EXHIBIT 1.1
Draft of January 7, 1997
Lexmark International Group, Inc.
Class A Common Stock
(par value $.01 per share)
---------------
Underwriting Agreement
(U.S. Version)
----------------------
________ __, 1997
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxx Xxxxxx Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling Stockholders")
of Lexmark International Group, Inc., a Delaware corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
[ ] shares (the "Firm Shares") and, at the election of the Underwriters,
up to [ ] additional shares (the "Optional Shares") of Class A Common
Stock (par value $.01 per share) ("Stock") of the Company (the Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to Section
2 hereof are herein collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the Selling
Stockholders are concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Selling Stockholders of
up to a total of [ ] shares of Stock (the "International Shares"),
including the overallotment option thereunder, through arrangements with certain
underwriters outside the United States (the "International Underwriters"), for
whom Xxxxxxx Sachs International, Xxxxxxx Xxxxx International and Xxxxxx Xxxxxxx
& Co. International 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;
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provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iv) The Registration Statement conforms, and any further amendments or
supplements to the Registration Statement will conform, in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date of the Registration Statement and any amendment thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Item 7 to Form S-3;
(v) The Prospectus conforms, and any further amendments or supplements to
the Prospectus will conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable filing date of the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Item 7 to Form S-3;
(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. 5, dated November 17, 1995 (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
5
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 & Xxxxxxx L.L.P.,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and
(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,
power and authority to enter into the Power of Attorney and Custody
Agreement and to
6
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 Xxxxxxx, Xxxxx & Co., as representatives of the Underwriters;
(B) sell, pledge, transfer or otherwise dispose of any such securities in
any private transaction exempt from the registration requirements of the
Act unless, prior to the consummation thereof, the person to whom such
securities are sold, pledged, transferred or otherwise disposed of
(including without limitation any affiliate of the Selling Stockholder)
delivers to you a letter signed by such person substantially in the form of
this paragraph; and (C) request registration of any securities of the
Company pursuant to any registration rights that have been granted to the
Selling Stockholder, without the prior written consent of Xxxxxxx, Sachs &
Co., as representatives of the Underwriters;
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(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, 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 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
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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.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) Certificates in definitive form for the Shares to be purchased by
each Underwriter hereunder and in such authorized denominations and registered
in such names as Xxxxxxx, Xxxxx &
9
Co. may request upon at least forty-eight hours' prior notice to the Selling
Stockholders, shall be delivered by or on behalf of the Selling Stockholders to
Xxxxxxx, Sachs & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
same day funds payable to the order of the Custodian, as their interests may
appear. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York City time, on [ ], 1997, or on such other time and date as
Xxxxxxx, Xxxxx & Co. and the Selling Stockholders may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the
date specified by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx,
Xxxxx & Co. of the Underwriters' election to purchase such Optional Shares, or
such other time and date as Xxxxxxx, Sachs & Co. and the Selling Stockholders
may agree upon in writing. Such time and date for delivery of the Firm Shares
is herein called the "First Time of Delivery", such time and date for delivery
of the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf of
the parties hereto pursuant to Section 7 hereof, including the cross-receipt for
the Shares and any additional documents requested by the Underwriters pursuant
to Section 7(k) hereof, will be delivered at the offices of Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the
Shares will be delivered at the Designated Office, or at the Closing Location or
elsewhere in The City of New York, as directed by Xxxxxxx, Sachs & Co. not later
than the New York Business Day before the Time of Delivery, all at each Time of
Delivery. A meeting will be held at the Closing Location at 11:00 a.m., New
York City time, on the New York Business Day next preceding each Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters and, to the extent
provided in Sections 5(a), 5(d), 5(e) and 5(h), each of the Selling Stockholders
(it being understood that you, and not the Selling Stockholders, shall have the
right to consent to the actions referred to therein):
(a) To prepare the Prospectus in a form approved by you; to file the
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or (to
the Company's knowledge) threatening of any proceeding for any such purpose, or
of any request by the Commission for the
