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changes in
international or national political conditions, including any terrorist
attacks
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negative developments in economic conditions, including adverse
impacts on customer demand
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changes in
postal or banking regulations
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timely
development and acceptance of new products
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success in
gaining product approval in new markets where regulatory approval is required
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successful
entry into new markets
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mailers
utilization of alternative means of communication or competitors products
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our success
at managing customer credit risk
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our success at managing costs associated with our
strategy of outsourcing functions and operations not central to our business
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changes in
interest rates
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foreign
currency fluctuations
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cost, timing
and execution of our transition plans including any potential asset
impairments
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regulatory
approvals and satisfaction of other conditions to consummation of any
acquisitions and integration of recent acquisitions
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interrupted
use of key information systems
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changes in
privacy laws
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intellectual
property infringement claims
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impact on
mail volume resulting from current concerns over the use of the mail for
transmitting harmful biological agents
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third-party
suppliers ability to provide product components, assemblies or inventories
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negative
income tax adjustments for prior audit years and changes in tax laws or
regulations
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changes in pension and retiree medical costs
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acts of
nature
|
Item 3: Quantitative and Qualitative
Disclosures about Market Risk
There were no
material changes to the disclosures made in the Annual Report on Form 10-K for
the year ended December 31, 2008 regarding this matter.
Item 4: Controls and Procedures
Disclosure controls and
procedures are designed to reasonably assure that information required to be
disclosed in reports filed or submitted under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the SECs
rules and forms. Disclosure controls and procedures are also designed to
reasonably assure that such information is accumulated and communicated to our
management, including our Chief Executive Officer (CEO) and Chief Financial
Officer (CFO), as appropriate to allow timely decisions regarding required
disclosure.
Under the
direction of our CEO and CFO, we evaluated the effectiveness of our disclosure
controls and procedures and internal control over financial reporting. The CEO
and CFO concluded that our disclosure controls and procedures were effective as
of September 30, 2009. In addition, no change in internal control over
financial reporting occurred during the quarter ended September 30, 2009, that
has materially affected, or is reasonably likely to materially affect, such
internal control over financial reporting. It should be noted that any system
of controls is based in part upon certain assumptions designed to obtain
reasonable (and not absolute) assurance as to its effectiveness, and there can
be no assurance that any design will succeed in achieving its stated goals.
Notwithstanding this caution, the disclosure controls and procedures are
designed to provide reasonable assurance of achieving their stated objectives,
and the CEO and CFO have concluded that the disclosure controls and procedures
are effective at that reasonable assurance level.
PART II. OTHER INFORMATION
Item 1:
Legal Proceedings
In the ordinary course of
business, we are routinely defendants in or party to a number of pending and threatened
legal actions. These may involve litigation by or against us relating to, among
other things, contractual rights under vendor, insurance or other contracts;
intellectual property or patent rights; equipment, service, payment or other
disputes with customers; or disputes with employees. Some of these actions may
be brought as a purported class action on behalf of a purported class of
employees, customers or others.
Our wholly-owned subsidiary,
Imagitas, Inc., is a defendant in ten purported class actions filed in six
different states. These lawsuits have been coordinated in the United States
District Court for the Middle District of Florida,
In re: Imagitas, Drivers
Privacy Protection Act Litigation
(Coordinated, May 28, 2007). Each of
these lawsuits alleges that the Imagitas DriverSource program violated the
federal Drivers Privacy Protection Act (DPPA). Under the DriverSource program,
Imagitas entered into contracts with state governments to mail out automobile
registration renewal materials along with third party advertisements, without
revealing the personal information of any state resident to any advertiser. The
DriverSource program assisted the state in performing its governmental function
of delivering these mailings and funding the costs of them. Imagitas has
discontinued its DriverSource program. The plaintiffs in these actions are
seeking statutory damages under the DPPA. On April 9, 2008, the District Court
granted Imagitas motion for summary judgment in one of the coordinated cases,
Rine,
et al. v. Imagitas, Inc
. (United States District Court, Middle District of
Florida, filed August 1, 2006). On July 30, 2008, the District Court issued a
final judgment in the
Rine
lawsuit and stayed all of the other cases
filed against Imagitas pending an appellate decision in
Rine
. On August
27, 2008, the
Rine
plaintiffs filed an appeal of the District Courts
decision in the United States Court of Appeals, Eleventh Judicial Circuit. The
appellate process in this case is proceeding.
We expect to prevail in the
lawsuits against Imagitas; however, as litigation is inherently unpredictable,
there can be no assurance in this regard. If the plaintiffs do prevail, the
results may have a material effect on our financial position, future results of
operations or cash flows, including, for example, our ability to offer certain
types of goods or services in the future.
On October 28, 2009, the
Company and certain of our current and former officers, were named as
defendants in
NECA-IBEW Health & Welfare Fund v. Pitney Bowes Inc. et
al.
, a class action lawsuit filed in the U.S. District Court for the
District of Connecticut. The complaint asserts claims under the Securities
Exchange Act of 1934 on behalf of those who purchased the common stock of the
Company during the period between July 30, 2007 and October 29, 2007. We
believe this case is without merit and intend to defend it vigorously.
39
Item 1A:
Risk Factors
There were no
material changes to the risk factors identified in the Annual Report on Form
10-K for the year ended December 31, 2008.
Item 2:
Unregistered Sales of Equity Securities and Use of Proceeds
Repurchases of
Equity Securities
We repurchase shares of our common stock under a systematic program to
manage the dilution created by shares issued under employee stock plans and for
other purposes. This program authorizes repurchases in the open market. We have
not repurchased or acquired any other shares of our common stock during 2009 in
any other manner.
