EXHIBIT 1.1
Lexmark International Group, Inc.
Class A Common Stock
(par value $.01 per share)
------------
Underwriting Agreement
(U.S. Version)
----------------------
March __, 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling Stockholders")
of Lexmark International Group, Inc., a Delaware corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
_______ shares (the "Firm Shares") and, at the election of the Underwriters, up
to _______ additional shares (the "Optional Shares") of Class A Common Stock
(par value $.01 per share) ("Stock") of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the Selling
Stockholders are concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Selling Stockholders of
up to a total of _______ shares of Stock (the "International Shares"), including
the overallotment option thereunder, through arrangements with certain
underwriters outside the United States (the "International Underwriters"), for
whom Xxxxxxx Sachs International [INSERT NAME(S) OF CO-REPRESENTATIVES] are
acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as used in Sections 2, 3, 4, 9 and 11 herein,
and except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters and each of the Selling Stockholders that:
(i) A registration statement on Form S-3 (File No. 333-________) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus contained
therein, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended (the "Act"), which became or will become effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed with the Commission; and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial Registration Statement at the time it
was declared effective and (ii) the documents incorporated by reference in
the prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective, each as
amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; and any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company
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by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for
use therein;
(iv) The Registration Statement conforms, and any further amendments or
supplements to the Registration Statement will conform, in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective
date of the Registration Statement and any amendment thereto, contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers
therein to Item 7 to Form S-3;
(v) The Prospectus conforms, and any further amendments or supplements to
the Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable filing date of the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers
therein to Item 7 to Form S-3;
(vi) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which loss or interference has had a material adverse effect or
would reasonably be expected to have a material adverse effect on the general
affairs, financial position, stockholders' equity or consolidated results of
operations of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"), otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
change in the capital stock (other than pursuant to any employee incentive or
benefit plan in existence on the date of this Agreement) or increase in the
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long-term debt of the Company or any of its subsidiaries in excess of
$75,000,000, or any material adverse change, or any development that would
reasonably be expected to involve a material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results or operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(vii) The Company, Lexmark International, Inc. and Lexmark
International, S.N.C. (the latter two companies, the "Material Subsidiaries")
have good title to all principal real properties (including, without
limitation, all such properties described under the caption "Item 2:
Properties" in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (the "10-K") incorporated by reference in the
Prospectus) and good title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as, individually or in the aggregate, do
not and would not reasonably be expected to have a Material Adverse Effect;
and all principal real properties and buildings held under lease by the
Company and its Material Subsidiaries (including, without limitation, all
such properties and buildings described under the caption "Item 2:
Properties" in the 10-K incorporated by reference in the Prospectus) are held
by them under valid, subsisting and enforceable leases with such exceptions
as, individually or in the aggregate, do not and would not reasonably be
expected to have a Material Adverse Effect;
(viii) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification,
except where the failure to possess such power or authority, or to be so
qualified or in good standing, would not have a Material Adverse Effect; and
each Material Subsidiary of the Company has been duly incorporated and is
validly existing as a corporation, or a societe en nom collectif, as the case
may be, in good standing under the laws of its jurisdiction of incorporation;
(ix) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders hereunder and
under the International Underwriting Agreement and the shares of the
Company's Class B Common Stock (par value $.01 per share) ("Class B Stock"))
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description of the Stock or Class B Stock, as
the case may be, contained in the Prospectus; all of the issued shares of
capital stock of Lexmark International, Inc. have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares and except as set forth in the Prospectus) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the equity interests of Lexmark
International, S.N.C. have been duly and validly authorized and issued and
are fully paid and (except for directors' qualifying shares and except as set
forth in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(x) The compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the
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property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Third
Restated Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, except, in each case (other than with respect to the
Third Restated Certificate of Incorporation or By-Laws of the Company), for
such conflicts, violations, breaches or defaults which would not,
individually or in the aggregate, have a Material Adverse Effect or impair
the Company's ability to perform its obligations hereunder or under the
International Underwriting Agreement; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration under the Act
of the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters and the International Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or By-laws or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound except, in each case (other than, in the case of
the Company, with respect to its Third Restated Certificate of Incorporation
