Exhibit 2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER dated as of February 29, 2000 (the
"Merger Agreement"), between LEXMARK INTERNATIONAL GROUP, INC., a Delaware
corporation (the "Company") and LEXMARK INTERNATIONAL, INC., a Delaware
corporation and a wholly-owned subsidiary of the Company ("Surviving
Corporation").
WHEREAS, the Third Restated Certificate of Incorporation of the
Company, as amended, as of the date hereof, authorizes the Company to issue an
aggregate of 461,600,000 shares of stock, consisting of 450,000,000 shares of
Class A Common Stock, par value $.01 per share ("Company Class A Common Stock"),
10,000,000 shares of Class B Common Stock, par value $.01 per share ("Company
Class B Common Stock"), and 1,600,000 shares of Preferred Stock, par value $.01
per share ("Company Preferred Stock");
WHEREAS, as of the date hereof, there are outstanding approximately 129
million shares of Company Class A Common Stock;
WHEREAS, as of the date hereof, the Surviving Corporation is authorized
to issue 1,000 shares of common stock, $1 par value per share, of which 200
shares are issued and outstanding;
WHEREAS, the Certificate of Incorporation of the Surviving Corporation
will be amended immediately prior to the Effective Time of the Merger to provide
that the Surviving Corporation is authorized to issue an aggregate of
461,600,000 shares of stock, consisting of 450,000,000 shares of Class A Common
Stock, par value $.01 per share, ("Surviving Corporation Class A Common Stock"),
10,000,000 shares of Class B Common Stock, par value $.01 per share ("Surviving
Corporation Class B Common Stock"), and 1,600,000 shares of Preferred Stock, par
value $.01 per share ("Surviving Corporation Preferred Stock"), or such other
amount of stock and in such proportions by type and class as is set forth in the
Certificate of Incorporation of the Company immediately prior to the Effective
Time; and
WHEREAS, the Boards of Directors of the Company and the Surviving
Corporation deem it advisable and in the best interests of the respective
corporations that the Company be merged with and into Surviving Corporation (the
"Merger").
NOW, THEREFORE, the parties hereto hereby agree as follows
ARTICLE I
MERGER
1.1 Merger. Subject to the terms and conditions of this Merger
Agreement, at the Effective Time the Company shall be merged with and into
Surviving Corporation in accordance with the General Corporation Law of the
State of Delaware. The separate existence of the Company shall cease and
Surviving Corporation as the surviving corporation shall continue its corporate
existence under the laws of the State of Delaware. Surviving Corporation shall
succeed, insofar as provided by law, to all rights, assets, liabilities and
obligations of the Company in accordance with the General Corporation Law of the
State of Delaware.
1.2 Effective Time. Subject to the approval of the Merger by the
requisite vote of the stockholders of the Company, the Merger shall become
effective as of the filing of the Certificate of Ownership and Merger with the
Secretary of State of the State of Delaware, as required by the General
Corporation Law of the State of Delaware (the "Effective Time").
ARTICLE II
NAME, CERTIFICATE OF INCORPORATION, BY-LAWS AND DIRECTORS AND
OFFICERS OF THE SURVIVING CORPORATION
2.1 Name. The name of the Surviving Corporation shall remain
"Lexmark International, Inc." following the Merger.
2.2 Certificate of Incorporation. The Certificate of Incorporation of
the Surviving Corporation as amended and in effect at the Effective Time, shall
be the Certificate of Incorporation of the Surviving Corporation until further
amended in accordance with the provisions thereof and applicable laws. Such
Certificate of Incorporation shall be identical to the Third Restated
Certificate of Incorporation, as amended, of the Company as in effect
immediately prior to the Effective Time.
2.3 By-Laws. The By-Laws of the Surviving Corporation shall be
identical to the By-Laws of the Company in existence and in effect immediately
prior to the Effective Time.
2.4 Directors and Officers. The directors and officers of the Company
immediately prior to the Effective Time shall be the directors and officers,
respectively, of the Surviving Corporation until expiration of the current terms
as such, or prior resignation, death or removal. The directors of the Surviving
Corporation shall be in the same classes and shall have the same terms of office
as those of the Company.
ARTICLE III
CONVERSION AND EXCHANGE OF SECURITIES
3.1 Conversion. At the Effective Time, each of the following
transactions shall be deemed to occur simultaneously:
(a) Each share of the Company Class A Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into and become one fully paid and nonassessable
share of Surviving Corporation Class A Common Stock;
(b) Each share of the Company Class B Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into and become one fully paid and nonassessable
share of Surviving Corporation Class B Common Stock;
(c) Each share of the Company Preferred Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into and become one fully paid and nonassessable
share of Surviving Corporation Preferred Stock;
(d) Each option to purchase shares of Company Class A Common
Stock outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become an option to purchase, upon the
same terms and conditions, the number of shares of Surviving
Corporation Class A Common Stock which is equal to the number of
shares of Company Class A Common Stock which the optionee would have
received had he or she exercised his or her option in full immediately
prior to the Effective Time (whether or not such option was then
exercisable). The exercise price per share of Surviving Corporation
Class A Common Stock under each of said options shall be equal to the
exercise price per share of Company Class A Common Stock immediately
prior to the Effective Time.
