1
Exhibit 1.1
$[ ]
LEXMARK INTERNATIONAL, INC.
[ ]% Debt Securities due [ ]
Underwriting Agreement
[ ], 2001
[ ]
[ ]
c/o [ ]
[ ]
Ladies and Gentlemen:
Lexmark International, Inc., a Delaware corporation (the "Issuer"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), $[ ] principal amount of its [ ]% Debt Securities due [ ]
(the "Securities"). The Securities will be issued pursuant to the provisions of
an Indenture (the "Indenture") to be dated as of [ ], 2001 between the Issuer
and The Bank of New York, as Trustee (the "Trustee").
The Issuer has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (file number [ ]) on Form S-3, relating to certain debt securities,
including the Securities (the "Shelf Securities"), to be issued from time to
time by the Issuer. [The Issuer has filed, as part of the registration statement
(as originally filed or as part of any amendment thereto), a preliminary
prospectus supplement specifically relating to the Securities.] The Issuer also
has filed, or will file, with the Commission pursuant to Rule 424(b) under the
Securities Act, a prospectus supplement specifically relating to the Securities.
The registration statement as amended to the date of this Agreement is
hereinafter referred to as the "Registration
2
Statement" and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"Basic Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus".
If the Issuer has filed an abbreviated registration statement pursuant to Rule
462(b) under the Securities Act (the "Rule 462 Registration Statement"), then
any reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration Statement. Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission (as
part of the Registration Statement or pursuant to Rule 424) 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 Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"), on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein.
The Issuer hereby agrees with the Underwriters as follows:
1. The Issuer agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Issuer the respective principal amount of Securities set forth opposite
such Underwriter's name in Schedule I hereto at a price equal to [ ] % of their
principal amount (reflecting an underwriting discount of [ ]% as compensation to
the Underwriters for their commitments hereunder) plus accrued interest, if any,
from [ ] to the date of payment and delivery.
2. The Issuer understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Securities as soon after (A)
the Registration Statement (or, if applicable, any post-effective amendment) has
become effective and (B) the parties hereto have executed and delivered this
Agreement, as in the judgment of the Representatives is advisable, and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
2
3
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Issuer to the
Representatives not later than [ ], or at such other time on the same or such
other date, not later than the third Business Day thereafter, as the
Representatives and the Issuer may agree upon in writing. The time and date of
such payment is referred to herein as the "Closing Date". As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City.
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes
(collectively, the "Global Note") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Securities duly paid by the Issuer. The Global Note will be made available for
inspection by the Representatives at the office of the Trustee, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than [1:00] P.M., New York City time,
on the Business Day prior to the Closing Date.
4. The Issuer represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, 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 that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Issuer in writing by such Underwriter
through the Representatives expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Issuer, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Issuer shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"), the Registration Statement and any amendment thereto, as of the
3
4
applicable effective date, did not or 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, and the Prospectus,
as amended or supplemented, if applicable, as of the date of the Prospectus, as
of the date of any amendment or supplement thereto and as of the Closing Date,
did not and will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Issuer in writing by such Underwriter through the
Representatives expressly for use therein;
(c) 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 Securities Act or
the Exchange Act, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the
Exchange Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(d) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Issuer and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; and said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
(e) neither the Issuer 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
4
5
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 Issuer and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; 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 including the tax benefit related to stock options) or
increase in the long-term debt of the Issuer or any of its subsidiaries in
excess of $50,000,000 (other than working capital borrowings classified as long
term debt in an amount not exceeding $150,000,000), or any material adverse
change, or any prospective material adverse change, in or affecting the general
affairs, financial position, stockholders' equity or consolidated results of
operations of the Issuer and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Issuer nor any of its subsidiaries
has entered into any transaction or agreement (whether or not in the ordinary
course of business) material to the Issuer and its subsidiaries, taken as a
whole;
(f) each of the Issuer and Lexmark International Technology S.A.
