall not occur at a Marketing Time,
furnish the Distributors with a written opinion or opinions, dated
the date of such Selected Representation Date, of counsel for the
Issuer, in form reasonably satisfactory to the Distributors, to the
effect set forth in Section 5(e) hereof; provided, however, that to
the extent appropriate such opinion or opinions may reconfirm matters
set forth in a prior opinion or opinions delivered at the Closing
Date or under this Section 6(c); provided further, however, that any
opinion or opinions furnished under this Section 6(c) shall relate to
the Registration Statement and the Prospectus as amended or
supplemented at such Selected Representation Date and shall state
that the Securities sold in the relevant Applicable Period (as
defined below) have been duly executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, subject only to
the exceptions set forth in clauses (1)(iv) and (2)(iii) of Section
5(e) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity
principles, and conform to the description thereof contained in the
Prospectus as amended or supplemented at the relevant date or dates
for the delivery of such Securities to the purchaser or purchasers
thereof. For the purpose of this Section 6(c), "Applicable Period"
shall mean with respect to any opinion delivered on a Selected
Representation Date the period commencing on the date as of which the
most recent prior opinion delivered at the Closing Date or under this
Section 6(c) speaks and ending on such Selected Representation Date.
(d) At each Representation Date referred to in Section
2(b), other than a Representation Date arising from the filing of (i)
a Current Report on Form 8-K which relates solely to summary
quarterly earnings information, (ii) a Prospectus Supplement that
does not relate to the Securities or (iii) a Pricing Supplement, on
which the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information, the
Issuer shall cause PricewaterhouseCoopers LLP (A) concurrently if
such Representation Date shall occur at a Marketing Time, or (B)
immediately at the next Marketing Time if such Representation Date
shall not occur at a Marketing Time, to furnish the Distributors with
a letter, addressed jointly to the Issuer and the Distributors and
dated the date of such Representation Date, in form and substance
reasonably satisfactory to the Distributors, to the effect set forth
in Section 5(g) hereof; provided, however, that to the extent
appropriate such letter may reconfirm matters set forth in a prior
letter delivered at the Closing Date or pursuant to this Section
6(d); provided further, however, that any letter furnished under this
Section 6(d) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date,
with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the
accounting records of the Issuer.
(e) The Issuer agrees that any obligation of a person who
has agreed to purchase Securities and to make payment for and take
delivery of such Securities shall be subject to (i) the accuracy, on
the related settlement date fixed pursuant to the Procedures, of the
Issuer's representation and warranty deemed to be made to the
Distributors pursuant to the last sentence of subsection (a) of this
Section 6, and (ii) the satisfaction, on such settlement date, of
each of the conditions set forth in Sections 5(a), (b) and (c), it
being understood that any reference to a Distributor therein shall be
deemed a reference to such person for purposes of this Section 6(e)
and under no circumstance shall any Distributor have any duty or
obligation to exercise the judgment permitted under Section 5(b) or
(c) on behalf of any such person.
7. Indemnification and Contribution.
(a) The Issuer will indemnify and hold harmless each
Distributor against any losses, claims, damages or liabilities, joint
or several, to which such Distributor may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, 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
Distributor for any legal or other expenses reasonably incurred by
such Distributor in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Issuer will not be liable to
such Distributor in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with
written information furnished to the Issuer by such Distributor
specifically for use therein, unless such loss, claim, damage or
liability arises out of the offer or sale of Securities occurring
after the Distributor has timely notified the Issuer in writing that
such information should no longer be used therein.
(b) Each Distributor will severally and not jointly
indemnify and hold harmless the Issuer against any losses, claims,
damages or liabilities to which the Issuer may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Issuer by
such Distributor specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Issuer in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, unless
such loss, claim, damage or liability arises out of the offer or sale
of Securities occurring after the Distributor has timely notified the
Issuer in writing that such information should no longer be used
therein.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel of its own
choosing. Subject to the following sentence, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. The indemnified party will have the right to employ
its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified
party unless the indemnified party has reasonably concluded (based on
the advice of counsel) that a conflict or potential conflict exists
between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party). In no
event shall the indemnifying party be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party unless (i) such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Issuer on the one
hand and any Distributor on the other from the offering pursuant to
this Agreement of the Securities which are the subject of the action
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuer on the one hand and
any Distributor on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Issuer on the one hand and any
Distributor on the other shall be deemed to be in the same
proportions as the total net proceeds from the offering pursuant to
this Agreement of the Securities which are the subject of the action
(before deducting expenses) received by the Issuer bear to the total
discounts and commissions received by such Distributor from the
offering of such Securities pursuant to this Agreement. 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 Issuer or such Distributor and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
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 action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Distributor shall be required to contribute
any amount in excess of the amount by which the total price at which
the Securities which are the subject of the action and which were
distributed to the public through it pursuant to this Agreement or
upon resale of Securities purchased by it from the Issuer exceeds the
amount of any damages which such Distributor 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 each
Distributor in this subsection (d) to contribute are several, in the
same proportion which the amount of the Securities which are the
subject of the action and which were distributed to the public
through such Distributor pursuant to this Agreement bears to the
total amount of such Securities distributed to the public through all
of the Distributors pursuant to this Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7
shall be in addition to any liability which the Issuer may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls each Distributor within the meaning of
the Act; and the obligations of each Distributor under this Section 7
shall be in addition to any liability which each Distributor may
otherwise have and shall extend, upon the same terms and conditions,
to each director of the Issuer, to each officer of the Issuer who has
signed the Registration Statement and to each person, if any, who
controls the Issuer within the meaning of the Act.