(e) Each option to purchase shares of Company Class B Common
Stock outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become an option to purchase, upon the
same terms and conditions, the number of shares of Surviving
Corporation Class B Common Stock which is equal to the number of
shares of Company Class B Common Stock which the optionee would have
received had he or she exercised his or her option in full immediately
prior to the Effective Time (whether or not such option was then
exercisable). The exercise price per share of Surviving Corporation
Class B Common Stock under each of said options shall be equal to the
exercise price per share of Company Class B Common Stock immediately
prior to the Effective Time.
(f) Each option to purchase shares of Company Preferred Stock
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into and become an option to purchase, upon the
same terms and conditions, the number of shares of Surviving
Corporation Preferred Stock which is equal to the number of shares of
Company Preferred Stock which the optionee would have received had he
or she exercised his or her option in full immediately prior to the
Effective Time (whether or not such option was then exercisable). The
exercise price per share of Surviving Corporation Preferred Stock
under each of said options shall be equal to the exercise price per
share of Company Preferred Stock immediately prior to the Effective
Time.
(g) Each restricted stock unit, deferred stock unit, stock
appreciation right, put, call or any other right, with respect to
shares of Company Class A Common Stock, Company Class B Common Stock,
or Company Preferred Stock, outstanding immediately prior to the
Effective Time, shall be converted into a restricted stock unit,
deferred stock unit, stock appreciation right, put, call or other
right with respect to shares of Surviving Corporation Class A Common
Stock, Surviving Corporation Class B Common Stock, or Surviving
Corporation Preferred Stock, respectively, giving each holder the same
rights, with respect to the same number of shares of such stock of the
Surviving Corporation, as such holder had with respect to the stock of
the Company under such outstanding restricted stock unit, deferred
stock unit, stock appreciation right, put, call or other right. All
obligations in respect of such outstanding restricted stock units,
deferred stock units, stock appreciation rights, puts, calls or other
rights shall, as of the Effective Time, be assumed by the Surviving
Corporation including, but not limited to, the Company's Stockholder
Rights Plan adopted by the Company on February 18, 1998 and amended
and restated on February 11, 1999.
3.2 Exchange.
(a) Immediately after the Effective Time, each certificate
theretofore representing issued and outstanding shares of Company
Class A Common Stock, Company Class B Common Stock or Company
Preferred Stock shall represent the same number of shares of Surviving
Corporation Class A Common Stock, Surviving Corporation Class B Common
Stock or Surviving Corporation Preferred Stock, respectively.
(b) At and after the Effective Time, all of the outstanding
certificates which immediately prior to the Effective Time represented
shares of Company Class A Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent shares of,
Surviving Corporation Class A Common Stock into which the shares of
Company Class A Common Stock formerly represented by such certificates
have been converted as herein provided. At and after the Effective
Time, all of the outstanding certificates which immediately prior to
the Effective Time represented shares of Company Class B Common Stock
shall be deemed for all purposes to evidence ownership of, and to
represent shares of, Surviving Corporation Class B Common Stock into
which the shares of Company Class B Common Stock formerly represented
by such certificates have been converted as herein provided. At and
after the Effective Time, all of the outstanding certificates which
immediately prior to the Effective Time represented shares of Company
Preferred Stock shall be deemed for all purposes to evidence ownership
of, and to represent shares of, Surviving Corporation Preferred Stock
into which the shares of Company Preferred Stock formerly represented
by such certificates have been converted as herein provided. The
registered owner on the books and records of the Company or its
transfer agents of any such outstanding stock certificates shall,
until such certificate shall have been surrendered for transfer or
otherwise accounted for to the Surviving Corporation or its transfer
agents, have and be entitled to exercise any voting and other rights
with respect to and to receive any dividends and other distributions
upon the shares of Surviving Corporation Class A Common Stock,
Surviving Corporation Class B Common Stock and Surviving Corporation
Preferred Stock evidenced by such outstanding certificate as above
provided.
ARTICLE IV
SPECIFIC UNDERTAKINGS
4.1 Stock Incentive Plans. Effective as of the Effective Time,
Surviving Corporation shall assume all of the rights and obligations of the
Company under the Lexmark Holding, Inc. Employee Stock Option Plan, the Lexmark
Holding, Inc. Stock Option Plan for Senior Managers, the Lexmark Holding, Inc.