10
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 existing on, or upon
the conversion or exchange of convertible or exchangeable securities outstanding
as of, the date of this Agreement), without the prior written consent of
Xxxxxxx, Xxxxx & Co.;
(f) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as
11
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 specifically provided for in this Section; and (b) each Selling
Stockholder will pay or cause to be paid all costs and expenses incurred by such
Selling Stockholder incident to the performance of such Selling Stockholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of any counsel for such Selling
Stockholder in addition to the counsel referred to in clause (a)(viii), and (ii)
all expenses and taxes incident to the sale and delivery of the Shares to be
sold by such Selling Stockholder to the Underwriters hereunder. In connection
with Clause (b) (ii) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to
pay New York State stock transfer tax, and the Selling Stockholder agrees to
reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such
12
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) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have furnished to
you such opinion or opinions, dated such Time of Delivery, with respect to the
matters covered in paragraphs (i), (ii), (iv) and (vi) of subsection (c) below
as well as the Registration Statement and Prospectus and such other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) Debevoise & Xxxxxxxx, counsel for the Company, shall have furnished to you
their written opinions, dated such Time of Delivery, in the forms attached
hereto as Annexes 1(a) and 1(b), to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable, 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;
13
(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 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;
(viii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act; and
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements, related
schedules and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder.
In addition to the matters set forth above, such opinion shall also include a
statement to the effect that such counsel has not checked the accuracy or
completeness of, or otherwise verified, and is not passing upon and assumes no
responsibility for the accuracy or completeness of, the information
14
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) Xxxxxxx X. Xxxx, General Counsel for the Company, shall have furnished to
you his written opinion, dated such Time of Delivery, in the form attached
hereto as Annex I(c), to the effect that:
(i) Lexmark International, Inc. has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where
the failure to so qualify would not, individually or in the aggregate,
have a Material Adverse Effect;
(iii) To the best of such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, individually or in the
aggregate, have had, or, if determined adversely to the Company or any
of its subsidiaries, would reasonably be expected to have, a Material
Adverse Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) The compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any
15
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 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.
16
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 & Xxxx, counsel for the Selling Stockholders, as indicated in
Schedule II hereto, shall have furnished to you their written opinion with
respect to each of the Selling Stockholders, dated such Time of Delivery, in the
form attached hereto as Annex I(d), to the effect that:
(i) A Power of Attorney has been duly executed and delivered by or on
behalf of each Selling Stockholder and a Custody Agreement has been
duly executed and delivered by each Selling Stockholder, and such
Agreements constitute valid and binding agreements of such Selling
Stockholder in accordance with their terms;
(ii) This Agreement and the International Underwriting Agreement have
been duly executed and delivered by or on behalf of each Selling
Stockholder; and the sale of the Shares to be sold by such Selling
Stockholder hereunder and thereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agreement and the
International Underwriting Agreement, the Power of Attorney and the
Custody Agreement will not conflict with or result in any violation of
the provisions of the Certificate of Incorporation or By-laws of such
Selling Stockholder if such Selling Stockholder is a corporation, the
Partnership Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over such Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement and the International
Underwriting Agreement in connection with the Shares to be sold by such
Selling Stockholder hereunder or thereunder, except such as have been
obtained under the Act and such as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters or the International
Underwriters;
17
(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 Xxxxxxx &
Dubilier Private Equity Fund IV Limited Partnership (the "Fund"); and
the sale of the Shares to be sold by the Fund hereunder and thereunder
and the compliance by the Fund with all of the provisions of this
Agreement and the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Fund is a party or by which the Fund is bound, or
to which any of the property or assets of the Fund is subject, nor will
such action result in any violation of the provisions of the
Partnership Agreement or similar instrument of the Fund or any statute
known to such counsel or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Fund, except for such conflicts, breaches, violations or
defaults as would not, individually or in the aggregate, impair the
Fund's ability to perform its obligations hereunder and under the
International Underwriting Agreement.
