EXHIBIT 1.1
Lexmark International Group, Inc.
Class A Common Stock
(par value $.01 per share)
Underwriting Agreement
(U.S. Version)
, 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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 ▇▇▇▇▇▇▇ Sachs International,
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited 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
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or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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 ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein or by a Selling
Stock holder 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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
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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 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 "Business -Properties" 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 "Business
- Properties" 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[, provided that with respect to (a) the Shares to be sold by
Keys Foundation, a Netherland Antilles foundation ("Keys Foundation"),
in connection with the sale of Optional Shares to the Underwriters,
such Shares (the "Optional Warrant Shares") shall, upon issuance,
delivery and payment therefor in the manner described in Warrant No. 6,
dated February 21, 1997 (the "Keys Warrant"), issued by the Company to
Keys Foundation, be duly and validly authorized and issued, fully paid
and non-assessable, and (b) ........ Firm Shares to be sold by Keys
Foundation, such Shares (the "Additional Keys Shares") shall, upon
issuance, delivery and payment therefore in the manner as described in
the Keys Warrant, be duly and validly authorized and issued, fully paid
and non-assessable]; 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,
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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 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 Prospectus under the caption
"Description of Capital Stock", 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
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the best knowledge of the Company, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(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) Neither the Company nor any of its subsidiaries, or, to the
Company's knowledge, any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(xvii) To the best knowledge of the Company, Coopers & ▇▇▇▇▇▇▇
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
(xviii) 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,
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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 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[, provided that with respect to (a) the Additional
Keys Shares and the Optional Warrant Shares, Keys Foundation hereby
represents that, upon issuance, delivery and payment therefor in the
manner described in the Keys Warrant, it will have good and valid title
to such Additional Keys Shares and such Optional Warrant Shares, 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 bona fide purchasers for the purposes of the
Code and that such Underwriters' and the International Underwriters'
rights are not limited by subsection (4) of Section 8-302 of the Code);
(v) During the period beginning on the date hereof and continuing
to and including the date 90 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 ▇▇▇▇▇▇▇,
Sachs & 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
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Selling Stockholder, without the prior written consent of ▇▇▇▇▇▇▇,
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
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, 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
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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,
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.
9
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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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 ▇▇▇▇▇▇▇, 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 ............, 1997, or on such other time
and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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 ▇▇▇▇▇▇▇, Sachs & Co. in the written
notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(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 ▇▇▇▇▇▇▇, 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
10
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 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 90 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
11
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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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 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., Washington, 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
12
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,
▇▇▇▇▇▇▇, Sachs & Co. agrees to pay New York State stock transfer tax, and
the Selling Stockholder agrees to reimburse ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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, 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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 & ▇▇▇▇▇▇▇▇, 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;
(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
13
such Time of Delivery) have been duly and validly authorized and issued
and are fully paid and non-assessable[, provided that with respect to
the Optional Warrant Shares, such Shares shall, upon issuance, delivery
and payment therefor in the manner described in the Keys Warrant, be
duly and validly authorized and issued, 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 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 Prospectus under the caption
"Description of Capital Stock", 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;
(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.
14
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 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) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 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
15
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 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
16
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 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 & ▇▇▇▇, 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
17
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 and clear of all liens, encumbrances, equities and
claims (assuming that the Underwriters are without notice of any
adverse claim, as defined in the Code, and are otherwise bona fide
purchasers for the purposes of the Code and that such Underwriters'
rights are not limited by subsection (4) of Section 8-302 of the
Code); and
(v) This Agreement and the International Underwriting Agreement
have been duly executed and delivered by or on behalf of The
▇▇▇▇▇▇▇ & 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 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 & ▇▇▇▇ 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 & ▇▇▇▇ may
rely exclusively on opinions of other counsels for each of the Selling
Stockholders, provided that Ropes & ▇▇▇▇ 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 & ▇▇▇▇ 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 & ▇▇▇▇ 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 & ▇▇▇▇▇▇▇ L.L.P. shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance
18
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 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
19
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 ▇▇▇▇▇▇▇,
Sachs & 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 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
20
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 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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
21
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 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
22
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.
(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
23
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, 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
24
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 ▇▇▇▇▇▇▇, Sachs & 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
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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.
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
25
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.
26
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: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
[ Selling Stockholders ]
By: _____________________________________
Name:
Title: Attorney-In-Fact
As Attorney-in-Fact acting on behalf of
the Selling Stockholders named above.
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: ______________________________
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Underwriters
27
SCHEDULE I
TOTAL NUMBER NUMBER OF OPTIONAL
OF SHARES TO BE
FIRM SHARES PURCHASED IF
TO BE MAXIMUM OPTION
Underwriter PURCHASED EXERCISED
----------- ------------ ----------------
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Total
28
SCHEDULE II
TOTAL NUMBER OF OPTIONAL
NUMBER SHARES TO BE
OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
----------- --------------------
The Selling Stockholders:
___________ __________
Total
============ ==========
(a) This Selling Stockholder is represented by Ropes & ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, and has appointed ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and, as the Attorney-in-Fact for such Selling Stockholder.
(b) This Selling Stockholder is represented by Ropes & ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, and has appointed ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by Prager Dreifuss,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, and has appointed ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, and each
of them, as the Attorneys-in-Fact for such Selling Stockholder.
29
EXHIBIT I
Selling Stockholders
--------------------
Non-Selling Stockholders
------------------------
30
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