Stock Option Plan for Executives and Senior Officers, the Lexmark International
Group, Inc. Stock Incentive Plan, and the Lexmark International Group, Inc.
Nonemployee Director Stock Plan as each of said plans may then be in effect, and
the parties hereto shall each take such action as may be necessary to (i) enable
each holder of an option or other right to acquire shares of Company Class A
Common Stock, Class B Common Stock and Preferred Stock under any such plans to
become entitled, at and after the Effective Time, to exercise such option or
right, subject to the terms and provisions thereof, as to that number of shares
of Surviving Corporation Class A Common Stock, Surviving Corporation Class B
Common Stock and Surviving Corporation Preferred Stock which such holder would
have been entitled to receive had such holder exercised such option or other
right and thereby received shares of Company Class A Common Stock, Company Class
B Common Stock and Company Preferred Stock immediately prior to the Effective
Time and (ii) amend those provisions of the employee incentive compensation and
benefit plans and programs referred to above which vest administrative functions
in the Company and its officers and directors so as to vest such functions in
the Surviving Corporation and its officers and directors. As of the Effective
Time, Surviving Corporation shall reserve shares of its authorized but unissued
Surviving Corporation Class A Common Stock which may be required for future
issuance under the provisions of each such plan or agreement in number equal to
the number of shares of Company Class A Common Stock which were reserved by the
Company for purposes of such plan or agreement immediately prior to the
Effective Time.
4.2 Other Employee Benefit Plans. From and after the Effective Time,
each employee benefit plan to which the Company is then a party (other than the
plans covered by section 4.1) shall continue to be the plan of the Surviving
Corporation and to the extent that such employee benefit plans include the right
to acquire, own or dispose of the stock of the Company, the parties hereto shall
each take such action as may be necessary to enable each holder of such rights
to exercise such rights to acquire, own or dispose of the same type and class of
stock of the Surviving Corporation.
4.3 Employment Agreements. As of the Effective Time, the Surviving
Corporation shall assume all obligations of the Company pursuant to all
employment agreements with the Company in effect as of the Effective Time.
ARTICLE V
GENERAL
5.1 Stockholder Approval. Subsequent to its execution, the Company
shall submit the Merger as provided for in this Merger Agreement to its
stockholders for their approval pursuant to the applicable provisions of the
General Corporation Law of the State of Delaware.
5.2 Conditions to Merger. The Merger is subject to the following
conditions:
(a) Approval of the Merger as provided for in this Merger
Agreement by the holders of a majority of the outstanding shares of
the Company's Class A Common Stock;
(b) Approval for listing on the New York Stock Exchange of the
Surviving Corporation's Class A Common Stock to be
issued in the Merger;
(c) The determination by the Chairman and Chief Executive
Officer of the Company that the Merger is in the best interests of
the Company;
(d) Absence of an injunction or pending litigation relating to
the Merger; and
(e) Receipt of all consents, approvals and authorizations
required to be obtained prior to the consummation of the Merger.
5.3 Amendment. This Merger Agreement may be amended at any time prior
to the Effective Time with the mutual consent of the parties hereto, both before
and after it has been adopted by the stockholders of the Company, in any manner
which, in the judgment of the parties hereto, would not have a material adverse
effect on the rights of such stockholders.
5.4 Termination and Abandonment. At any time prior to the consummation
of the Merger, this Merger Agreement may be terminated and the Merger abandoned
by the Chairman and Chief Executive Officer of the Company or the Chairman and
Chief Executive Officer of the Surviving Corporation.
5.5 Governing Law. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
5.6 Counterparts. This Merger Agreement may be executed in one or more
counterparts each of which shall be deemed to be an original and all of which
taken together shall constitute one instrument.
5.7 Waiver. At any time prior to the Effective Time, the parties hereto
may (i) extend the time for the performance of any of the obligations or other
acts of the parties hereto, (ii) waive any inaccuracy in the statements
contained in this Merger Agreement or in any document delivered pursuant to this
Merger Agreement, or (iii) waive compliance with any of the covenants,
conditions or agreements contained in this Merger Agreement, or any document
delivered pursuant to this Merger Agreement, provided that such action would not
have a material adverse effect on the rights of the stockholders of the Company.
IN WITNESS WHEREOF each of the parties hereto has caused this Merger
Agreement to be executed on its behalf and attested by its officers hereunto
duly authorized, all as of the date and year first above written.
LEXMARK INTERNATIONAL GROUP, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
Attest:
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Secretary
LEXMARK INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
Attest:
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Secretary