and By-laws), for such conflicts, violations, breaches or defaults which do
not have or would not reasonably be expected to have a Material Adverse
Effect or impair the Company's ability to perform its obligations hereunder
or under the International Underwriting Agreement;
(xii) The statements set forth in the description of the Common Stock of
the Company, which is contained in the Company's Registration Statement on
Form 8-A filed with the Commission on October 27, 1995 incorporated by
reference in the Prospectus, including any amendments or reports filed for
the purpose of updating such description, and the description of certain
preferred stock purchase rights that have attached to the Common Stock, which
is contained in the Company's Registration Statement on Form 8-A filed with
the Commission on February 27, 1998 incorporated by reference in the
Prospectus, including any amendments or reports filed for the purpose of
updating such description, insofar as they purport to constitute a summary of
the terms of the Stock, constitute in all material respects a fair summary of
such terms;
(xiii) The statements set forth in the international version of the
Prospectus under the caption "Certain United States Tax Consequences to Non-
U.S. Holders", insofar as such statements purport to summarize certain United
States federal income and estate tax consequences of the ownership and
dispensation of the Stock by certain non-U.S. holders (as such term is
defined in such Prospectus) of the Shares, provide a fair summary of such
consequences under current law;
(xiv) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, individually or in the aggregate,
have had, or, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have, a Material Adverse
Effect; and, to the best knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
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(xv) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(xvi) To the best knowledge of the Company, Coopers & Xxxxxxx L.L.P.,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and
(xvii) Except as disclosed in the Prospectus, the Company and its
subsidiaries own or possess or are licensed to use the patents, patent
licenses, trademarks, trade names, service marks, service names, copyrights
and other intellectual property rights (collectively, the "Intellectual
Property") necessary to carry on their business as presently conducted and as
proposed to be conducted, without any conflict with or infringement of the
rights of others except for any such conflicts or infringements that,
individually or in the aggregate, do not or would not reasonably be expected
to have a Material Adverse Effect; to the best knowledge of the Company, none
of the technology employed by the Company or its subsidiaries has been
obtained or is being used by the Company or its subsidiaries in violation of
any contractual or fiduciary obligation binding on the Company, its
subsidiaries or any of their respective directors, employees or consultants
or otherwise in violation of the rights of any person except for any such
violations that, individually or in the aggregate, do not or would not
reasonably be expected to have a Material Adverse Effect; except as disclosed
in the Prospectus, neither the Company nor any of its subsidiaries has
received any notice of infringement or violation of or conflict with (and
knows of no such infringement or conflict with) asserted rights of others
with respect to any Intellectual Property or any trade secrets, proprietary
information, inventions, know-how, processes and procedures owned, used by or
licensed to the Company or any such subsidiary which, individually or in the
aggregate, if the subject of any unfavorable decision, ruling or finding,
would reasonably be expected to have a Material Adverse Effect.
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Stockholder of this Agreement and the
International Underwriting Agreement, and for the sale and delivery of the
Shares to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this Agreement
and the International Underwriting Agreement and to sell, assign, transfer
and deliver the Shares to be sold by such Selling Stockholder hereunder and
under the International Underwriting Agreement;
(ii) With respect to each Selling Stockholder that has executed a Power
of Attorney and Custody Agreement hereinafter referred to, all consents,
approvals, authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of the Power of Attorney and Custody Agreement
have been obtained, and such Selling Stockholder has full right, power and
authority to enter into the Power of Attorney and Custody Agreement and to
authorize the attorneys-in-fact to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement;
(iii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement and the
compliance by such Selling Stockholder with all of the provisions of this
Agreement, the International Underwriting Agreement, the Power of Attorney
and the Custody Agreement and the consummation of the transactions herein and
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therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound, or to which any of the property or
assets of such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or By-
laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the Partnership Agreement of such Selling Stockholder if such
Selling Stockholder is a partnership or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over such Selling Stockholder or the property of such Selling Stockholder;
(iv) Such Selling Stockholder has, and immediately prior to each Time of
Delivery (as defined in Section 4 hereof) such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement, free and clear
of all liens, encumbrances, equities or claims; and, upon delivery of such
Shares and payment therefor pursuant hereto and thereto, good and valid title
to such Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several Underwriters or the International
Underwriters, as the case may be (assuming that the several Underwriters and
the several International Underwriters are without notice of any adverse
claim, as defined in the Uniform Commercial Code as adopted in the State of
New York (the "Code") and are otherwise protected purchasers for the purposes
of the Code and that such Underwriters' and the International Underwriters'
rights are not limited by subsection (c) of Section 8-302 of the Code);
(v) During the period beginning on the date hereof and continuing to and
including the date 60 days after the date of the Prospectus, such Selling
Stockholder will not (A) enter into any agreement providing for, or effect,
any public sale, distribution or other disposition (including, without
limitation any sale pursuant to Rule 144, Rule 144A or Regulation S under the
Act, and any sale in a broker's transaction or through a market maker) of any
Class A Common Stock, Class B Common Stock or other equity securities of the
Company or any security convertible into or exchangeable or exercisable for
any equity security of the Company or to grant any public option for any such
sale, in any case without the prior written consent of Xxxxxxx, Xxxxx & Co.,
as representatives of the Underwriters; (B) sell, pledge, transfer or
otherwise dispose of any such securities in any private transaction exempt
from the registration requirements of the Act unless, prior to the
consummation thereof, the person to whom such securities are sold, pledged,
transferred or otherwise disposed of (including without limitation any
affiliate of the Selling Stockholder) delivers to you a letter signed by such
person substantially in the form of this paragraph; and (C) request
registration of any securities of the Company pursuant to any registration
rights that have been granted to the Selling Stockholder, without the prior
written consent of Xxxxxxx, Sachs & Co., as representatives of the
Underwriters;
(vi) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(vii) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling Stockholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did not, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the
7
Commission, as the case may be, will not contain 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; provided
further that, for all purposes of this Agreement and the International
Underwriting Agreement (including Sections 8(a), 8(b) and 8(g) hereof and
thereof), the only information furnished to the Company by such Selling
Stockholder expressly for use in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any amendment or supplement thereto, are the
statements pertaining to the number of shares owned, the manner in which such
shares are held (whether beneficially or otherwise) and the number of shares
proposed to be sold by such Selling Stockholder under the caption "Selling
Stockholders";
(viii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at the
First Time of Delivery (as hereinafter defined) a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof);
(ix) Certificates in negotiable form representing all of the Shares to be
sold by such Selling Stockholder hereunder and under the International
Underwriting Agreement have been placed in custody under a custody agreement
between each Selling Stockholder, in the form heretofore furnished to you
(the "Custody Agreement"), duly executed and delivered by such Selling
Stockholder to ChaseMellon Shareholders Services, as custodian (the
"Custodian"), and such Selling Stockholder has duly executed and delivered a
Power of Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and each
of them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-
Fact") with authority to execute and deliver this Agreement and the
International Underwriting Agreement on behalf of such Selling Stockholder,
to determine the purchase price to be paid by the Underwriters and the
International Underwriters to the Selling Stockholders as provided in Section
2 hereof, to authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling
Stockholder in connection with the transactions contemplated by this
Agreement, the International Underwriting Agreement and the Custody
Agreement;
(x) The Shares to be sold by such Selling Stockholder hereunder and under
the International Underwriting Agreement and represented by the certificates
held in custody for such Selling Stockholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder and the International
Underwriters under the International Underwriting Agreement; the arrangements
made by such Selling Stockholder for such custody, and the appointment by
such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable; the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death
or incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling Stockholder or any
such executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement, of the
International Underwriting Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney
shall be as valid as if such death,
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incapacity, termination, dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination,
dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per share of
$_____, the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined, in each case, by multiplying the aggregate number
of Firm Shares to be sold by such Selling Stockholder as set forth opposite its
name in Schedule II hereto by a fraction, the numerator of which is the
aggregate number of Firm Shares to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the aggregate number of Firm Shares to be purchased by all of the
Underwriters from all of the Selling Stockholders hereunder, and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
the Selling Stockholders, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined, in each case, by multiplying such
number of Optional Shares by a fraction, the numerator of which is the maximum
number of Optional Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to _______ Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the number of Optional
Shares to be sold by each Selling Stockholder. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Attorneys-in-Fact otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) Certificates in definitive form for the Shares to be purchased by
each Underwriter hereunder and in such authorized denominations and registered
in such names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight
hours' prior notice to the Selling Stockholders, shall be delivered by or on
behalf of the Selling Stockholders to Xxxxxxx, Sachs & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of same day funds payable to the order
of the Custodian, as their interests may appear. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, 9:30 a.m., New York City time, on March __,
9
1998, or on such other time and date as Xxxxxxx, Xxxxx & Co. and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by Xxxxxxx, Sachs &
Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Sachs & Co. and the Selling Stockholders may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of Delivery",
and each such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(k) hereof, will be delivered at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, or at the Closing
Location or elsewhere in The City of New York, as directed by Xxxxxxx, Sachs &
Co. not later than the New York Business Day before the Time of Delivery, all at
each Time of Delivery. A meeting will be held at the Closing Location at 11:00
a.m., New York City time, on the New York Business Day next preceding each Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters and, to the extent
provided in Sections 5(a), 5(d), 5(e) and 5(h), each of the Selling Stockholders
(it being understood that you, and not the Selling Stockholders, shall have the
right to consent to the actions referred to therein):
(a) To prepare the Prospectus in a form approved by you; to file the
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or (to
the Company's knowledge) threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Shares, provided
that
10
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process, or
subject itself to taxation, in any jurisdiction;
(c) Prior to 12:00 noon, New York City Time, on the New York Business Day
next succeeding the date of this Agreement, and thereafter, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as you may reasonably request, and, if the delivery of a prospectus is required
at any time prior to the expiration of nine months after the time of issue of
the Prospectus in connection with the offering or sale of the Shares and if at
such time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify you
and upon your request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time nine months
or more after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and continuing to and
including the date 60 days after the date of the Prospectus, not to file a
registration statement with respect to, enter into any agreement providing for,
or effect, any public sale, distribution or other disposition (including,
without limitation, any sale pursuant to Rule 144 or Rule 144A under the Act and
any sale in a broker's transaction or through a market maker) of, except as
provided hereunder and under the International Underwriting Agreement, any
Stock, Class B Stock or securities of the Company that are substantially similar
to the Stock or Class B Stock, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right to
receive, Stock, Class B Stock or any such substantially similar securities
(other than pursuant to employee benefit or incentive plans existing on, or upon
the conversion or exchange of convertible or exchangeable securities outstanding
as of, the date of this Agreement), without the prior written consent of
Xxxxxxx, Xxxxx & Co.;
(f) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
11
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use its best efforts to enforce the obligations of the stockholders
under their respective agreements described in Section 7(i) hereof; and
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a
Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washing ton, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company and each of the Selling Stockholders covenant and agree with
one another and with the several Underwriters that (a) the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
International Underwriting Agreement, the Agreement between Syndicates, the
Selling Agreements, the Blue Sky Memorandum, closing documents and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky surveys;
(iv) all fees and expenses in connection with listing the Shares on the New York
Stock Exchange; (v) the filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; (viii) the fees, disbursement
expenses of one counsel selected and retained by the Selling Stockholders as a
group in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ix) the fees and expenses of the
Attorneys-in-Fact and the Custodian, if any; and (x) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section; and (b) each Selling
Stockholder will pay or cause to be paid all costs and expenses incurred by such
Selling Stockholder incident to the performance of such Selling Stockholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of any counsel for such Selling
Stockholder in addition to the counsel referred to in clause (a)(viii), and (ii)
all expenses and taxes incident to the sale and delivery of the Shares to be
sold by such Selling Stockholder to the Underwriters hereunder. In connection
with Clause (b) (ii) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to
pay New York State stock transfer tax, and the Selling Stockholder agrees to
reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses,
12
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Selling Stockholders hereunder to sell and deliver
Shares at a Time of Delivery shall be subject, in their discretion, to the
conditions set forth in Sections 7(a), 7(c), 7(d), 7(f) and 7(k) hereof (it
being understood that you, and not the Selling Stockholders, shall have the
right to determine whether the form and substance of the documents referred to
in Sections 7(c), 7(d), 7(f) and 7(k) are satisfactory), to the condition that
all representations and warranties and other statements of the Company herein
are, at and as of such Time of Delivery, true and correct, and to the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed. The obligations of the Underwriters hereunder, as
to the Shares to be delivered at each Time of Delivery, shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company and of the Selling Stockholders herein are, at
and as of such Time of Delivery, true and correct, and to the condition that the
Company and the Selling Stockholders shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have furnished
to you such opinion or opinions, dated such Time of Delivery, with respect to
the matters covered in paragraphs (i), (ii), (iv) and (vi) of subsection (c)
below as well as the Registration Statement and Prospectus and such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Debevoise & Xxxxxxxx, counsel for the Company, shall have furnished to
you their written opinions, dated such Time of Delivery, in the forms attached
hereto as Annexes 1(a) and 1(b), to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business
as described in the Prospectus or documents incorporated by reference
therein;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of Delivery) have been
duly and validly authorized and issued and are fully paid and non-assessable;
and the Shares conform as to legal matters in all material respects to the
description of the Stock contained in the Prospectus;
(iii) Each Material Subsidiary of the Company has been duly incorporated
and is validly existing as a corporation, or a societe en nom collectif, as
the case may be, in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of Lexmark
International, Inc. have been duly and validly authorized and issued, are
fully paid and non-assessable, and are owned directly or indirectly by the
Company, free and clear (except as set forth in the Prospectus) of all liens,
encumbrances, equities or claims; and all of the equity interests of Lexmark
International, S.N.C. have been duly and validly authorized and issued and
13
are fully paid and are owned directly or indirectly by the Company, free and
clear (except as set forth in the Prospectus) of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall provide copies of such
opinions and certificates to you and shall state that they believe that both
you and they are justified in relying upon such opinions and certificates);
(iv) This Agreement and the International Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(v) No consent, approval, authorization, order, registration or
qualification of or with any State of New York or Delaware or U.S. Federal
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration under the Act
of the Shares, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters and the International Underwriters (as to which such counsel
need not express an opinion);
(vi) The statements set forth in the description of the Common Stock of
the Company, which is contained in the Company's Registration Statement on
Form 8-A filed with the Commission on October 27, 1995 incorporated by
reference in the Prospectus, including any amendments or reports filed for
the purpose of updating such description, and the description of certain
preferred stock purchase rights that have attached to the Common Stock, which
is contained in the Company's Registration Statement on Form 8-A filed with
the Commission on February 27, 1998 incorporated by reference in the
Prospectus, including any amendments or reports filed for the purpose of
updating such description, insofar as they purport to constitute a summary of
the terms of such stock, constitute in all material respects a fair summary
of such terms;
(vii) The statements set forth in the international version of the
Prospectus under the caption "Certain United States Tax Consequences to Non-
U.S. Holders", insofar as such statements purport to summarize certain United
States federal income and estate tax consequences of the ownership and
disposition of the Stock by certain non-U.S. holders (as such term is defined
in such Prospectus) of the Shares, provide a fair summary of such
consequences under current law;
(viii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act; and
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements, related schedules and other
financial and statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations thereunder.
In addition to the matters set forth above, such opinion shall also include a
statement to the effect that such counsel has not checked the accuracy or
completeness of, or otherwise verified, and is not passing upon and assumes no
responsibility for the accuracy or completeness of, the information contained in
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, except to the limited extent set forth in the concluding clause of
Section 7(c)(ii) above, that in the course of the preparation of the
Registration Statement and the Prospectus by the Company, such counsel
participated in conferences with representatives of the Company, the independent
public accountants of the Company, the Representatives and their counsel with
respect thereto and that such counsel's examination of the Registration
Statement and the Prospectus and such counsel's participation in the above-
mentioned conferences did not cause such counsel to believe that the
Registration Statement or any amendment thereto (except as to the financial
statements and related schedules and other financial and statistical information
contained therein, as to which such counsel need not express a belief), at the
time the Registration Statement or amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus
14
or any amendment or supplement thereto (except as to the financial statements
and related schedules and other financial and statistical information contained
therein, as to which such counsel need not express a belief), at the time it was
filed pursuant to Rule 424(b) or on the Closing Date, contained or contains an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than as to the laws of State of New
York, the General Corporation Law of the State of Delaware and the Federal laws
of the United States;
(d) Xxxxxxx X. Xxxx, General Counsel for the Company, shall have furnished
to you his written opinion, dated such Time of Delivery, in the form attached
hereto as Annex I(c), to the effect that:
(i) Lexmark International, Inc. 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;
(ii) The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure to so qualify
would not, individually or in the aggregate, have a Material Adverse Effect;
(iii) To the best of such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which, individually or in the aggregate, have had, or, if
determined adversely to the Company or any of its subsidiaries, would
reasonably be expected to have, a Material Adverse Effect; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) The compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Third Restated Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except, in each case (other than with respect to the Third
Restated Certificate of Incorporation or By-Laws of the Company), for such
conflicts, violations, breaches or defaults which would not, individually or
in the aggregate, have a Material Adverse Effect or impair the Company's
ability to perform its obligations hereunder or under the International
Underwriting Agreement;
(v) Neither the Company nor Lexmark International, Inc. is in violation
of its Certificate of Incorporation or By-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument known to such counsel to which it is a party or
by which it or any of its properties may be bound, except, in each case
(other than with respect to such Certificate of Incorporation and By-Laws),
for such conflicts, violations, breaches
15
or defaults which would not have a Material Adverse Effect or impair the
Company's ability to perform its obligations hereunder or under the
International Underwriting Agreement;
(vi) To the best of such counsel's knowledge, other than as set forth in
the Prospectus: (a) the Company has not received notice of any claim of
infringement or violation of or conflict with rights or claims of others with
respect to any patents, patent rights or other Intellectual Property owned,
licensed or used by the Company except for any such conflicts or
infringements that, individually or in the aggregate, do not or would not
reasonably be expected to have a Material Adverse Effect; (b) and such
counsel is not aware of any research or licensing agreements, royalty
arrangements, patents, patent rights or other Intellectual Property of others
which are infringed by the Company's products or processes in such a manner
which would, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect;
(vii) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to such
Time of Delivery (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 such documents 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 Exchange Act with the Commission, an untrue statement of
a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules and other
financial and statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations thereunder.
In addition to the matters set forth above, such opinion shall also include a
statement to the effect that such counsel has not checked the accuracy or
completeness of, or otherwise verified, and is not passing upon and assumes no
responsibility for the accuracy or completeness of, the information contained in
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, that in the course of the preparation of the Registration Statement and
the Prospectus by the Company, such counsel participated in conferences with
representatives of the Company, the independent public accountants of the
Company, the Representatives and their counsel with respect thereto and that
such counsel's examination of the Registration Statement and the Prospectus and
such counsel's participation in the above-mentioned conferences did not cause
such counsel to believe that the Registration Statement or any amendment thereto
(except as to the financial statements and related schedules and other financial
and statistical information contained therein, as to which such counsel need not
express a belief), at the time the Registration Statement or amendment became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (other than the financial statements and related schedules
and other financial and statistical information contained therein, as to which
such counsel need not express a belief), at the time it was filed pursuant to
Rule 424(b) or on the Closing Date, contained or contains an untrue statement of
a material fact or omitted to state
16
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may state that he expresses no opinion
as to the laws of any jurisdiction other than as to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the Federal laws
of the United States;
(e) Ropes & Xxxx, counsel for the Selling Stockholders, as indicated in
Schedule II hereto, shall have furnished to you their written opinion with
respect to each of the Selling Stockholders, dated such Time of Delivery, in the
form attached hereto as Annex I(d), to the effect that:
(i) A Power of Attorney has been duly executed and delivered by or on
behalf of each Selling Stockholder and a Custody Agreement has been duly
executed and delivered by each Selling Stockholder, and such Agreements
constitute valid and binding agreements of such Selling Stockholder in
accordance with their terms;
(ii) This Agreement and the International Underwriting Agreement have
been duly executed and delivered by or on behalf of each Selling Stockholder;
and the sale of the Shares to be sold by such Selling Stockholder hereunder
and thereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the International Underwriting Agreement,
the Power of Attorney and the Custody Agreement will not conflict with or
result in any violation of the provisions of the Certificate of Incorporation
or By-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the Partnership Agreement of such Selling Stockholder if such
Selling Stockholder is a partnership or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over such Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement and the International
Underwriting Agreement in connection with the Shares to be sold by such
Selling Stockholder hereunder or thereunder, except such as have been
obtained under the Act and such as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and distribution
of such Shares by the Underwriters or the International Underwriters;
(iv) Immediately prior to the Time of Delivery, each Selling Stockholder
was the sole registered owner of the Shares to be sold by such Selling
Stockholder. Upon registration of the Shares in the names of the
Underwriters in the stock records of the Company (or in the name of a nominee
for DTC in such stock records, with appropriate entries to the account of the
Underwriters having been made in the records of DTC) the Underwriters will
have acquired the Shares, free of any claim by any other person that such
person has a property interest in the Shares and that it is a violation of
such other person's rights for the Underwriters to hold, transfer or deal
with the Shares (assuming that the Underwriters are without notice of any
adverse claim); and
(v) This Agreement and the International Underwriting Agreement have been
duly executed and delivered by or on behalf of The Xxxxxxx & Dubilier Private
Equity Fund IV Limited Partnership (the "Fund"); and the sale of the Shares
to be sold by the Fund hereunder and thereunder and the compliance by the
Fund with all of the provisions of this Agreement and the International
Underwriting Agreement, the Power of Attorney and the Custody Agreement and
the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms or provisions
of, or constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel
to which the Fund is a party or by which the Fund is bound, or to which
17
any of the property or assets of the Fund is subject, nor will such action
result in any violation of the provisions of the Partnership Agreement or
similar instrument of the Fund or any statute known to such counsel or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Fund, except for such conflicts,
breaches, violations or defaults as would not, individually or in the
aggregate, impair the Fund's ability to perform its obligations hereunder and
under the International Underwriting Agreement.
In rendering such opinion, Ropes & Xxxx may state that they express no opinion
as to the laws of any jurisdiction other than as to the laws of the Commonwealth
of Massachusetts, the General Corporation Law of the State of Delaware and the
Federal laws of the United States, and in rendering certain of the opinions in
subparagraphs (i), (ii), (iii) and (v), Ropes & Xxxx may rely exclusively on
opinions of other counsels for each of the Selling Stockholders, provided that
Ropes & Xxxx shall provide copies of such opinions to you and shall state that
they are not aware of anything to suggest that such other counsels are not
competent to render such opinions, and in rendering the opinion in subparagraph
(iv), Ropes & Xxxx may rely upon a certificate of such Selling Stockholder in
respect of matters of fact as to ownership of, and liens, encumbrances, equities
or claims on the Shares sold by such Selling Stockholder, provided that Ropes &
Xxxx shall provide a copy of such certificate to you and shall state that they
believe that both you and they are justified in relying upon such certificate;
(f) On the effective date of the Registration Statement, on the date of the
Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New
York City time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement and also
at each Time of Delivery, Coopers & Xxxxxxx L.L.P. shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you (the executed copy of the letter delivered prior
to the execution of this Agreement is attached as Annex II(a) hereto and a draft
of the form of the letter to be delivered on the effective date of any post
effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex II(b) hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock (other than
pursuant to any employee benefit or incentive plan in existence on the date of
this Agreement) or increase in the long-term debt of the Company or any of its
subsidiaries in excess of $75,000,000, or any change, or any development that
would reasonably be expected to involve a change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any such
case described in Clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(h) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes it
impracticable or
18
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(i) The Company has obtained and delivered to the Underwriters executed copies
of holdback agreements from each of the stockholders of the Company listed on
Exhibit I hereto in the form previously provided to you;
(j) The Company and the Selling Stockholders shall have furnished or caused to
be furnished to you at such Time of Delivery certificates of officers of the
Company and of the Selling Stockholders, respectively, satisfactory to you as to
the accuracy of the representations and warranties of the Company and the
Selling Stockholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Stockholders of all of
their respective obligations hereunder to be performed at or prior to such Time
of Delivery, and as to such other matters as you may reasonably request, and the
Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (g) of this Section, and as to such
other matters as you may reasonably request; and
(k) The Company shall have complied with the provisions of Section 5(c) hereof
with respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein; and provided, further,
that the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person to whom
there was not sent by commercially reasonable means, at or prior to the written
confirmation of such sale, a copy of the Prospectus, where such delivery is
required by the Act, if the Company has previously furnished sufficient copies
thereof to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus and corrected in the Prospectus.
(b) The Company will indemnify and hold harmless each Selling Stockholder
against any losses, claims, damages or liabilities, joint or several, to which
such Selling Stockholder may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a fact required to
be stated therein or necessary to make the statements therein not
19
misleading; and will reimburse each Selling Stockholder for any legal or other
expenses reasonably incurred by such Selling Stockholder in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder expressly for use therein, or that arises out of or is based on such
Selling Stockholder's failure to deliver a copy of the Registration Statement,
Preliminary Prospectus or Prospectus, or any amendment or supplement thereto.
(c) Each of the Selling Stockholders will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company or the
Underwriters by such Selling Stockholder expressly for use therein; and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that no
Selling Stockholder shall be liable to any Underwriter under the indemnity
agreement in this subsection (c) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus, where such delivery is required by the Act, if
the Company has previously furnished sufficient copies thereof to such
Underwriter and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was identified in writing at such time to such
Underwriter and corrected in the Prospectus; and provided, further, that the
liability of a Selling Stockholder pursuant to this subsection (c) shall not
exceed the net amount received by such Selling Stockholder (after deducting any
underwriting discount) from the sale of the Shares pursuant to the Prospectus.
(d) Each of the Selling Stockholders will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company or the Underwriters by such Selling Stockholder
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no Selling Stockholder shall be liable in any such
20
case to the extent that any such loss, claim, damage or liability arises out of
or is based on the Underwriters' failure to deliver a copy of the Registration
Statement, Preliminary Prospectus or Prospectus, or any amendment or supplement
thereto; and provided, further, that the liability of a Selling Stockholder
pursuant to this subsection (d) shall not exceed the net amount received by such
Selling Stockholder (after deducting any underwriting discount) from the sale of
the Shares pursuant to the Prospectus.
(e) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(f) Promptly after receipt by an indemnified party under subsection (a), (b),
(c), (d) or (e) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on all claims that were or could have been made by all parties to
such action or claim, arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(g) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b),
(c), (d) or (e) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then, in every case (except
as specifically provided below), each indemnifying party shall contribute to the
amount paid
21
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares (except, solely in any case where the Company is required
hereunder to indemnify a Selling Stockholder or vice versa, in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and such Selling Stockholder on the other from the offering of the
Shares). If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (f) above, then, in every case
(except as specifically provided below), each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations
(except, solely in any case where the Company is required hereunder to indemnify
a Selling Stockholder or vice versa, in such proportion as is appropriate to
reflect not only such relative benefits as would apply in such case as provided
above but also the relative fault of the Company on the one hand and such
Selling Stockholder on the other in connection with such statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations). The
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or the Underwriters on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, each of the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (g) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (g). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (g) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (g), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(g) to contribute are several in proportion to their respective underwriting
obligations and not joint. Notwithstanding the foregoing, a Selling Stockholder
shall not be required to contribute under this subsection (g) except to the
extent and under such circumstances as such Selling Stockholder would have been
liable pursuant to Section 8(c) or (d) hereof had indemnification been
enforceable under applicable law.
22
(h) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act. The
obligations of the Company under Section 8(b) hereof shall extend upon the same
terms and conditions, to each of the Selling Stockholders' directors, officers,
employees, fund managers (if it is an investment fund) or fiduciaries (if it is
a pension or trust fund), and to each person, if any, who controls any Selling
Stockholder within the meaning of the Act. The obligations of the Selling
Stockholders under Section 8(d) hereof shall extend, upon the same terms and
conditions, to each director and officer of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
(i) The Company and the Selling Stockholders hereby agree that, with respect
to the transactions contemplated by this agreement, the provisions of Sections
8(b), 8(d), 8(f) and 8(g) hereof supersede the provisions of Sections 3.7(a),
3.7(b), 3.7(c) and 3.7(e) of the Registration and Participation Agreement, dated
as March 27, 1991, as amended, among the Company and the Selling Stockholders.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Selling Stockholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone such
Time of Delivery for a period of not more than five New York Business Days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares
of a defaulting Underwriter or Underwriters by you and the Selling Stockholders
as provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
of the Shares to be purchased at such Time of Delivery, then the Selling
Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the number of
Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares
of a defaulting Underwriter or Underwriters by you and the Selling Stockholders
as provided in subsection (a) above,
23
the aggregate number of such Shares which remains unpurchased exceeds one-
eleventh of the aggregate number of all of the Shares to be purchased at such
Time of Delivery, or if the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Company or the Selling Stockholders, except for
the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company and each of the defaulting
Selling Stockholders, if any, pro rata (with the Company's portion based on the
number of Shares to be sold by all non-defaulting Selling Stockholders hereunder
and the defaulting Selling Stockholders' portion based on the number of shares
to be sold by such defaulting Selling Stockholders, if any, hereunder) will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(f) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Stockholders by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
24
13. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and the Selling Stockholders and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the term
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us ten counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
25
Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Stockholder represents by so doing that, to the best of his knowledge,
he has been duly appointed as Attorney-in-Fact by such Selling Stockholder
pursuant to a validly existing and binding Power of Attorney which authorizes
such Attorney-in-Fact to take such action.
Very truly yours,
Lexmark International Group, Inc.
By: _________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
26
The Xxxxxxx & Dubilier Private Equity Fund IV
Limited Partnership
[INSERT NAMES OF OTHER SELLING STOCKHOLDERS]
By: _____________________________________________
Name:
Title: Attorney-In-Fact
As Attorney-in-Fact acting on behalf of the
Selling Stockholders named above.
27
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXX INC.
By: _____________________________________
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
28
SCHEDULE I
TOTAL
NUMBER NUMBER OF OPTIONAL
OF SHARES TO BE
FIRM SHARES PURCHASED IF
TO BE MAXIMUM OPTION
PURCHASED EXERCISED
------------ ------------------
Underwriter
-----------
Xxxxxxx, Sachs & Co. .....................
-------- --------
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc..........................
---------- ----------
Total .....................
========== ==========
29
SCHEDULE II
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- --------------
The Selling Stockholders:
The Xxxxxxx & Dubilier Private Equity Fund IV
Limited Partnership(a) ..........................
---------- ----------
[INSERT NAMES OF OTHER SELLING STOCKHOLDERS] .....
---------- ----------
---------- ----------
Total ..................................
========== ==========
(a) This Selling Stockholder is represented by Ropes & Xxxx, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, and has appointed Xxxxxx X. Xxxxx as
the Attorney-in-Fact for such Selling Stockholder.
[INSERT NAMES OF AND COUNSEL AND ATTORNEYS-IN-FACT FOR OTHER SELLING
STOCKHOLDERS]
30
EXHIBIT I
Selling Stockholders
--------------------
The Xxxxxxx & Dubilier Private Equity Fund IV
Limited Partnership
[INSERT NAMES OF OTHER SELLING STOCKHOLDERS]
Non-Selling Stockholders
------------------------
[INSERT NAMES OF NON-SELLING STOCKHOLDERS]
31
ANNEX I
[Form of opinions of regular and corporate counsel for the Company and counsel
for the Selling Stockholders]
1
ANNEX II
[Executed accountants' comfort letter, dated the effective date, and form of
bring-down comfort letter]
2
