<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
<TABLE>
<S> <C>
LEXMARK INTERNATIONAL GROUP, INC. LEXMARK INTERNATIONAL, INC.
(Exact Names of Registrants as Specified in Their Charters)
Delaware Delaware
(States or Other Jurisdictions of Incorporation or Organization)
22-3074422 06-1308215
(I.R.S. Employer Identification Nos.)
</TABLE>
--------------------------
ONE LEXMARK CENTRE DRIVE
LEXINGTON, KENTUCKY 40550
(606) 232-2000
(Address, including zip code, and telephone number, including area code, of
Registrants' principal executive offices)
--------------------------
VINCENT J. COLE, ESQ.
LEXMARK INTERNATIONAL GROUP, INC.
ONE LEXMARK CENTRE DRIVE
LEXINGTON, KENTUCKY 40550
(606) 232-2700
(Name, address, including zip code and telephone number, including area code
of agent for service)
--------------------------
COPIES TO:
DAVID B. HARMS, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with a dividend or
interest reinvestment plans, check the following box: / /
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
AMOUNT PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE PROPOSED MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED OFFERING PRICE(1) OFFERING PRICE(1) FEE
<S> <C> <C> <C> <C>
% Senior Notes due 2008........................ $150,000,000 100% $150,000,000 $44,250
Guarantee of % Senior Notes due 2008........... (2) (2) (2) (2)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, exclusive of
accrued interest, if any.
(2) No separate registration fee is required for the Guarantee in accordance
with Rule 457(n) under the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS Subject to Completion Dated , 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
[LOGO]
LEXMARK INTERNATIONAL, INC.
$150,000,000
% SENIOR NOTES DUE 2008
FULLY AND UNCONDITIONALLY GUARANTEED BY
LEXMARK INTERNATIONAL GROUP, INC.
INTEREST PAYABLE AND
ISSUE PRICE: %
Interest on the % Senior Notes due 2008 (the "Notes") of Lexmark
International, Inc., a Delaware corporation (the "Issuer"), offered hereby is
payable semi-annually on and of each year, beginning , 1998. The
Notes are fully and unconditionally guaranteed (the "Guarantee") as to payments
of all amounts in respect thereof by Lexmark International Group, Inc., a
Delaware corporation (the "Company" or the "Guarantor"). The Notes are
redeemable, in whole or in part, at the option of the Issuer at any time at a
redemption price equal to the greater of (i) 100% of the principal amount of the
Notes to be redeemed or (ii) as determined by the Quotation Agent (as defined
herein), the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of
interest accrued to the date of redemption) discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined herein) plus basis
points, plus, in each case (i) and (ii), accrued interest thereon to the date of
redemption. The Notes will not be entitled to the benefits of any sinking fund.
See "Description of Notes and Guarantee."
The Notes will be represented by one or more global securities (collectively,
the "Global Note") registered in the name of The Depository Trust Company
("DTC") or its nominee. Beneficial interests in the Global Note will be shown
on, and transfers thereof will be effected only through, records maintained by
DTC and its participants. Except as provided herein, Notes in definitive form
will not be issued. See "Description of Notes and Guarantee."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) ISSUER(1)(3)
<S> <C> <C> <C>
Per Note % % %
Total $ $ $
</TABLE>
(1) Plus accrued interest, if any, from , 1998.
(2) The Issuer and the Guarantor have agreed, severally and jointly, to
indemnify the Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(3) Before deducting expenses payable by the Issuer, estimated at $ .
The Notes are offered, subject to prior sale, when, as and if delivered to and
accepted by the Underwriters and subject to their right to reject any order in
whole or in part and to approval of certain legal matters. It is expected that
delivery of the Notes will be made on or about , 1998 through the
facilities of DTC, against payment therefor in immediately available funds.
J.P. MORGAN & CO.
SALOMON SMITH BARNEY
NATIONSBANC MONTGOMERY SECURITIES LLC
, 1998
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE NOTES. SPECIFICALLY,
THE UNDERWRITERS MAY OVERALLOT IN CONNECTION WITH THE OFFERING, AND MAY BID FOR
AND PURCHASE THE NOTES IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "UNDERWRITING."
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus or incorporated by reference herein, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company, the Issuer or any Underwriter. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy the Notes by
anyone in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do
so or to any person to whom it is unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the Company or the Issuer since the date hereof or that the
information contained or incorporated by reference herein is correct as of any
time subsequent to the date of such information.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---
<S> <C>
Available Information.................. 3
Incorporation of Certain Documents by
Reference............................ 3
The Company............................ 4
Recent Developments.................... 6
Capitalization......................... 7
Use of Proceeds........................ 8
<CAPTION>
PAGE
---
<S> <C>
Selected Consolidated Financial Data... 9
Summarized Financial Data For the
Issuer............................... 11
Description of Notes and Guarantee..... 12
Underwriting........................... 22
Forward Looking Statements............. 23
Validity of Notes and Guarantee........ 23
Experts................................ 23
</TABLE>
2
<PAGE>
AVAILABLE INFORMATION
Lexmark International Group, Inc. (the "Company") is subject to the
informational requirements of the Securities and Exchange Act of 1934, as
amended ( the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information filed
by the Company may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices located at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
7 World Trade Center, 7th Floor, New York, New York 10048. Copies of such
materials may also be obtained upon written request from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C., 20549, at
prescribed rates. The Commission also maintains a Web Site at
http://www.sec.gov. which contains reports and other information regarding
registrants that file electronically with the Commission. In addition, such
material may also be inspected and copied at the offices of the New York Stock
Exchange, Inc. (the "NYSE"), 20 Broad Street, New York, New York 10005, on which
the Company's Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), is listed.
The Company and the Issuer have filed with the Commission a joint registration
statement on Form S-3 (herein, together with all amendments and exhibits,
referred to as the "Registration Statement") under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the Notes being offered
hereby. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Statements made in this Prospectus
as to the contents of any contract, agreement or other document are not
necessarily complete; with respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference. For
further information with respect to the Company, the Issuer and the Notes,
reference is hereby made to the Registration Statement.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to the
Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 as amended by Form 10-K/A on March 23, 1998, including portions
incorporated therein of the Company's definitive Proxy Statement dated March
26, 1998.
2. The Company's Current Report on Form 8-K, dated April 20, 1998.
3. The Company's Current Report on Form 8-K, dated April 21, 1998.
4. All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offerings of the Shares.
The Company will provide without charge to each person, including any beneficial
owner, to whom a copy of this Prospectus is delivered, upon the written or oral
request of any such person, a copy of any or all of the documents which are
incorporated herein by reference, other than exhibits to such information
(unless such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to the Company, One Lexmark Centre
Drive, Lexington, Kentucky 40550, Attention: Investor Relations, telephone (606)
232-5108.
------------------------
Any statement contained in a document or a portion thereof which is incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document or portion thereof
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified shall not be deemed to
constitute a part of this Prospectus except as so modified, and any statement so
superseded shall not be deemed to constitute part of this Prospectus.
3
<PAGE>
THE COMPANY HAS AS ITS ONLY SIGNIFICANT ASSET ALL THE OUTSTANDING COMMON STOCK
OF THE ISSUER. HEREINAFTER, "THE COMPANY" AND "LEXMARK" WILL REFER TO THE
COMPANY, THE ISSUER AND ITS SUBSIDIARIES, TAKEN TOGETHER, UNLESS THE CONTEXT
REQUIRES OTHERWISE.
THE COMPANY
Lexmark is a global developer, manufacturer and supplier of laser and inkjet
printers and associated consumable supplies for the office and home markets.