("LexTech") has been duly incorporated and is validly existing as a corporation,
in good standing under the laws of its jurisdiction of incorporation, 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, other than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the Issuer and its subsidiaries, taken as a whole;
(g) the Issuer has an authorized capitalization as described in the
Prospectus, and, except as otherwise described in the Prospectus, all of the
outstanding shares of capital stock of the Issuer have been duly authorized and
validly issued and are fully paid and non-assessable; all of the outstanding
shares of capital stock of LexTech have been duly authorized and validly issued,
are fully paid and non-assessable and (except for directors' qualifying shares)
are owned directly or indirectly by the Issuer, free and clear of all liens,
encumbrances, security interests and claims;
(h) this Agreement has been duly authorized, executed and delivered by
the Issuer;
5
6
(i) the Securities have been duly authorized, and when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Issuer, entitled to the benefits provided by the Indenture
and enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (including, without limitation, the availability of specific
performance, injunctive relief and other equitable remedies); the Indenture has
been duly authorized and upon effectiveness of the Registration Statement will
have been duly qualified under the Trust Indenture Act and, when executed and
delivered by the Issuer and the Trustee, the Indenture will constitute a valid
and binding instrument enforceable against the Issuer in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles (including, without
limitation, the availability of specific performance, injunctive relief and
other equitable remedies); and the Securities and the Indenture will conform to
the descriptions thereof in the Prospectus;
(j) neither the Issuer nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws (or other
organizational documents) or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer or any of its
subsidiaries is a party or by which it or any of them or any of their respective
properties is bound, except (other than, in the case of the Issuer, with respect
to its Certificate of Incorporation and By-laws) for violations and defaults
which individually and in the aggregate are not material to the Issuer and its
subsidiaries, taken as a whole; the issue and sale by the Issuer of the
Securities and the performance by the Issuer of all its obligations under the
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach 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 Issuer or any of its subsidiaries is a party or by which
the Issuer or any of its subsidiaries is bound or to which any of the property
or assets of the Issuer or any of its subsidiaries is subject except for any
such breach, conflict or default which is not material to the Issuer and its
subsidiaries, taken as a whole; nor will any such action result in any violation
of the provisions of the Certificate of Incorporation or the By-Laws of the
Issuer or any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Issuer, its
subsidiaries or any of their respective properties except such violations of
law, statute or any order, rule or regulation which are not material to the
Issuer and its subsidiaries, taken as a whole; and
6
7
no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Issuer of the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and the Trust
Indenture Act or state securities or Blue Sky laws;
(k) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Issuer, threatened against or affecting the
Issuer or any of its subsidiaries or any of their respective properties or to
which the Issuer or any of its subsidiaries is or may be a party or to which any
property of the Issuer or any of its subsidiaries is or may be the subject
which, if determined adversely to the Issuer or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to have, a
material adverse effect on the general affairs, financial position,
stockholders' equity or consolidated results of operations of the Issuer and its
subsidiaries, taken as a whole, and, to the best of the Issuer's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(l) to the best knowledge of the Issuer, PricewaterhouseCoopers LLP,
who have certified certain financial statements of the Issuer and its
subsidiaries, are independent public accountants as required by the Securities
Act;
(m) the Issuer and LexTech have good and marketable title in fee simple
to all items of real property (including, without limitation, all such
properties described as owned under the caption "Item 2: Properties" in the
Issuer's Annual Report on Form 10-K for the fiscal year ended December 31, 2000
(the "10-K") incorporated by reference in the Prospectus) and good and
marketable 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 or
referred to in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made or proposed to be made of
such property by the Issuer and LexTech, and any real property and buildings
held under lease by the Issuer and LexTech (including, without limitation, all
such properties and buildings described as leased under the caption "Item 2:
Properties" in the 10-K incorporated by reference in the Prospectus) are held by
them under valid, existing and enforceable leases with such exceptions as are
not material and do not interfere with the
7
8
use made or proposed to be made of such property and buildings by the Issuer and
LexTech;
(n) no relationship, direct or indirect, exists between or among the
Issuer or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Issuer or any of its subsidiaries on
the other hand, which is required by the Securities Act to be described in the
Registration Statement and the Prospectus and is not so described;
(o) the Issuer is not and, after giving effect to the offering and sale