In rendering such opinion, Ropes & Xxxx may state that they express no opinion
as to the laws of any jurisdiction other than as to the laws of the Commonwealth
of Massachusetts, the General Corporation Law of the State of Delaware and the
Federal laws of the United States, and in rendering certain of the opinions in
subparagraphs (i), (ii), (iii) and (v), Ropes & Xxxx may rely exclusively on
opinions of other counsels for each of the Selling Stockholders, provided that
Ropes & Xxxx shall provide copies of such opinions to you and shall state that
they are not aware of anything to suggest that such other counsels are not
competent to render such opinions, and in rendering the opinion in subparagraph
(iv) Ropes & Xxxx may rely upon a certificate of such Selling Stockholder in
respect of matters of fact as to ownership of, and liens, encumbrances, equities
or claims on the Shares sold by such Selling Stockholder, provided that Ropes &
Xxxx shall provide a copy of such certificate to you and shall state that they
believe that both you and they are justified in relying upon such certificate;
(f) On the effective date of the Registration Statement, on the date of the
Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New
York City time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement and also
at each Time of Delivery, Coopers & Xxxxxxx L.L.P. shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you (the executed copy of the letter delivered prior
to the execution of this Agreement is attached as Annex II(a) hereto and a draft
of the form of the letter to be delivered on the effective date of any post
effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex II(b) hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss
18
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 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
19
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Xxxxxxx,
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 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
20
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 Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(f) Promptly after receipt by an indemnified party under subsection (a), (b),
(c), (d) or (e) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
21
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 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
22
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 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
23
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 Stockholders, if any, pro rata (with the Company's portion based on the
number of Shares to be sold by all non-defaulting Selling Stockholders hereunder
and the defaulting Selling Stockholders' portion based on the number of shares
to be sold by such defaulting Selling Stockholders, if any, hereunder) will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the
24
Company shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of such Selling Stockholder made or given by any or all of
the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(f) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Stockholders by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us ten counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
25
Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Stockholder represents by so doing that, to the best of his knowledge,
he has been duly appointed as Attorney-in-Fact by such Selling Stockholder
pursuant to a validly existing and binding Power of Attorney which authorizes
such Attorney-in-Fact to take such action.
Very truly yours,
Lexmark International Group, Inc.
By: ______________________________________
Name:
Title:
The Xxxxxxx & Dubilier Private Equity
Fund IV Limited Partnership
Leeway & Co.
Mellon Bank, N.A., as trustee for First Plaza
Group Trust
Keys Foundation
Xxxxxxx X. XxXxxxx
By: ______________________________________
Name:
Title:
As Attorney-in-Fact acting on behalf of the
Selling Stockholders named above.
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxx Xxxxxx Inc.
By: ____________________________________________
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
26
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx, Sachs & Co..................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated...
Xxxxxx Xxxxxxx & Co. Incorporated....................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation..
Xxxxx Xxxxxx Inc.....................................
Total............................
27
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- -----------------
The Selling Stockholders:
The Xxxxxxx & Dubilier Private Equity Fund IV
Limited Partnership (a)............................
Leeway & Co. (b).....................................
Mellon Bank, N.A., as trustee for First Plaza Group
Trust (b)..........................................
Keys Foundation (c)..................................
Xxxxxxx X. XxXxxxx(b)................................
Total......................................
(a) This Selling Stockholder is represented by Ropes & Xxxx, Xxx Xxxxxxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, and has appointed Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxx, III, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(b) This Selling Stockholder is represented by Ropes & Xxxx, Xxx Xxxxxxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, and has appointed Xxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxx, III, Xxxxxx X. Xxxx and Xxxxxxx X. Xxxx, and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by Prager Dreifuss,
Xxxxxxxxxxxxxxx 000, XX-0000 Xxxxxx, Xxxxxxxxxxx, and has appointed Xxxxxx X.
Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxx, III, Xxxxxx X. Xxxx and Xxxxxxx X.
Xxxx, and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
28
EXHIBIT I
29
ANNEX I
[Form of opinions of regular and corporate counsel for the Company and counsel
for the Selling Stockholders]
ANNEX II
[Executed accountants' comfort letter, dated the effective date, and form
of bring-down comfort letter]
2