Lexmark also sells dot matrix printers for printing single and multi-part forms
by business users. In 1997, revenues from the sale of printers and associated
printer supplies increased 10% from 1996 and accounted for 81% of total Company
revenues of approximately $2.5 billion.
The Company's installed base of printers supports a large and profitable printer
supplies business. Because consumable supplies must be replaced on average one
to three times a year, depending on type of printer and usage, demand for laser
and inkjet print cartridges is increasing at a higher rate than their associated
printer shipments. This is a relatively high margin, recurring business that
management expects to contribute to the stability of Lexmark's earnings over
time.
In addition to its core printer business, Lexmark develops, manufactures and
markets a broad line of other office imaging products which include supplies for
International Business Machines Corporation ("IBM") branded printers,
after-market supplies for original equipment manufacturer ("OEM") products, and
typewriters and typewriter supplies that are sold under the IBM trademark. In
1997, revenues from the sale of other office imaging products decreased 7% from
1996, primarily as a result of lower typewriter sales and lower typewriter and
impact printing supplies volume reflecting the continuing decline of these
markets, and accounted for 19% of total Company revenues.
Revenues derived from international sales, including exports from the United
States, represent over half of the Company's revenues. Lexmark's products are
sold in over 150 countries in North and South America, Europe, the Middle East,
Africa, Asia, the Pacific Rim and the Caribbean. As of December 31, 1997, the
Company had approximately 8,000 employees worldwide.
The Company's principal executive offices are located at One Lexmark Centre
Drive, Lexington, Kentucky 40550. Telephone: (606) 232-2000.
PRINTERS AND ASSOCIATED SUPPLIES
Lexmark competes primarily in the markets for office desktop laser and color
inkjet printers--two of the fastest growing printer categories. Sales of office
desktop laser and color inkjet printers and their associated supplies together
represented approximately 86% and 87% of Lexmark's total printer and associated
supplies revenues in 1996 and 1997, respectively.
The Company's critical technology and manufacturing capabilities have allowed
Lexmark to effectively manage quality and to reduce its typical new product
introduction cycle times, for example, in the case of laser printers from 24
months to approximately 12 to 16 months. Management believes its cycle times are
among the fastest in the industry and that these capabilities have contributed
to the Company's success over the last several years.
LASER PRINTERS. Network laser printer growth is being driven by the office
migration from large mainframe computers to local area networks that link
various types of computers using a variety of protocols and operating systems.
This shift has created strong demand for office desktop laser printers with
network connectivity attributes. Laser printers that print at speeds of 11-30
pages per minute ("ppm") are referred to herein as "office desktop" or "network"
printers, while lower-speed (1-10 ppm) laser printers and inkjet printers are
referred to herein as "personal" printers. The Company's laser printers
primarily compete in the office desktop segment, which the Company believes is
one of the fastest growing segments of the laser printer market.
Lexmark develops and owns most of the technology for its desktop laser printers
and consumable supplies, which differentiates the Company from a number of its
major competitors, including Hewlett-Packard Company ("HP")
4
<PAGE>
which purchases its laser engines from third parties. Lexmark's integration of
research and development, manufacturing and marketing has enabled the Company to
design laser printers with features desired by specific customer groups and has
resulted in substantial market presence for Lexmark within certain industry
segments such as banking, retail/pharmacy, automobile distribution and
healthcare.
INKJET PRINTERS. The color inkjet printer market, the fastest growing segment
of the personal printer market, is expanding rapidly due to growth in personal
computers at home and in business and the development of easy-to-use color
inkjet technology with high quality color and black print capability at low
prices. Based on data from industry analysts, management believes that the
inkjet market grew from 4 million units in 1992 to 33 million units in 1997 and
will continue to grow substantially as a result of the increase in the number of
personal computers and as the inkjet market continues to shift from monochrome
to color and as inkjet printers continue to replace low-speed laser printers.
Lexmark introduced its first color inkjet printer using its own technology in
1994 and has experienced strong sales growth through retail outlets. The Company
has increased its product distribution through retail outlets, with the number
of such outlets worldwide rising from approximately 5,000 retail outlets in 1995
to more than 15,000 in 1996, and remaining relatively constant during 1997. The
Company's ability to increase or maintain its presence in the retail marketplace
with its branded products may be adversely affected as the Company becomes more
successful in its sales and marketing efforts for OEM opportunities. The Company
made substantial capital investments in its inkjet production capacity in 1995
and 1996 to address the growing demand for its color inkjet printers.
SUPPLIES. The Company is currently the exclusive source for new print
cartridges for the laser and inkjet printers it manufactures. Management expects
that an increasing percentage of future Company earnings will come from its
consumable supplies business due to the consumer's continual usage and
replacement of cartridges. In 1996, the Company substantially expanded its
inkjet cartridge manufacturing capacity in both North America and Europe.
STRATEGY. Lexmark's laser printer strategy is to target fast growing segments
of the network printer market and to increase market share by providing high
quality, technologically advanced products at competitive prices. To promote
Lexmark brand awareness and market penetration, Lexmark will continue to
identify and focus on customer segments where Lexmark can differentiate itself
by supplying laser printers with features that meet specific customer needs and
represent the best total cost of printing solution. Management intends to
continue to develop and market products with more functions and capabilities
than comparably priced HP printers. The Company's inkjet printer strategy is to
generate demand for the Lexmark color inkjet printer by offering high-quality
products at competitive prices to retail, business and OEM customers. Management
expects that the Company's associated printer supplies business will continue to
grow as its installed base of laser and inkjet printers increases.
OTHER OFFICE IMAGING PRODUCTS
The Company's other office imaging products category includes many mature
products such as supplies for IBM printers, typewriters and typewriter supplies
and other impact supplies that require little investment but provide a
significant source of cash flow. The Company introduced its after-market laser
cartridges in May 1995 for the large installed base of a range of laser printers
sold by other manufacturers. Management believes that the potential for an
after-market laser cartridge business is significant. The Company's strategy for
other office imaging products is to pursue the after-market OEM laser supplies
opportunity while at the same time managing its mature businesses for cash flow.
- ------------------------
Lexmark-TM- is a registered trademark of Lexmark International, Inc.
HP-Registered Trademark- is a registered trademark of Hewlett- Packard Company.
Apple-Registered Trademark- is a registered trademark of Apple Computer, Inc.
Canon-Registered Trademark- is a registered trademark of Canon Kabushiki Kaisha.
IBM-Registered Trademark- is a registered trademark of IBM. Xerox-Registered
Trademark- is a registered trademark of Xerox Corporation.
5
<PAGE>
RECENT DEVELOPMENTS
FIRST QUARTER OPERATING RESULTS. On April 20, 1998, Lexmark reported record
revenues for the first quarter of 1998 of $672 million, an increase of 15% over
the first quarter of 1997, reflecting strong growth of printers and associated
supplies. Earnings increased 61% to $50 million with diluted earnings per share
increasing 72% to $0.69. (in each case before extraordinary charges in the first
quarter of 1997).
NEW REVOLVING CREDIT FACILITY. On January 27, 1998, Lexmark entered into a new
$300 million unsecured revolving credit and competitive advance facility with a
group of banks (the "New Credit Facility"). Upon entering into the New Credit
Facility, the Issuer used borrowings under the New Credit Facility to repay the
amounts outstanding under its existing term loan and revolving credit facility
(the "Prior Credit Facility"), which was then terminated. The New Credit
Facility matures on January 27, 2003.
SHARE REPURCHASES. As of December 31, 1997, the Company had repurchased
6,438,114 shares of its Class A Common Stock in open market and other
transactions, at prices ranging from $21.25 to $33.75 per share for an aggregate
cost of approximately $182 million, under previous board authorizations for
repurchases totaling $200 million. In February 1998, the Company's board of
directors authorized the repurchase of up to an additional $200 million of its
Class A Common Stock. This repurchase authority, like the prior authorizations,
allows the Company at management's discretion to selectively repurchase its
Class A Common Stock from time to time in the open market or in privately
negotiated transactions depending upon market price and other factors. During
the first quarter of 1998, the Company repurchased 2,000,000 shares of Class A
Common Stock from certain stockholders at a price per share equal to $43.38 per
share, leaving approximately $131 million remaining under the existing board
authorizations as of March 31, 1998. These 1998 repurchases were financed with
borrowings under the New Credit Facility.
6
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the Company
(a) at December 31, 1997, (b) as adjusted to give effect to (i) the repurchase
of 2,000,000 shares of Class A Common Stock during the first quarter of 1998,
(ii) repayment of the Prior Credit Facility, and (iii) borrowing under the New
Credit Facility to finance the purchase in (i) and the repayment in (ii) ((i),
(ii) and (iii) collectively, the "Reflected Events") and (c) as adjusted to give
effect to the Reflected Events, the sale of the Notes offered hereby and the
application of the estimated net proceeds therefrom to repay borrowings under
the New Credit Facility (with the remaining proceeds added to cash or cash
equivalents), as described under "Use of Proceeds." The information in this
table should be read in conjunction with the consolidated historical financial
statements and related notes of the Company incorporated by reference herein.
See "Use of Proceeds."
<TABLE>
<CAPTION>
DECEMBER 31, 1997
<S> <C> <C> <C>
(IN MILLIONS)
-----------------------------------------------
<CAPTION>
AS ADJUSTED FOR
THE REFLECTED
AS ADJUSTED FOR EVENTS
THE REFLECTED AND THE OFFERING
ACTUAL EVENTS OF THE NOTES
--------- --------------- -------------------
<S> <C> <C> <C>
CASH AND CASH EQUIVALENTS.......................................... $ 43.0 $ 43.0 $ 47.9
--------- ------- -------
--------- ------- -------
SHORT-TERM DEBT.................................................... $ 18.0 $ 18.0 $ 18.0
--------- ------- -------
LONG-TERM DEBT
% Senior Notes due 2008........................................ -- -- 150.0
Prior Credit Facility
Term Loan.................................................... 37.0 -- --
Revolving Credit Facility.................................... 20.0 -- --
New Credit Facility.............................................. -- 143.8(1) --
--------- ------- -------
Total long-term debt....................................... 57.0 143.8(1) 150.0
--------- ------- -------
STOCKHOLDERS' EQUITY(2):
Preferred stock, $.01 par value, 1,600,000 shares authorized, no
shares outstanding............................................. -- -- --
Class A common stock, $.01 par value, 160,000,000 shares
authorized, 67,539,935 outstanding............................. 0.7 0.7 0.7
Class B common stock, $.01 par value, 10,000,000 shares
authorized, 410,537 outstanding(3)............................. -- -- --
Additional paid-in capital....................................... 537.2 537.2 537.2
Retained earnings................................................ 168.8 168.8 168.8
Accumulated translation adjustment............................... (23.8) (23.8) (23.8)
Treasury stock, at cost.......................................... (182.2) (269.0) (269.0)
--------- ------- -------
Total stockholders' equity................................. 500.7 413.9 413.9
--------- ------- -------
Total capitalization....................................... $ 575.7 $ 575.7 $ 581.9
--------- ------- -------
--------- ------- -------
</TABLE>
- ------------------------
(1) Does not reflect working capital borrowings under the New Credit Facility
since December 31, 1997.
(2) As of December 31, 1997, the Company had repurchased 6,438,114 shares of
Class A Common Stock in open market and other transactions at prices ranging
from $21.25 to $33.75 per share for an aggregate cost of approximately $182
million, under board authorizations permitting repurchases totaling up to
$200 million. In February 1998, the Company's board of directors authorized
the repurchase of up to an additional $200 million of its Class A Common
Stock. This repurchase authority, like the prior authorizations, allows the
Company at management's discretion to selectively repurchase its stock from
time to time in the open market or in privately negotiated transactions
depending upon market prices and other factors. During the first quarter of
1998, the Company repurchased 2,000,000 shares of Class A Common Stock from
certain stockholders at a price per share equal to $43.38 per share, leaving
approximately $131 million remaining under the existing authorizations as of
March 31, 1998. These 1998 repurchases were financed with borrowings under
the New Credit Facility.
(3) As of February 12, 1998, all of the outstanding shares of Class B Common
Stock had been converted into Class A Common Stock.
7
<PAGE>
USE OF PROCEEDS
The net proceeds from the offering of the Notes are estimated to be
approximately $ million (after deducting expenses and underwriting
discount paid by the Issuer). The Issuer expects to use a portion of the net
proceeds from the offering and sale of the Notes to repay all of its borrowings
under its New Credit Facility, which matures on January 27, 2003. Any remaining
net proceeds will be used for general corporate purposes. The indebtedness to be
repaid bears interest at a weighted average rate of approximately 6.0% as of
April 17, 1998. It is expected that up to approximately 20% of the net proceeds
of the offering of the Notes will be applied to repayment of loans made to the
Issuer by Morgan Guaranty Trust Company of New York and NationsBank, N.A., both
of which are lenders under the New Credit Facility and are affiliates of J.P.
Morgan Securities Inc. and NationsBanc Montgomery Securities LLC, respectively,
both of which are Underwriters of the Notes. See "Underwriting."