of the Securities, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(p) except as disclosed in the Prospectus, the Issuer 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 on the general affairs, financial position, stockholders' equity or
consolidated results of operations of the Issuer and its subsidiaries, taken as
a whole; to the best knowledge of the Issuer, none of the technology employed by
the Issuer or its subsidiaries has been obtained or is being used by the Issuer
or its subsidiaries in violation of any contractual or fiduciary obligation
binding on the Issuer, 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 on the
general affairs, financial position, stockholders' equity or consolidated
results of operations of the Issuer and its subsidiaries, taken as a whole;
except as disclosed in the Prospectus, neither the Issuer 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 Issuer 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 on the general
affairs, financial position, stockholders' equity or consolidated results of
operations of the Issuer and its subsidiaries, taken as a whole; and
8
9
(q) Neither the Issuer nor its subsidiaries have experienced an ERISA
Event (as defined below) which individually, or taken together with all other
ERISA Events, could reasonably be expected to have a material adverse effect on
the general affairs, financial position, stockholders' equity or consolidated
results of operations of the Issuer and its subsidiaries, taken as a whole. For
the purposes of this paragraph (q), "ERISA EVENT" means (i) any "reportable
event" as defined in Section 4043 of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA") with respect to any employee pension benefit plan (other
than a multiemployer plan as defined in Section 4001(a)(3) of ERISA
("Multiemployer Plan")) subject to the provisions of Title IV of ERISA or
Section 412 of the Internal Revenue Code of 1986, as amended (the "Code") or
Section 302 of ERISA, and in respect of which the Issuer or any of its
subsidiaries is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA
(collectively, a "Plan") (other than an event for which the 30-day notice period
is waived); (ii) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (iii) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (iv) the incurrence by the
Issuer or any of its subsidiaries of any liability under Title IV of ERISA with
respect to the termination of any Plan; (v) the receipt by the Issuer or any of
its subsidiaries from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (vi) the incurrence by the Issuer or any of its
subsidiaries of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the
Issuer or any of its subsidiaries of any notice, or the receipt by any
Multiemployer Plan from the Issuer or any of its subsidiaries of any notice,
concerning the imposition of any liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
5. The Issuer covenants and agrees with each of the several
Underwriters as follows:
(a) (i) to prepare the 462(b) Registration Statement, if necessary, in
a form approved by the Representatives and to file such 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) under the
Securities Act by 10:00 a.m. New York City time on the business day following
the date of determination of the public offering price and, at the time of
filing, either to pay the Commission the filing fee for the
9
10
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Securities Act; (ii) to
file the Prospectus in a form approved by the Representatives pursuant to Rule
424 under the Securities Act not later than the Commission's close of business
on the second Business Day following the date of determination of the offering
price of the Securities or, if applicable, such earlier time as may be required
by Rule 424(b) and (iii) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Issuer 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 Securities; and to
furnish copies of the Prospectus to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the Business Day next succeeding the date of
this Agreement in such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Issuer, to the Representatives,
four signed copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and documents incorporated by
reference therein, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case without exhibits but including the documents incorporated by reference
therein and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective, (ii) when any supplement to the Prospectus or any
amendment to the Prospectus has been filed and to furnish the Representatives
with copies thereof, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or the
Prospectus or the initiation or threatening of any proceeding for that purpose,
(v) of the occurrence of any event, within the period referenced in paragraph
(e) below, as a result of which the Prospectus as then amended or supplemented
would include an untrue
10
11
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 in
existence at the time the Prospectus is delivered to a purchaser, not
misleading, and (vi) of the receipt by the Issuer of any notification with
respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such qualification
of the Securities, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Securities, in the opinion of counsel for the Underwriters, a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances in existence
at the time the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law, forthwith
to prepare and furnish, at the expense of the Issuer, to the Underwriters and to
the dealers (whose names and addresses the Representatives will furnish to the
Issuer) to which Securities may have been sold by the Representatives on behalf
of the Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances in existence at the time the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; PROVIDED that the Issuer
shall not be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable, an earnings statement which will satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Issuer commencing after the