No shares were purchased during the third quarter of 2009, leaving
approximately $73.4 million available for future repurchases under this program
at September 30, 2009.
Item 3:
Defaults Upon Senior Securities
None
Item 4:
Submission of Matters to a Vote of Security Holders
None
Item 5:
Other Information
Attached
hereto as Exhibit 10 is the form of Notice of Cash Incentive Unit Award,
Nonqualified Stock Option and Restricted Stock Unit Award (the Notice), to be
used to set forth the terms of grants, including grants to the Companys named
executive officers, of cash incentive units (CIUs), nonqualified stock
options (Options) and restricted stock units (RSUs) pursuant to the Pitney
Bowes 2007 Stock Plan (the 2007 Plan), in the case of Options and RSUs and
pursuant to the Pitney Bowes Inc. Key Employees Incentive Plan (the KEIP, and
together with the 2007 Plan, the Plans) in the case of CIUs. The form of
Notice of Cash Incentive Unit Award and Nonqualified Stock Option were
previously filed as Exhibit (10)(n) to Form 10-Q, filed May 4, 2006. The terms
of this Notice were approved by the Executive Compensation Committee of the
Board of Directors of Company at the time of the grant of each applicable
award.
The Notice
contemplates that awards will vest pursuant to the vesting schedules set forth
in the Notice, subject to the continued employment of the participant, the
terms and conditions of the Notice and the Plans. Pursuant to the Notice, a
participant will forfeit any unvested portion of their awards upon a voluntary
resignation or a termination by the Company due to Gross Misconduct (as defined
in the applicable Plan). CIUs will be prorated upon a termination due to death,
Disability (as defined in the KEIP), Retirement (as defined in the KEIP) or
upon an involuntary termination, provided that a prorated payment upon an
involuntary termination will only be available if the termination is pursuant
to the terms of a written severance agreement, the recipient is not Retirement
eligible and if the award has been outstanding for at least one year as of the
last day the employee actually worked. Pursuant to the terms of the Notice,
Options and RSUs will be subject to immediate vesting upon a termination due to
death, Disability (as defined in the 2007 Plan) or Retirement (as defined in
the 2007 Plan). Options and RSUs will continue to vest upon an involuntary
termination, if a written severance agreement is entered into in connection
with such termination, according to the terms of such written severance
agreement. Upon the settlement of RSUs, the Company will withhold the number of
RSUs having the fair market value sufficient to satisfy the statutory minimum
withholding tax.
The foregoing
description of the terms of the Notice is qualified in its entirety by
reference to the actual terms of the Notice, which are attached hereto as
Exhibits 10.
Item 6:
Exhibits
See Index of Exhibits.
40
S
ignatures
Pursuant to
the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
|
|
PITNEY BOWES
INC.
|
|
|
November 6,
2009
|
|
|
/s/ Michael
Monahan
|
|
|
|
Michael
Monahan
|
|
Executive
Vice President and
|
|
Chief
Financial Officer
|
|
(Principal
Financial Officer)
|
|
|
|
/s/ S. J.
Green
|
|
|
|
S. J. Green
|
|
Vice
President Finance and
|
|
Chief
Accounting Officer
|
|
(Principal
Accounting Officer)
|
41
Exhibit Index
|
|
|
|
|
Exhibit Number
|
Description
|
|
Page Number
|
|
|
|
|
(3)(i)(a)*
|
|
Restated Certificate of
Incorporation, as amended, incorporated by reference to Exhibit (3) to Form
10-Q as filed with the Commission on August 14, 1996. (Commission file number
1-3579)
|
|
Not
applicable
|
|
|
|
|
|
(3)(i)(b)*
|
|
Certificate
of Amendment to the Restated Certificate of Incorporation (as amended May 29,
1996), incorporated by reference to Exhibit (a.1) to Form 10-K as filed with
the Commission on March 27, 1998. (Commission file number 1-3579)
|
|
Not
applicable
|
|
|
|
|
|
(3)(ii)*
|
|
Pitney Bowes Inc. Amended
and Restated By-laws, incorporated by reference to Exhibit (3)(ii) to Form
10-Q as filed with the Commission on August 6, 2007. (Commission file number
1-3579)
|
|
Not
applicable
|
|
|
|
|
|
(10)
|
|
Form of Long-Term
Incentive Award
|
|
Page
43
|
|
|
|
|
|
(12)
|
|
Computation of ratio of
earnings to fixed charges
|
|
Page
48
|
|
|
|
|
|
(31.1)
|
|
Certification of Chief
Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the
Securities Exchange Act of 1934, as amended
|
|
Page
49
|
|
|
|
|
|
(31.2)
|
|
Certification of Chief
Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the
Securities Exchange Act of 1934, as amended
|
|
Page
50
|
|
|
|
|
|
(32.1)
|
|
Certification of Chief
Executive Officer Pursuant to 18 U.S.C. Section 1350
|
|
Page
51
|
|
|
|
|
|
(32.2)
|
|
Certification of Chief
Financial Officer Pursuant to 18 U.S.C. Section 1350
|
|
Page
52
|
|
|
|
|
|
101.INS
|
|
XBRL Report Instance
Document
|
|
|
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension
Schema Document
|
|
|
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Calculation
Linkbase Document
|
|
|
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Label
Linkbase Document
|
|
|
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Presentation
Linkbase Document
|
|
|
|
|
|
|
|
*
|
|
Incorporated by reference
|
|
|
42
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