8
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected financial data of the Company on a
consolidated basis. The statement of earnings data and the statement of
financial position data at and for the years ended December 31, 1997, 1996,
1995, 1994 and 1993 have been derived from the Company's audited consolidated
financial statements. The selected financial data set forth below should be read
in conjunction with the Company's consolidated financial statements and notes
thereto incorporated herein by reference.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997 1996 1995(1) 1994 1993
------------- ------------- ------------- ------------- -------------
<CAPTION>
(IN MILLIONS, EXCEPT SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Revenues............................. $ 2,493.5 $ 2,377.6 $ 2,157.8 $ 1,852.3 $ 1,675.7
Cost of revenues..................... 1,623.5 1,630.2 1,487.9 1,298.8 1,107.4
------------- ------------- ------------- ------------- -------------
Gross profit......................... 870.0 747.4 669.9 553.5 568.3
Research and development............. 128.9 123.9 116.1 101.0 111.7
Selling, general and administrative.. 466.5 388.0 359.1 292.9 322.0
------------- ------------- ------------- ------------- -------------
Operating income before option
compensation related to IPO and
amortization of intangibles........ 274.6 235.5 194.7 159.6 134.6
Option compensation related to IPO... -- -- 60.6 -- --
Amortization of intangibles(2)....... -- 5.1 25.6 44.7 64.0
------------- ------------- ------------- ------------- -------------
Operating income..................... 274.6 230.4 108.5 114.9 70.6
Interest expense..................... 10.8 20.9 35.1 50.6 63.9
Amortization of deferred financing
costs and other expense............ 9.1 7.9 10.1 13.6 13.1
------------- ------------- ------------- ------------- -------------
Earnings (loss) before income taxes
and extraordinary item............. 254.7 201.6 63.3 50.7 (6.4)
Provision for income taxes........... 91.7 73.8 15.2 6.1 3.0
------------- ------------- ------------- ------------- -------------
Earnings (loss) before extraordinary
item............................... 163.0 127.8 48.1 44.6 (9.4)
Extraordinary loss(3)................ (14.0) -- (15.7) -- --
------------- ------------- ------------- ------------- -------------
Net earnings (loss).................. $ 149.0 $ 127.8 $ 32.4 $ 44.6 $ (9.4)
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
Diluted earnings (loss) per common
share before extraordinary
item(4)............................ $ 2.17 $ 1.69 $ 0.65 $ (0.48) $ (0.35)
Diluted net earnings (loss) per
common share(4).................... $ 1.98 $ 1.69 $ 0.44 $ (0.48) $ (0.35)
Shares used in diluted earnings per
share calculation.................. 75,168,776 75,665,734 74,200,279 58,853,416 58,880,761
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
-------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997 1996 1995(1) 1994 1993
------------- ------------- ------------- ------------- -------------
<CAPTION>
(IN MILLIONS, EXCEPT SHARE DATA AND RATIOS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF FINANCIAL POSITION DATA:
Cash and cash equivalents............ $ 43.0 $ 119.3 $ 150.5 $ 42.0 $ 105.0
Trade receivables, net............... 318.9 304.7 213.6 191.1 221.4
Inventories.......................... 353.8 271.0 296.3 279.0 307.5
Prepaid expenses and other current
assets............................. 60.4 70.1 55.3 45.6 72.7
------------- ------------- ------------- ------------- -------------
Total current assets........... 776.1 765.1 715.7 557.7 706.6
Property, plant and equipment, net... 409.6 434.1 361.2 337.1 357.2
Other assets......................... 22.5 22.3 66.0 66.1 151.2
------------- ------------- ------------- ------------- -------------
Total assets................... $ 1,208.2 $ 1,221.5 $ 1,142.9 $ 960.9 $ 1,215.0
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
Short-term debt (including current
portion of long-term debt)-term.... $ 18.0 $ 2.1 $ 20.0 $ -- $ 139.0
Accounts payable..................... 302.0 197.2 209.6 138.3 121.3
Accrued liabilities.................. 227.5 222.0 258.4 181.9 152.7
------------- ------------- ------------- ------------- -------------
Total current liabilities...... 547.5 421.3 488.0 320.2 413.0
Long-term debt....................... 57.0 163.2 175.0 290.0 511.7
Other liabilities.................... 103.0 96.7 89.7 55.2 31.6
Redeemable senior preferred
stock(5)........................... -- -- -- -- 85.0
Stockholders' equity................. 500.7 540.3 390.2 295.5 173.7
------------- ------------- ------------- ------------- -------------
Total liabilities and
stockholders' equity......... $ 1,208.2 $ 1,221.5 $ 1,142.9 $ 960.9 $ 1,215.0
------------- ------------- ------------- ------------- -------------
------------- ------------- ------------- ------------- -------------
OTHER DATA:
Working capital...................... $ 228.6 $ 343.8 $ 227.7 $ 237.5 $ 293.6
Ratio of earnings to fixed
charges(6)......................... 8.1 5.5 2.1 1.6 0.9
Debt to total capital ratio.......... 13% 23% 33% 50% 72%
Depreciation and amortization........ $ 77.5 $ 69.2 $ 99.1 $ 127.3 $ 139.1
Capital expenditures................. $ 69.5 $ 145.0 $ 106.8 $ 58.1 $ 62.4
</TABLE>
- ------------------------
(1) The Company recognized a non-cash compensation charge of $60.6 ($38.5 net of
tax benefit) in the fourth quarter of 1995 and will recognize additional
amounts totalling $2.2 ($1.4 net of tax benefit) in the years 1996-2000,
resulting from the vesting of certain of the Company's outstanding employee
stock options at the time of the Company's initial public offering in
November 1995.
(2) Acquisition-related intangibles were fully amortized at March 31, 1996.
(3) Represents extraordinary after-tax loss caused by early extinguishments of
debt related to the refinancing of the Company's term loan in April 1995 and
prepayment of the Company's senior subordinated notes in March 1997.
(4) Earnings per share amounts have been calculated and presented under the
provisions of SFAS No. 128. Diluted earnings (loss) per common share are net
of dividends of $11.5 and $11.8 paid on the Company's redeemable senior
preferred stock in 1993 and 1994, respectively. Earnings attributable to
common stock in 1994 are also net of a $61.3 preferred stock redemption
premium related to the exchange of redeemable senior preferred stock for
Class A Common Stock on December 30, 1994. No senior preferred stock is
currently outstanding.
(5) Redeemable senior preferred stock with a liquidation preference of $85.0 was
exchanged for 9,750,000 shares of Class A Common Stock on December 30, 1994.
As of December 31, 1997, the Company had repurchased 6,438,114 shares of
Class A Common Stock in the open market for an aggregate cost of
approximately $182.2 million.
(6) The ratios of earnings to fixed charges were computed by dividing (i) the
sum of (a) net income, before deducting extraordinary items and the
provision for income taxes and (b) fixed charges (excluding capitalized
interest), by (ii) total fixed charges. Fixed charges (including capitalized
interest) consist of interest on debt, including amortization of deferred
financing costs and gross rental expense.
10
<PAGE>
SUMMARIZED FINANCIAL DATA FOR THE ISSUER
Set forth below is summarized financial information for the Issuer, as of and
for each of the three years in the period ended December 31, 1997 which has been
derived from the Company's audited consolidated financial statements. Such
information should be read in conjunction with the Company's consolidated
financial statements and notes thereto incorporated herein by reference. This
information is substantially the same as the financial information reported for
the Company because: (i) the operations of the Company are conducted by the
Issuer and the direct and indirect subsidiaries of the Issuer; (ii) the Company
has no material assets other than all of the ownership interest in the Issuer;
and (iii) substantially all of the assets and liabilities shown in the
consolidated financial statements for the Company are assets and liabilities of
the Issuer and its direct and indirect subsidiaries.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
(IN MILLIONS)
STATEMENT OF EARNINGS DATA:
Revenues....................................................................... $ 2,493.5 $ 2,377.6 $ 2,157.8
Gross profit................................................................... 870.0 747.4 669.9
Earnings before extraordinary item............................................. 163.0 127.8 48.1
Net earnings................................................................... 149.0 127.8 32.4
--------- --------- ---------
STATEMENT OF FINANCIAL POSITION DATA:
Total current assets........................................................... 776.1 765.1 715.7
Noncurrent assets.............................................................. 432.1 456.4 427.2
Total current liabilities...................................................... 551.4 423.9 490.5
Noncurrent liabilities......................................................... 160.0 259.9 264.7
</TABLE>
11
<PAGE>
DESCRIPTION OF NOTES AND GUARANTEE
The Notes are to be issued under an Indenture, to be dated as of , 1998
(the "Indenture"), among the Issuer, the Company, as guarantor (the
"Guarantor"), and The Bank of New York, as Trustee (the "Trustee"), a copy of
which is filed as an exhibit to the Registration Statement. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms.
Wherever particular Sections or defined terms of the Indenture are referred to,
such Sections or defined terms are incorporated herein by reference. All
references in this section, "Description of Notes and Guarantee," to the
"Guarantor" refer solely to Lexmark International Group, Inc. and not Lexmark
International Group, Inc. and its consolidated subsidiaries, and all references
to the "Issuer" refer solely to Lexmark International, Inc. and not to Lexmark
International, Inc. and its consolidated subsidiaries.
GENERAL; GUARANTEE
The Notes will be unsecured and unsubordinated obligations of the Issuer and
will rank PARI PASSU, without any preference or priority of payment, with all
other unsecured and unsubordinated indebtedness of the Issuer. The Notes will be
limited to $150,000,000 aggregate principal amount and will mature on at
100% of their principal amount, unless earlier redeemed pursuant to the terms
thereof. See "Optional Redemption." The Notes will have the benefit of a
guarantee (the "Guarantee") from the Guarantor. Pursuant to the Guarantee, the
Guarantor will unconditionally guarantee the due and punctual payment of
principal, interest and any other amount that the Issuer is obligated to pay in
respect of the Notes, as and when the same shall become due and payable, whether
at Stated Maturity, by declaration of acceleration, call for redemption or
otherwise. The Guarantee will be an unsecured and unsubordinated obligation of
the Guarantor and will rank PARI PASSU, without any preference or priority of
payment, with all other present and future unsecured and unsubordinated
indebtedness of the Guarantor. The Guarantee will remain in effect until all
amounts payable in respect of the Notes have been paid in full. Except as
described under "Restrictive Covenants," the Indenture does not limit other
indebtedness or securities which may be incurred or issued by the Guarantor, the
Issuer or any of their subsidiaries or contain financial or similar restrictions
on the Guarantor, the Issuer or any of their subsidiaries. The Guarantor's and
the Issuer's rights and the rights of their creditors, including holders of the
Notes, to participate in any distribution of assets of any subsidiary of the
Guarantor (other than the Issuer) upon the subsidiary's liquidation or
reorganization or otherwise are effectively subordinated to the claims of the
subsidiary's creditors, except to the extent that the Guarantor or the Issuer or
any of their creditors may itself be a creditor of that subsidiary.
INTEREST AND PAYMENTS
The Notes will bear interest at the rate per annum shown on the front cover of
this Prospectus from , 1998 or from the most recent Interest Payment Date
to which interest has been paid or provided for, payable semi-annually on
and of each year, commencing , 19 , to the Person in whose name
the Note (or any predecessor Note) is registered (a "Holder") at the close of
business on the preceding or , as the case may be (the "Record
Dates"). (SectionSection 301 and 308). Interest on the Notes will be computed on
the basis of a 360-day year of twelve 30-day months.
As described below, the Notes will be issued in global (I.E., book-entry) form
and all payments in respect of global Notes will be made through the facilities
of The Depository Trust Company ("DTC"), as depositary for such Notes. (Section
305). Payment procedures, including those applicable to any Notes that in the
future may be issued in certificated (i.e., non book-entry) form, are described
under "Form, Denomination, Transfer and Book-Entry Procedures." Any payment
required to be made on a date that is not a Business Day need not be made on
such day, but may be made on the next succeeding Business Day with the same
force and effect as if made on such date. As used herein, the term "Business
Day" means any day, other than a Saturday or Sunday, on which banks in The City
of New York are not required or authorized by law or executive order to be
closed.
The Notes are not entitled to the benefits of any sinking fund.
12
<PAGE>
FORM, DENOMINATION, TRANSFER AND BOOK-ENTRY PROCEDURES
The Notes will be issued only in fully registered form, without coupons, in
minimum denominations of $1,000 and any integral multiple thereof. (Section
302). Notes will be issued at the closing for the offering of the Notes only
against payment in immediately available funds.
GLOBAL NOTE
The Notes will be represented by one or more Notes in registered, global form
without interest coupons (collectively, the "Global Note"). The Global Note will
be deposited upon issuance with the Trustee as custodian for The Depository
Trust Company (the "Initial Depositary"), in New York, New York, and registered
in the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below. (Section 305).
Transfers of beneficial interests in the Global Note will be subject to the
applicable rules and procedures of DTC and its direct or indirect participants,
which may change from time to time. Except as set forth below, the Global Note
may be transferred, in whole and not in part, only to DTC, another nominee of
DTC or to a successor of DTC or its nominee. Beneficial interests in the Global
Note may not be exchanged for Notes in certificated form except in the limited
circumstances described below. See "--Exchange of Book-Entry Notes for
Certificated Notes."
EXCHANGE OF GLOBAL NOTE FOR CERTIFICATED NOTES
A beneficial interest in the Global Note may not be exchanged for a Note in
certificated (i.e., non-book-entry) form unless (i) DTC (x) notifies the Issuer
that it is unwilling or unable to continue as Depositary for the Global Note and
the Issuer thereupon fails to appoint a successor Depositary or (y) has ceased
to be a clearing agency registered under the Exchange Act or (ii) there shall
have occurred and be continuing an Event of Default (as defined below) with
respect to the Notes. In all cases, certificated Notes delivered in exchange for
the Global Note or beneficial interests therein will be registered in the names,
and issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with its customary procedures).
Unless otherwise specified, the following procedures for payment and
registration of transfer will apply to any certificated Note that may be issued
in the future. Payments of principal, interest and other amounts due on such a
Note at maturity will be made to the registered Holder on the payment date upon
surrender of such Note at the office of the Paying Agent, by check drawn on, or
by transfer to an account maintained by the Holder at, a bank located in New
York City (PROVIDED that the interest that is payable on any Interest Payment
Date shall be paid to the Person in whose name a Note is registered at the close
of business on the Regular Record Date for such interest). Payments of interest
due at other times will be made by the Paying Agent by check of this type mailed
to the Holder at its address as it appears in the Security Register.
Notwithstanding the foregoing, a Holder of at least $1,000,000 in aggregate
principal amount of Notes will be entitled to receive payment of any amount due
on such Notes on any date by wire transfer of immediately available funds to an
account maintained by a bank located in New York City, if appropriate wire
transfer instructions have been given to the Issuer or its agent at least 10
Business Days prior to the due date (and any such instructions, once given, will
remain in effect with regard to payments due on all future dates unless properly
revoked).
Any certificated Note may be presented for registration of transfer and exchange
at the office of the Paying Agent. No service charge will be made for any
registration of transfer or exchange of any Note, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 306).
CERTAIN BOOK-ENTRY PROCEDURES FOR GLOBAL NOTES
The description of the operations and procedures of DTC that follows is provided
solely as a matter of convenience. These operations and procedures are solely
within the control of DTC and are subject to change from
13
<PAGE>
time to time. The Issuer and the Guarantor take no responsibility for these
operations and procedures and urge investors to contact DTC or its participants
directly to discuss these matters.
DTC has advised the Issuer that DTC is a limited-purpose trust company created
to hold securities for its participating organizations (collectively, the
"Participants") and to facilitate the clearance and settlement of transactions
in those securities between Participants through electronic book-entry changes
in accounts of its Participants. The Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Access to DTC's system is also available to other entities such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly
(collectively, the "Indirect Participants"). Persons who are not Participants
may beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest and transfer
of ownership interest of each actual purchaser of each security held by or on
behalf of DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised the Issuer that pursuant to procedures established by it,
(i) upon deposit of the Global Note, DTC will credit, on its internal system,
the accounts of Participants designated by the Underwriters with portions of the
principal amount of the Global Note and (ii) ownership of such interests in the
Global Note will be shown on, and the transfer of ownership thereof will be
effected only through, records maintained by DTC (with respect to the
Participants) or by the Participants and the Indirect Participants (with respect
to other owners of beneficial interests in the Global Note).
Investors in the Global Note may hold their interests therein directly through
DTC, if they are Participants in such system, or indirectly through
organizations which are participants in such system. All interests in the Global
Note may be subject to the procedures and requirements of DTC. Transfers and
exchange of interests in the Global Note will also be subject to the
restrictions described above under "--Exchange of Book-Entry Notes for
Certificated Notes."
The laws of some states require that certain persons take physical delivery in
definitive form of securities that they own. Consequently, the ability to
transfer beneficial interests in the Global Note to such persons may be limited
to that extent. Because DTC can act only on behalf of Participants, which in
turn act on behalf of Indirect Participants and certain banks, the ability of a
person having beneficial interests in the Global Note to pledge such interests
to persons or entities that do not participate in the Depositary system, or
otherwise take actions in respect of such interests, may be affected by the lack
of a physical certificate evidencing such interests.
As long as DTC or its nominee is the registered Holder of the Global Note, DTC
or such nominee, as the case may be, will be considered the sole owner and
Holder of the Notes represented by the Global Note for all purposes under the
Indenture, the Notes and the Guarantee. Except as described above, owners of
interests in the Global Note will not have Notes registered in their names, will
not receive physical delivery of Notes in certificated form and will not be
considered the registered owners or holders thereof under the Indenture, the
Notes or the Guarantee for any purpose.
Payments in respect of the principal of (and premium, if any) and interest on
the Global Note will be made to DTC or its nominee in its capacity as the
registered Holder under the Indenture. The Issuer expects that DTC, upon receipt
of any payment in respect of the Global Note, will credit the accounts of the
relevant Participants with the payment on the payment date, in amounts
proportionate to their respective beneficial interests in the Global Note as
shown on the records of DTC. The Issuer also expects that payments by the
Participants and the Indirect Participants to the beneficial owners of the
Global Note will be governed by standing instructions and customary practices
and will be the responsibility solely of the Participants or the Indirect
Participants. Neither the Issuer, the Guarantor nor the Trustee will be liable
for any delay by DTC or any of its Participants in identifying the beneficial
owners of the Global Note, and the Issuer, the Guarantor and the Trustee may
conclusively rely on and will be protected in relying on instructions from DTC
or its nominee as the registered owner of the Global Note for all purposes.
14
<PAGE>
Interests in the Global Note will trade in DTC's Same-Day Funds Settlement
System and secondary market trading activity in such interests will therefore
settle in immediately available funds, subject in all cases to the rules and
procedures of DTC and its Participants. Transfers between Participants in DTC
will be effected in accordance with DTC's procedures, and will be settled in
same-day funds.
DTC has advised the Issuer that it will take any action permitted to be taken by
a Holder of Notes only at the direction of one or more Participants to whose
account with DTC interests in the Global Note are credited and only in respect
of such portion of the aggregate principal amount of the Notes as to which such
Participant or Participants has or have given such direction. However, if there
is an Event of Default under the Notes, DTC reserves the right to exchange the
Global Note for Notes in certificated form, and to distribute such Notes to its
Participants.
Neither the Issuer, the Guarantor nor the Trustee will have any responsibility
for the performance by DTC or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations, including maintaining, supervising and reviewing the records related
to, and payments made on account of, beneficial ownership interests in the
Global Note, and any other action taken by any such depositary, participant or
indirect participant.
OPTIONAL REDEMPTION
The Notes will be redeemable, in whole or in part, at the option of the Issuer
at any time at a redemption price equal to the greater of (i) 100% of the
principal amount of the Notes to be redeemed or (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such
payments of interest accrued to the date of redemption) discounted to the date
of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus basis points,
plus, in each case (i) or (ii), accrued interest thereon to the date of
redemption. (Section 1101).
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the date fixed for redemption to each holder of the Notes to be
redeemed. Unless the Issuer defaults in payment of the redemption price, on and
after the date fixed for redemption, interest will cease to accrue on the Notes
or portions thereof called for redemption. (Section 1105).
RESTRICTIVE COVENANTS
LIMITATION ON LIENS
The Guarantor will not, and will not permit any Subsidiary to, incur any Lien on
property or assets owned on or acquired after the date of the Indenture to
secure Debt without making, or causing such Subsidiary to make, effective
provision for securing the Notes (and, if the Guarantor may so determine, any
other Debt of the Guarantor or such Subsidiary that is not subordinated in right
of payment to the Notes) (x) equally and ratably with such Debt as to such
property or assets for as long as such Debt will be so secured or (y) in the
event such Debt is subordinated in right of payment to the Notes, prior to such
Debt as to such property for as long as such Debt will be so secured. (Section
1008).
The foregoing restrictions will not apply to Liens existing on the date of the
Indenture or to: (i) Liens securing only the Notes; (ii) Liens in favor of only
one or more of the Guarantor and its Subsidiaries; (iii) any Lien on property of
a Person existing immediately prior to the time such Person is merged with or
into or consolidated with the Guarantor or any Subsidiary of the Guarantor or
otherwise becomes a Subsidiary of the Guarantor (PROVIDED that such Lien is not
incurred in anticipation of such transaction and does not extend beyond the
property subject thereto, or secure any Debt that is not secured thereby,
immediately prior to such transaction); (iv) any Lien on property existing
immediately prior to the time of acquisition thereof (PROVIDED that such Lien is
not incurred in anticipation of such acquisition and does not extend beyond the
property subject thereto, or secure any Debt that is not secured thereby,
immediately prior to such acquisition); (v) Liens to secure Debt
15
<PAGE>
incurred for the purpose of financing all or any part of the purchase price of,
or the cost of construction on or improvement of, the property subject to such
Liens, PROVIDED, HOWEVER, that (a) the principal amount of any Debt secured by
such a Lien does not exceed 100% of such price or cost, (b) such Lien does not
extend to or cover any other property other than such item of property and any
improvements on such item, and (c) such Lien must be created no later than the
270th day after such purchase or the completion of such construction or
installation of such improvements; (vi) Liens on property of the Guarantor or
any Subsidiary of the Guarantor in favor of the United States of America or any
state thereof, or any instrumentality of either, to secure payments to be made
pursuant to any contract or statute; (vii) (a) Liens for taxes or assessments or
other governmental charges or levies or (b) any statutory Liens of a carrier,
warehouseman, mechanic, materialman or other like Liens imposed by law incurred
in the ordinary course of business that, in either case (a) or (b), are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and for which such reserve or other appropriate provision,
if any, as may be required in accordance with generally accepted accounting
principles has been made; (viii) Liens to secure obligations under workmen's
compensation, unemployment insurance or other social security laws or similar
legislation; (ix) Liens incurred to secure the performance of statutory
obligations, surety or appeal bonds, performance or return-of-money bonds or
other obligations of a like nature incurred in the ordinary course of business;
(x) any Lien in favor of the Trustee in respect of expenses incurred or services
rendered pursuant to the Indenture; (xi) any Lien that may be deemed to arise
from a Permitted Receivables Financing; (xii) Liens securing obligations arising
under easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of the Guarantor or any Subsidiary; and (xiii) Liens to secure Debt
incurred to extend, renew, refinance or refund (or successive extensions,
renewals, refinancings or refundings), in whole or in part, Debt secured by any
Lien referred to in the foregoing clauses (iii), (iv) or (v) as long as such
Lien does not extend to any other property and the Debt so secured is not
increased except for increases in the amount of interest, premiums or fees and
associated costs payable in connection with such extensions, renewals,
refinancings or refundings. (Section 1008).
In addition to the foregoing, the Guarantor and its Subsidiaries may, without
equally and ratably securing the Notes, incur a Lien to secure Debt or enter
into a Sale and Leaseback Transaction if, after giving effect thereto, the sum
of: (i) the amount of all Debt secured by all Liens incurred on or after the
date of the Indenture and otherwise prohibited by the Indenture and (ii) the
Attributable Value of Sale and Leaseback Transactions entered into on or after
the date of the Indenture and otherwise prohibited by the Indenture does not
exceed 15% of Consolidated Net Tangible Assets. (Section 1008).
In the event the Issuer ceases to be a Subsidiary of the Guarantor, the
covenants described above will apply not only to the Guarantor but also to the
Issuer, as if it became the Guarantor.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Guarantor will not, and will not permit any Subsidiary to, enter into any
Sale and Leaseback Transaction (except for a period not exceeding 36 months)
unless (i) the Guarantor or such Subsidiary would be entitled to enter into such
Sale and Leaseback Transaction pursuant to the provisions described in the third
paragraph under "Limitation on Liens" without equally and ratably securing the
Notes; (ii) the Guarantor or a Subsidiary of the Guarantor applies, within 180
days after the related Sale Transaction, an amount equal to the Net Available
Proceeds of such Sale Transaction to the redemption of Notes or other debt of
the Issuer that ranks PARI PASSU with the Notes in right of payment; or (iii)
the transaction is solely between the Guarantor and a Wholly Owned Subsidiary or
between Wholly Owned Subsidiaries for as long as such Subsidiaries are Wholly
Owned Subsidiaries. (Section 1009).
In the event the Issuer ceases to be a Subsidiary of the Guarantor, the
covenants described above will apply not only to the Guarantor but also to the
Issuer, as if it became the Guarantor.
16
<PAGE>
CERTAIN DEFINITIONS
The Indenture will include, among others, the following definitions:
"Adjusted Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such date.
"Attributable Value" means, as to any lease under which any Person is at the
time liable, other than a Capital Lease Obligation, and at any date as of which
the amount thereof is to be determined, the total net amount of rent required to
be paid by such Person under such lease during the remaining term thereof as
determined in accordance with generally accepted accounting principles,
discounted from the last date of such term to the date of determination at a
rate per annum equal to the discount rate that would be applicable to a Capital
Lease Obligation with like term in accordance with generally accepted accounting
principles. The net amount of rent required to be paid under any such lease for
any such period will be the aggregate amount of rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
insurance, taxes, assessments, utility, operating and labor costs and similar
charges. In the case of any lease that is terminable by the lessee upon the
payment of a penalty, such net amount will also include the amount of such
penalty, but no rent will be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated. "Attributable
Value" means, as to a Capital Lease Obligation under which any Person is at the
time liable and at any date as of which the amount thereof is to be determined,
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Capital Lease Obligation" of any Person means the obligation to pay rent or
other payment amounts under a lease of (or other Debt arrangements conveying the
right to use) real or personal property of such Person that is required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation will be deemed to be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Comparable Treasury Issue" means the United States Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term of
the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the
average of the Reference Treasury Dealer Quotations for such date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(ii) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Consolidated Net Tangible Assets" means all assets, less (i) all current
liabilities (excluding any indebtedness for borrowed money having a maturity of
less than 12 months from the date of the most recent consolidated balance sheet
of the Guarantor but which by its terms is renewable or extendable beyond 12
months from such date at the option of the borrower), (ii) the net book value of
all licenses, patents, patent applications, copyrights, trademarks, trade names,
goodwill, non-compete agreements, organizational expenses and other like
intangibles, (iii) all unamortized Debt discount and expense, and (iv) all
proper reserves, including all reserves for depreciation, obsolescence,
depletion and amortization of properties, of the Guarantor and its subsidiaries
after eliminating inter-company items and including appropriate deductions for
any minority interest, as determined on a consolidated basis in accordance with
generally accepted accounting principles; PROVIDED, HOWEVER, that no effect will
be given to any adjustments on or after the date of the Indenture to the
accounting books and records of the Guarantor in accordance with Accounting
Principles Board Opinions Nos. 16 and 17 (or successor opinions thereto) or
otherwise resulting from the acquisition of control of the Guarantor by another
Person.
17
<PAGE>
"Debt" means (without duplication), with respect to any Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, and (vi) all
Guaranties by such Person of every obligation of the type referred to in Clauses
(i) through (v) of another Person.
"Guaranty" by any Person means any obligation, contingent or otherwise, of such
Person guaranteeing any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and includes any obligation of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt, (ii) to purchase
property, securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt (and "Guaranteed,"
"Guaranteeing" and "Guarantor" have meanings correlative to the foregoing);
PROVIDED, HOWEVER, that a Guaranty by any Person will not include endorsements
by such Person for collection or deposit, in either case in the ordinary course
of business.
"Lien" means, with respect to any property or assets, any mortgage or deed of
trust, pledge, hypothecation, assignment, security interest, lien, charge,
encumbrance, easement or other security agreement of any kind or nature
whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Net Available Proceeds" from any Sale Transaction by any Person means cash or
readily marketable cash equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but excluding
any consideration received in the form of assumption of Debt or other
obligations by others or received in any other noncash form) therefrom by such
Person, net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred and all federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such Sale
Transaction, (ii) all payments made by such Person or its Subsidiaries on any
Debt that is secured by a Lien on the property or assets so disposed of in
accordance with the terms of such Lien or that must, by the terms of such Lien,
or in order to obtain a necessary consent to such Sale Transaction, or by
applicable law, be repaid out of the proceeds from such Sale Transaction, and
(iii) all distributions and other payments made to third parties (other than
Subsidiaries) in respect of minority or joint venture interests as a result of
such Sale Transaction.
"Permitted Receivables Financing" means any program for the transfer without
recourse (other than customary limited recourse) by the Guarantor or any of its
Subsidiaries to any buyer, purchaser or lender of interests in accounts
receivable, so long as (a) such program is intended by the parties thereto to be
treated (whether or not such treatment is ultimately disallowed) as an "off
balance sheet" transaction and (b) the aggregate outstanding amount of
receivables transferred by the Guarantor and its Subsidiaries pursuant to such
program shall not exceed $500,000,000 at any one time.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Issuer to
serve as Quotation Agent.
"Reference Treasury Dealer" means (i) J.P. Morgan Securities Inc., Salomon
Brothers Inc, NationsBanc Montgomery Securities LLC and their respective
successors; PROVIDED, HOWEVER, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Issuer shall substitute therefor another Primary Treasury Dealer,
and (ii) any other Primary Treasury Dealer selected by the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Issuer, of the bid and asked prices for the Comparable Treasury
18
<PAGE>
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day (as defined in the Indenture) preceding such redemption date.
"Sale and Leaseback Transaction" of any Person means an arrangement with any
lender or investor or to which such lender or investor is a party providing for
the leasing by such Person of any property or assets of such Person which has
been or is being sold, conveyed, transferred or otherwise disposed of by such
Person more than 270 days after the acquisition thereof or the completion of
construction or commencement of operation thereof to such lender or investor or
to any person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or assets. The stated maturity of such
arrangement will be deemed to be the date of the last payment of rent or any
other amount due under such arrangement prior to the first date on which such
arrangement may be terminated by the lessee without payment of a penalty.
"Sale Transaction" means any sale, conveyance, transfer or other disposition of
the kind referred to in the first sentence of the definition of "Sale and
Leaseback Transaction."
"Subsidiary" of any Person means any corporation, partnership, limited liability
company, trust or other entity as to which more than 50% of the voting power of
its outstanding capital stock or other ownership interests is owned, directly or
indirectly, by such Person, by one or more other Subsidiaries of such Person or
by such Person and one or more other Subsidiaries of such Person. Unless
otherwise indicated, any reference to a Subsidiary means a Subsidiary of the
Guarantor.
"Wholly Owned Subsidiary" of any Person means any corporation, partnership,
limited liability company, trust or other entity as to which 100% of the voting
power of its outstanding capital stock or other ownership interests is owned,
directly or indirectly, by such Person, by one or more other Wholly Owned
Subsidiaries of such Person or by such Person and one or more other Wholly Owned
Subsidiaries of such Person. Unless otherwise indicated, any reference to a
Wholly Owned Subsidiary means a Wholly Owned Subsidiary of the Guarantor.