8. Status of Each Distributor. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than any obligation to purchase Securities pursuant
to Section 3 hereof), each Distributor is acting individually and not jointly
and is acting solely as agent for the Issuer and not as principal. In connection
with the placement of any Securities by a Distributor, acting as agent, (a) each
Distributor will make reasonable best efforts to assist the Issuer in obtaining
performance by each purchaser whose offer to purchase Securities from the Issuer
has been solicited by such Distributor and accepted by the Issuer, but such
Distributor shall have no liability to the Issuer in the event any such purchase
is not consummated for any reason; and (b) if the Issuer shall default on its
obligations to deliver Securities to a purchaser whose offer it has accepted,
the Issuer (i) shall hold the Distributors harmless against any loss, claim or
damage arising from or as a result of such default by the Issuer, and (ii) shall
pay to the Distributors any commission to which they would be entitled in
connection with such sale.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer or its officers and of the Distributors set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Distributor, the Issuer or any of their respective representatives, officers
or directors or any controlling person and will survive delivery of and payment
for the Securities. If this Agreement is terminated pursuant to Section 10 or
for any other reason or if for any reason the sale of Securities described in a
Terms Agreement referred to in Section 3 by the Issuer to a Distributor is not
consummated, the Issuer shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4(j) and the obligations of the Issuer
under Sections 4(f) and 4(i) and the respective obligations of the Issuer and
the Distributors pursuant to Section 7 shall remain in effect. In addition, if
any such termination of this Agreement shall occur either (i) at a time when any
Distributor shall own any of the Securities with the intention of reselling them
or (ii) after the Issuer has accepted an offer to purchase Securities and prior
to the related settlement, the obligations of the Issuer under the second
sentence of Section 4(c), under Sections 4(a), 4(b), 4(d), 4(e), 4(g), 4(h) and
4(k) and, in the case of a termination occurring as described in (ii) above,
under Sections 3(b)(vii), 6(a), and 6(e) and under the last sentence of Section
8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at
any time by the Issuer as to any Distributor or, in the case of any Distributor,
by such Distributor insofar as this Agreement relates to such Distributor, upon
the giving of one day's written notice of such termination to the other parties
hereto; provided, however, that this Agreement may not be terminated with
respect to a Distributor by the giving of such notice following the execution by
the Issuer and such Distributor of a Terms Agreement referred to in Section 3
relating to the purchase of Securities by or through such Distributor and prior
to delivery of the Securities described in such Terms Agreement. Any settlement
with respect to Securities placed by a Distributor on an agency basis occurring
after termination of this Agreement shall be made in accordance with the
Procedures and each Distributor agrees, if requested by the Issuer, to take the
steps therein provided to be taken by such Distributor in connection with such
settlement.
11. Sales of Securities Denominated in a Currency other than U.S.
Dollars or of Indexed Securities. If at any time the Issuer and any of the
Distributors shall determine to issue and sell Securities denominated in a
currency other than U.S. dollars, which other currency may include a currency
unit, or with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, the Issuer and any such
Distributor may execute and deliver a supplement to this Agreement for the
purpose of making any appropriate additions to and modifications of the terms of
this Agreement (and the Procedures) applicable to such Securities and the offer
and sale thereof. The Distributors are authorized to solicit offers to purchase
Securities with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, and the Issuer shall agree
to any sales of such Securities (whether offered on any agency or principal
basis), only in a minimum aggregate amount of $2,500,000. The Issuer will not
issue Securities denominated in Yen otherwise than in compliance with applicable
Japanese laws, regulations and policies. In particular, the Issuer or its
designated agent shall submit such reports or information as may be required
from time to time by applicable law, regulations and guidelines promulgated by
Japanese governmental and regulatory authorities in the case of the issue and
purchase of the Securities and the Issuer shall ensure that each such Security
shall have a minimum denomination of Yen1,000,000 and a minimum maturity of one
year or such other minimum denomination and maturity as may be allowed from time
to time by Japanese governmental and regulatory authorities.
12. Notices. Except as otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to Credit Suisse First Boston Corporation shall be
directed to it at Eleven Madison Avenue, New York, New York 10010-3629,
Attention: Short and Medium Term Finance Department (Facsimile No. (212)
325-8183); notices to the other Distributors shall be directed to their
respective addresses set forth in Exhibit E hereto; and notices to the Issuer
shall be directed to it at World Headquarters, Stamford, Connecticut 06926,
Attention: Mary Jo Green (Facsimile No. (203) 351-6581); or in the case of any
party hereto, to such other address or person as such party shall specify to
each other party by a notice given in accordance with the provisions of this
Section 12. Any such notice shall take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(e), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
14. Counterparts. This Agreement and any Terms Agreement may be
executed 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
Agreement.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Issuer hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or any
Terms Agreement or the transactions contemplated hereby or thereby.
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
PITNEY BOWES INC.
By:____________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:__________________________
Name:
Title:
By: CHASE SECURITIES INC.
By:__________________________
Name:
Title:
By: GOLDMAN, SACHS & CO.
By:__________________________
Name:
Title:
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By:__________________________
Name:
Title:
By: J.P. MORGAN SECURITIES INC.
By:__________________________
Name:
Title:
By: NATIONSBANC MONTGOMERY SECURITIES LLC
By:__________________________
Name:
Title:
By: SALOMON BROTHERS INC.
By:__________________________
Name:
Title: