EXHIBIT 1.3
LEXMARK INTERNATIONAL GROUP, INC.
CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
AGREEMENT BETWEEN U.S. AND
INTERNATIONAL UNDERWRITING SYNDICATES
-------------------------------------
March __, 1998
This Agreement is made between (a) Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxx Xxxxxx, Inc. as representatives (the "U.S. Representatives")
for the United States underwriters (the "U.S. Underwriters") listed in Schedule
I to the Underwriting Agreement (U.S. Version) (the "U.S. Underwriting
Agreement") dated the date hereof with Lexmark International Group, Inc. (the
"Company"), and the Selling Stockholders named therein, and (b) Xxxxxxx Xxxxx
International ("GSI") Xxxxxx Brothers International (Europe), Xxxxxxx Xxxxx
International, Xxxxxx Xxxxxxxx & Co. Limited, Xxxxxx Xxxxxxx & Co. International
Limited, Xxxxx Xxxxxx, Inc. as Lead Managers (the "Lead Managers") for the
international underwriters (the "International Underwriters") listed in Schedule
I to the Underwriting Agreement (International Version) (the "International
Underwriting Agreement") dated the date hereof with the Company and the Selling
Stockholders named therein. The U.S. Underwriters and the International
Underwriters are herein collectively called the "Underwriters", each such group
of Underwriters is sometimes separately called a "syndicate", and each of
Xxxxxxx, Xxxxx & Co. and GSI is sometimes called a "syndicate representative" of
the U.S. Underwriters and International Underwriters, respectively.
The U.S. Underwriters, pursuant to the U.S. Underwriting Agreement, have
agreed to purchase _______ Firm Shares and, at the option of the U.S.
Underwriters, up to an additional _______ Optional Shares (collectively, the
"U.S. Shares") and the International Underwriters, pursuant to the International
Underwriting Agreement, have agreed to purchase _______ Firm Shares and, at the
option of the International Underwriters, up to an additional _______ Optional
Shares (collectively, the "International Shares"). In respect of these
offerings, the U.S. Underwriters have entered into an Agreement among
Underwriters (U.S. Version) (the "U.S. AAU") and the International Underwriters
have entered into an Agreement among Underwriters (International Version) (the
"International AAU") (each separately referred to as an "AAU"). The U.S.
Underwriters and the International Underwriters deem it necessary and advisable
in connection therewith that certain of their respective activities be
coordinated pursuant to this Agreement. The U.S. Shares and the International
Shares are hereinafter referred to collectively as the "Shares", and the
"overall underwriting proportion" and the "syndicate underwriting proportion" of
any Underwriter or group of Underwriters shall be that proportion which is to be
underwritten by such Underwriter or Underwriters of either all the Shares or of
all the Shares of the relevant syndicate (in each case exclusive of Optional
Shares, except as the U.S. Representatives and the Lead Managers may mutually
agree). Terms not defined herein are used as defined in the underwriting
agreements referred to above.
1. The U.S. Underwriters, acting through Xxxxxxx, Xxxxx & Co., and the
International Underwriters, acting through GSI, agree that from time to time
until the termination of certain provisions of the U.S. AAU they will consult
with and advise each other as to the availability for sale of Shares purchased
pursuant to the U.S. Underwriting Agreement or the International Underwriting
Agreement and remaining unsold. From time to time, at the direction of or with
the consent of Xxxxxxx, Sachs & Co., in consultation with GSI, the Underwriters
may purchase and sell from one syndicate to the other some or all of such unsold
Shares.
Unless otherwise determined by mutual agreement of the U.S. Representatives
and the Lead Managers, the price and currency settlement of any Shares so
purchased or sold shall be the original public offering price, in United States
dollars, less an amount not greater than the selling concession. Settlement
with respect to any Shares transferred hereunder prior to a Time of Delivery
shall be made on such Time of Delivery if feasible but in no event later than
five business days after the transfer date. Certificates representing the Shares
so purchased shall be delivered on the respective settlement dates or other
mutually satisfactory settlement shall be made. The liability for payment to
the Selling Stockholders of the purchase price of the Shares being purchased
under the respective underwriting agreements shall not be affected by the
provisions of this Agreement.
In connection with the purchase or sale of Shares from one syndicate to the
other pursuant to this Section 1, the obligations of each Underwriter, subject
to the availability of unsold Shares in the case of a sale by an Underwriter's
syndicate, shall be in accordance with the syndicate underwriting proportion of
each Underwriter; provided, however, that an Underwriter, with the consent of
its syndicate representative, may agree to purchase or sell more or fewer Shares
than would constitute its syndicate underwriting proportion and the number of
Shares to be purchased or sold by the other Underwriters in the same syndicate
shall be computed after giving effect to such variance. Except as provided in
this paragraph, the allocation of rights and obligations of Underwriters in
respect of any purchase of Shares from or sale to the other syndicate shall be
governed by the applicable provisions of the respective syndicate's AAU.
2. All stabilization transactions, whether in the United States or
otherwise, shall be conducted at the direction of and subject to the control of
Xxxxxxx, Xxxxx & Co., so that stabilization activities worldwide shall be
coordinated and conducted in compliance with any applicable laws and
regulations.
Subject to the limitations set forth in the AAU of each syndicate as to the
net commitment for long or short account of any Underwriter as the result of
certain transactions, all such stabilization transactions shall be for the
respective accounts of the U.S. Underwriters and the International Underwriters
in accordance with their respective overall underwriting proportions.
3. Xxxxxxx, Sachs & Co., on behalf of the U.S. Representatives, and GSI, on
behalf of the Lead Managers, shall have responsibility for the actions of the
U.S. Underwriters and the International Underwriters, respectively, regarding
overallotments in arranging for sales of Shares; provided, however, that GSI
shall not make any such overallotments without the prior approval of Xxxxxxx,
Xxxxx & Co. Overallotments shall be subject to the limitations set forth in the
AAU of each syndicate as to the net commitment for long or short account of any
Underwriter as the result of certain transactions. GSI shall not exercise on
behalf of the International Underwriters the overallotment option granted to
them by the Selling Stockholders without the prior approval of Xxxxxxx, Sachs &
Co. and shall exercise such option if, when and to the extent directed by
Xxxxxxx, Xxxxx & Co. Each syndicate shall be solely responsible for profits and
losses arising from its overallotments; provided, however, that to the extent
that
2
one syndicate may be accorded an overallotment option that is disproportionate
to its aggregate underwriting commitment at the expense of the size of the
overallotment option of the other syndicate, Xxxxxxx, Sachs & Co. may reallocate
between the syndicates profits and losses arising from overallotments.
4. The U.S. Underwriters agree for the benefit of the International
Underwriters to comply with the U.S. AAU and the International Underwriters
agree for the benefit of the U.S. Underwriters to comply with the International
AAU, including the related Selling Agreements, and to reconfirm the geographic
selling restrictions applicable to the offerings, as summarized in Annex A
hereto.
5. The U.S. Representatives and the Lead Managers agree that:
Time of Delivery is not on the day provided in the U.S. Underwriting Agreement
and in the International Underwriting Agreement, they will mutually agree on a
postponed date within the time permitted by such underwriting agreements and the
settlement dates herein provided shall be adjusted accordingly;
(b) Changes in the public offering price or in the selling concession
and reallowance to dealers will be made only after consultation among them,
but in accordance with the direction of Xxxxxxx, Xxxxx & Co., during the
consultation period specified in the first sentence of Section 1 hereof;
(c) Each syndicate, through the respective syndicate representative,
will keep the other fully informed of the progress of the offering and
distribution of the Shares; and
(d) The Lead Managers shall not terminate the International Underwriting
Agreement pursuant to the conditions set forth in Section 7 thereof except
after consultation with Xxxxxxx, Sachs & Co. on behalf of the U.S.
Representatives.
6. The obligations of the Underwriters set forth in Sections 1, 2, 3 and
4 hereof shall terminate upon the termination of certain provisions (including
the geographic selling restrictions) of the U.S. AAU pursuant to Section 10
thereof, which termination shall be on the thirtieth full business day after the
Firm Shares are released by Xxxxxxx, Xxxxx & Co. for sale to the public, unless
earlier terminated by Xxxxxxx, Sachs & Co. as provided therein. GSI shall cause
the termination of the corresponding provisions of the International AAU
simultaneously with such termination of provisions of the U.S. AAU.
7. Any global advertising with respect to the offering shall be under the
control of Xxxxxxx, Xxxxx & Co. Any regional advertising with respect to the
offering shall be as agreed between Xxxxxxx, Sachs & Co. and the Lead Managers.
8. The U.S. Representatives and the Lead Managers shall agree as to the
expenses which will constitute expenses of the underwriting and distribution of
the Shares common to the U.S. Underwriters and the International Underwriters,
which expenses shall be allocated between the U.S. Underwriters, on the one
hand, and the International Underwriters, on the other, in accordance with their
respective overall underwriting commitments. It is hereby agreed that the fees
and expenses of counsels to the Underwriters and the costs of global
advertising, if any, shall be common expenses. Except with respect to such
common expenses, the International Underwriters will pay the aggregate expenses
incurred in connection with the purchase, carrying or sale of the International
Shares, and the U.S. Underwriters will pay the aggregate expenses incurred in
connection with the purchase, carrying or sale of the U.S. Shares.
Reimbursements for expenses, if any, received by either
3
syndicate from the Company or the Selling Stockholders shall be for the account
of such syndicate.
9. Neither the U.S. Representatives nor the Lead Managers shall, by
virtue of executing this Agreement, have any liability to any other Underwriter
for the failure of another Underwriter to perform its obligations under either
underwriting agreement or either AAU. The duties of Xxxxxxx, Xxxxx & Co.
hereunder shall be administrative and not fiduciary in nature.
10. This Agreement may be amended before or after any Time of Delivery by
mutual written agreement of the undersigned U.S. Representatives and Lead
Managers.
11. This Agreement may be signed in any number of counterparts, which
together shall constitute one and the same instrument, and shall be binding upon
and inure to the benefit of all of the Underwriters.
12. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and year
first above written by the undersigned for themselves and for the Underwriters
as set forth above.
Acting on behalf of themselves and the other
U.S. Underwriters:
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXX INC.
By:
__________________________
(Xxxxxxx, Xxxxx & Co.)
Acting on behalf of themselves and the other
International Underwriters:
XXXXXXX SACHS INTERNATIONAL
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXXX & CO. LIMITED
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXX XXXXXX INC.
By: Xxxxxxx Xxxxx International
By:
__________________________
(Attorney-in-Fact)
4
ANNEX A
SUMMARY OF GEOGRAPHIC SELLING RESTRICTIONS
U.S. UNDERWRITERS (AS SET FORTH IN SECTION 4 OF THE U.S. AAU):
U.S. Underwriters may sell only:
(a) in the United States of America (including the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction
(the "United States"); and
(b) to "U.S. Persons", meaning
(i) individuals resident in the United States, and
(ii) corporations, partnerships or other entities organized in or under
the laws of the United States or any political subdivision thereof
and whose office most directly involved in the purchase is located
in the United States (including any such entity constituting an
investment adviser acting with discretionary authority for a non-
U.S. Person);
subject to the following exceptions:
(a) sales by offices of Xxxxxxx, Sachs & Co. acting as agent for GSI, and
(b) with the prior written approval of GSI, sales by a foreign branch of a
U.S. Underwriter acting on behalf of an affiliated International
Underwriter.
INTERNATIONAL UNDERWRITERS (AS SET FORTH IN SECTION 3(A) OF THE SELLING
AGREEMENTS AND REFERRED TO IN SECTION 4 OF THE INTERNATIONAL AAU):
International Underwriters may sell only outside the United States to non-U.S.
Persons (including any such entity constituting an investment adviser located
outside the United States acting with discretionary authority for a U.S.
Person).
5