"effective date" (as defined in Rule 158) of the Registration Statement;
(h) for three years following the Closing Date, to furnish to the
Representatives copies of all reports or other communications (financial or
other) furnished to holders of
11
12
the Securities, and copies of any publicly available reports and financial
statements furnished to or filed with the Commission or any national securities
exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer, sell,
contract to sell, or otherwise dispose of any debt securities of or guaranteed
by the Issuer which are substantially similar to the Securities;
(j) in connection with the offering of the Securities, until [ ] on
behalf of the Underwriters shall have notified the Issuer of the completion of
the distribution of the Securities, not to, and to cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to, either
alone or with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest, any
Securities, or attempt to induce any person to purchase any Securities; and not
to, and to cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising the
price of the Securities;
(k) to use the net proceeds received by the Issuer from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds"; and
(l) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel for
the Underwriters and their disbursements), (iv) related to any filing with the
National Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental Blue Sky Memoranda
and any Legal Investment Survey and the furnishing to Underwriters and dealers
of copies of the Registration Statement and the Prospectus, including mailing
and shipping, as herein provided, and (vi) payable to rating agencies in
connection with the rating of the Securities.
12
13
6. The several obligations of the Underwriters hereunder to purchase
the Securities on the Closing Date are subject to the performance by the Issuer
of its obligations hereunder and to the following additional conditions:
(a) the Registration Statement and any post-effective amendment have
become effective; and no stop order suspending the effectiveness of the
Registration Statement or any post-affective amendment shall be in effect, and
no proceedings for such purpose shall be pending before or threatened by the
Commission; 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 Securities Act and in accordance with Section
5(a) hereof; and all requests for additional information by the Commission shall
have been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Issuer contained herein
are true and correct on and as of the Closing Date as if made on and as of the
Closing Date and the Issuer shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any downgrading, (ii) any intended or
potential downgrading, or (iii) any review or possible change that does not
indicate an improvement, in the rating accorded to any securities of or
guaranteed by the Issuer by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(d) 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 including the tax benefit related to stock options) or
increase in the long-term debt of the Issuer or any of its subsidiaries in
excess of $50,000,000 (other than working capital borrowings classified as
long-term debt in an amount not exceeding $150,000,000), or any material adverse
change, or prospective material adverse change, in or affecting the general
affairs, financial position, stockholders' equity or consolidated results of
operations of the Issuer and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the Closing Date
on the terms and in the manner contemplated in the Prospectus; and neither the
Issuer nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated
13
14
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, in excess of any
applicable insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Issuer, with specific
knowledge about the Issuer's financial matters, satisfactory to the
Representatives to the effect set forth in subsections (a) through (c) (with
respect to the respective representations, warranties, agreements and conditions
of the Issuer) of this Section and to the further effect that there has not
occurred any material adverse change or any prospective material adverse change,
in or affecting the general affairs, financial position, stockholders' equity or
consolidated results of operations of the Issuer and its subsidiaries, taken as
a whole, from that set forth or contemplated in the Registration Statement;
(f) Xxxxxxx X. Xxxx, Esq., General Counsel for the Issuer, shall have
furnished to the Representatives his written opinion, dated the Closing Date, in
form and substance satisfactory to the Representatives, to the effect that:
(i) the Issuer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus or the 10-K incorporated by reference therein;
(ii) the Issuer 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, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Issuer
and its subsidiaries, taken as a whole;
(iii) the Issuer has an authorized capitalization as described
in the Prospectus, and, except as otherwise described in the
Prospectus, all of the outstanding shares of capital stock of the
Issuer have been duly authorized and validly issued and are fully paid
and non-assessable; all of the outstanding shares of capital stock of
LexTech have been duly authorized and validly issued, are fully paid
and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Issuer, free and clear of all
liens, encumbrances, security interests and claims;
14
15
(iv) to the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus or the 10-K incorporated by
reference therein, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such counsel's
knowledge, threatened against the Issuer or any of its subsidiaries or
any of their respective properties or to which the Issuer or any of its
subsidiaries is or may be a party or to which any property of the
Issuer or its subsidiaries is or may be the subject which, if
determined adversely to the Issuer or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a material adverse effect on the general affairs, financial
position, stockholders' equity or consolidated results of operations of
the Issuer and its subsidiaries, taken as a whole; to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and such counsel
does not know of any statutes, regulations, contracts or other
documents required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Issuer;
(vi) the Securities have been duly authorized, executed and
delivered by the Issuer and, when they have been duly authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of this Agreement,
will constitute valid and binding obligations of the Issuer entitled to
the benefits provided by the Indenture and enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (including, without limitation, the availability of
specific performance, injunctive relief and other equitable remedies);
and the Securities and the Indenture conform to the descriptions
thereof in the Prospectus;
(vii) the Indenture has been duly authorized, executed and
delivered by the Issuer and (assuming the due authorization, execution
and delivery thereof by the Trustee pursuant thereto) constitutes a
valid and binding instrument of the Issuer enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (including, without limitation, the availability of specific
performance,
15
16
injunctive relief and other equitable remedies); and the Indenture has
been duly qualified under the Trust Indenture Act;
(viii) neither the Issuer nor any of its subsidiaries is in
violation of or in default under, its Certificate of Incorporation or
By-Laws (or other organizational documents) or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Issuer or any of its subsidiaries is a party
or by which it or any of them or any of their respective properties is
bound, except (other than, in the case of the Issuer, with respect to
its Certificate of Incorporation and By-Laws) for violations and
defaults which individually and in the aggregate are not material to
the Issuer and its subsidiaries, taken as a whole; the issue and sale
by the Issuer of the Securities and the performance by the Issuer of
all of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach 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 Issuer or any of its
subsidiaries is a party or by which the Issuer or any of its
subsidiaries is bound or to which any of the property or assets of the
Issuer or any of its subsidiaries is subject, except for violations or
defaults which individually or in the aggregate are not material to the
Issuer and its subsidiaries, taken as a whole, nor will any such action
result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Issuer or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Issuer, its subsidiaries or
any of their respective properties;
(ix) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Issuer of the other transactions contemplated
by this Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture Act
or state securities or Blue Sky laws;
(x) the statements in the Prospectus under "Description of
Debt Securities", in the Prospectus incorporated by reference from Item
3 of Part 1 of the 10-K and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to
16
17
therein, fairly present the information called for with respect to such
legal matters, documents or proceedings;
(xi) the Issuer is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the Investment Company Act;
(xii) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements thereto
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and believes that (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion and other than that part of the Registration
Statement which constitutes the Form T-1 of the Trustee under the Trust
Indenture Act) the Registration Statement and any amendment thereto, if
applicable, at the time it became effective did not contain any 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, and that the Prospectus, as amended or supplemented, if
applicable, as of its date did not, and as of the Closing Date does
not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(xiii) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the
Issuer prior to the Closing Date (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 Securities Act or the Exchange Act, as
applicable; 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 Securities 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
17
18
(xiv) to the best of such counsel's knowledge, other than as
set forth in the Prospectus or in the 10-K: (A) the Issuer has not
received notice of any claim of infringement or violation of or
conflict with rights or claims of others with respect to any
Intellectual Property owned, licensed or used by the Issuer 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 on the Issuer and its subsidiaries, taken as a
whole; and (B) such counsel is not aware of any research or licensing
agreements, royalty arrangements or Intellectual Property of others
which are infringed by the Issuer'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 on the Issuer and its
subsidiaries, taken as a whole.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Delaware and New York, to the extent such counsel deems proper and
to the extent specified in such opinion, if at all, upon an opinion or opinions
(in form and substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel, familiar with
the applicable laws; and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Issuer and
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Issuer. The opinion of such counsel for the Issuer shall state that the opinion
of any such other counsel upon which he relied is in form satisfactory to such
counsel and, in such counsel's opinion, he and the Underwriters are justified in
relying thereon. With respect to the matters to be covered in subparagraph (xii)
above, counsel may state that his opinion and belief is based upon his
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto but is without independent
check or verification except as specified.
(g) the opinion of Xxxxxxx X. Xxxx, Esq. described above shall be
rendered to the Underwriters at the request of the Issuer and shall so state
therein;
(h) on the date of this Agreement and also on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
18
19
(i) the Representatives shall have received on and as of the Closing
Date an opinion of Xxxxxxxx & Xxxxxxxx, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters; and
(j) on or prior to the Closing Date the Issuer shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Issuer agrees to indemnify and hold harmless each Underwriter,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Issuer
in writing by such Underwriter through the Representatives expressly for use
therein and PROVIDED, FURTHER, that the Issuer shall not be liable to any
Underwriter under the indemnity agreement in this paragraph 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
Securities 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 Securities Act, if the Issuer
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 a preliminary prospectus
and corrected in the Prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, its directors, its officers who sign the Registration
Statement and each person who controls the Issuer within the meaning of Section
15 of the Securities Act and Section
19
20
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Issuer to each Underwriter, but only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any information furnished to the Issuer in writing
by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person may and, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and such control persons of Underwriters shall be
designated in writing by [ ] and any such separate firm for the Issuer, its
directors, its officers who sign the Registration Statement and such control
persons of the Issuer shall be designated in writing by the Issuer. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the first sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement
20
21
of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuer on the one hand
and the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
(before deducting expenses) received by the Issuer and the total underwriting
discounts and the commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Securities. The relative fault of the Issuer 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 Issuer or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Issuer and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person
21
22
as a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Issuer set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Issuer, its officers or directors or any other person controlling the
Issuer, and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Issuer, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the following, namely the New York
Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Issuer shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Representatives, is
material and adverse and which, in the reasonable judgment of the
22
23
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto or (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-tenth of such principal amount of
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Securities
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, and arrangements satisfactory to the Representatives
and the Issuer for the purchase of such Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Issuer. In any such case either the
Representatives or the Issuer shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, except for any termination pursuant to Section 8(i), (iii) or (iv)
herein, because of any failure or refusal on the part of the Issuer to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Issuer shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot
23
24
be fulfilled, the Issuer agrees to reimburse the Underwriters or such
Underwriters who have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Issuer, the Underwriters, each affiliate of any Underwriter which assists
such Underwriter in the distribution of the Securities, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by [ ] alone on behalf of the Underwriters, and any
such action taken by the Representatives jointly or by [ ] alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives c/o [ ], [ ], (telefax:
[ ]); Attention: Syndicate Department. Notices to the Issuer shall be given
to it at One Lexmark Centre Drive, 000 Xxxx Xxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000, (telefax: 859-232-3128); Attention: Xxxxxxx X. Xxxx, Esq.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
LEXMARK INTERNATIONAL, INC.
24
25
By:
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted: , 2001
----------------
[ ]
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: [ ]
By:
------------------------------
Title:
25
26
SCHEDULE I
Principal Amount of
Securities to be
Underwriter Purchased
----------- ---------
[ ]................................................................. $ [ ]
[ ]................................................................. $ [ ]
[ ]................................................................. $ [ ]
=================
Total..................................... $ [ ]
26