(Section 101).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each of the Guarantor and the Issuer will not merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of its assets (determined on a
consolidated basis with respect to the Guarantor or the Issuer, as the case may
be, and its Subsidiaries taken as a whole), unless (i) either (x) the Guarantor
or the Issuer, as the case may be, is the continuing Person or (y) the
continuing Person is a corporation, partnership, trust, limited liability
company or other entity organized and validly existing under the laws of any
domestic jurisdiction and expressly assumes the Guarantor's or the Issuer's, as
the case may be, obligations on the Notes and under the Indenture, (ii)
immediately after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, with respect to the Notes shall have occurred and be continuing, (iii)
if, as a result of the transaction, property of the Guarantor or the Issuer, as
the case may be, or any Subsidiary would become subject to a Lien, the
incurrence of which would not be permitted under the limitation on Liens
described above under "Restrictive Covenants," the Guarantor or the Issuer, as
the case may be, takes such steps as are necessary to cause the Notes to be
secured equally and ratably with (or prior to) the Debt secured by such Lien as
provided in such limitation, and (iv) certain other conditions set forth in the
Indenture are met. (Section 801).
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the Indenture
with respect to Notes: (a) failure by the Issuer to pay principal of or any
premium on any Note when due, PROVIDED that failure by the Issuer to make such a
payment will not constitute an Event of Default if the Guarantor makes such
payment as required when due; (b) failure by the Issuer to pay any interest on
any Notes when due, continued for 30 days, PROVIDED that failure by the Issuer
to make such a payment will not constitute an Event of Default if the Guarantor
makes such payment as required during such 30-day period; (c) failure to perform
any other covenant of the Guarantor or the Issuer in the Indenture, continued
for 90 days after written notice has been given by the Trustee, or the Holders
of at least 25% in principal amount of the Outstanding Notes, as provided in the
Indenture; (d) a default or
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<PAGE>
defaults under any note(s) or other evidence(s) of Debt, or any agreement(s) or
instrument(s) under which there may be issued or by which there may be secured
or evidenced any Debt, of the Guarantor or any Subsidiary having a principal
amount outstanding, individually or in the aggregate, of at least $25 million,
and whether existing on or created after the date of the Indenture, which
default or defaults (i) constitute a failure to pay at least $25 million of the
principal of such Debt when due (unless such default is waived or cured within
30 days after the expiration of any applicable grace period) or (ii) have
resulted in acceleration of any portion of such Debt having an aggregate
principal amount equal to or in excess of $25 million, in each case (i) and
(ii), without the overdue or accelerated portion of such Debt having been
discharged, or without such acceleration having been rescinded or annulled,
within 30 days after written notice has been given by the Trustee or the Holders
of at least 25% in aggregate principal amount of the Outstanding Notes as
provided in the Indenture; and (e) certain events in bankruptcy, insolvency or
reorganization of the Guarantor or any Subsidiary. (Section 501).
If an Event of Default (other than an Event of Default described in clause (e)
above) with respect to the Notes at the time Outstanding shall occur and be
continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Notes by notice as provided in the Indenture
may declare the principal amount of (together with accrued interest on) all the
Notes to be due and payable immediately. If an Event of Default described in
clause (e) above with respect to the Notes at the time Outstanding shall occur,
the principal amount of (together with accrued interest on) all the Notes will
automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. After any such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of the Outstanding Notes may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, have been cured or waived as provided in
the Indenture. (Section 502). For information as to waiver of defaults, see
"Modification and Waiver."
Subject to the provisions of the Indenture relating to the duties of the Trustee
in case an Event of Default shall occur and be continuing, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity. (Section 603). Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Notes will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. (Section 512).
No Holder of a Note will have any right to institute any proceeding with respect
to the Indenture, or for the appointment of a receiver or a trustee, or for any
other remedy thereunder, unless (i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default with respect to the
Notes, (ii) the Holders of at least 25% in aggregate principal amount of the
Outstanding Notes have made written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and (iii) the Trustee has failed to institute such proceeding, and has
not received from the Holders of a majority in aggregate principal amount of the
Outstanding Notes a direction inconsistent with such request, within 90 days
after such notice, request and offer. However, such limitations do not apply to
a suit instituted by a Holder of a Note for the enforcement of payment of the
principal of or any premium or interest on such Note on or after the applicable
due date specified in such Note. (Sections 507 and 508).
DEFEASANCE AND COVENANT DEFEASANCE
The Issuer may elect, at its option at any time, to have the provisions of
Section 1202, relating to defeasance and discharge of indebtedness, or Section
1203, relating to defeasance of certain restrictive covenants in the Indenture,
applied to the Notes. (Section 1201).
DEFEASANCE AND DISCHARGE
The Indenture will provide that, upon the Issuer's exercise of its option to
have Section 1202 applied to the Outstanding Notes, the Issuer and the Guarantor
will be discharged from all their obligations with respect to such Notes (except
for certain obligations to exchange or register the transfer of Notes, to
replace stolen, lost or mutilated Notes to maintain paying agencies and to hold
moneys for payment in trust) upon the deposit in trust for the benefit of the
Holders of such Notes of money or U.S. Government Obligations, or both, which,
through
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<PAGE>
the payment of principal and interest in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay the principal of
and interest on such Notes on the Stated Maturity in accordance with the terms
of the Indenture and the Notes. Such defeasance or discharge may occur only if,
among other things, the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that the Issuer has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law, in either case to the effect that Holders of such
Notes will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge were not to occur.
(SectionSection 1202 and 1204).
DEFEASANCE OF CERTAIN COVENANTS
The Indenture will provide that, upon the Issuer's exercise of its option to
have Section 1203 applied to the Outstanding Notes, the Issuer and the Guarantor
may omit to comply with the restrictive covenants described above under
"Restrictive Covenants" and such omission will be deemed not to be an Event of
Default with respect to the Notes. The Issuer, in order to exercise such option,
will be required to deposit, in trust for the benefit of the Holders of such
Notes, money or U.S. Government Obligations, or both, which, through the payment
of principal and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and interest
on such Notes on the Stated Maturity in accordance with the terms of the
Indenture and the Notes. The Issuer will also be required, among other things,
to deliver to the Trustee an Opinion of Counsel to the effect that Holders of
such Notes will not recognize gain or loss for federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and defeasance were not to
occur. In the event the Issuer exercised this option with respect to the
Outstanding Notes and such Notes were declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations so deposited in trust would be sufficient to pay amounts due on such
Notes at the Stated Maturity but may not be sufficient to pay amounts due on
such Notes upon any acceleration resulting from such Event of Default. In such
case, the Issuer and the Guarantor would remain liable for such payments.
(SectionSection 1203 and 1204).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Issuer and the
Guarantor with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Notes; PROVIDED, HOWEVER, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Note
affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, (b) reduce the principal amount of, or
interest on, any Note, (c) change the place or currency of payment of principal
of, or interest on, any Note, (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any Note, (e) reduce the
above-stated percentage of Outstanding Notes necessary to modify or amend the
Indenture, (f) reduce the percentage of aggregate principal amount of
Outstanding Notes necessary for waiver of compliance with certain provisions of
the Indenture or for waiver of certain defaults or (g) change the obligations of
the Guarantor under the Guarantee with respect to any of the obligations of the
Issuer that may not be modified or amended without the consent of each Holder as
aforesaid. (Section 902).
The Holders of a majority in aggregate principal amount of the Outstanding Notes
may waive compliance by the Company with certain restrictive provisions of the
Indenture. (Section 1010). The Holders of a majority in aggregate principal
amount of the Outstanding Notes may waive any past default under the Indenture,
except a default in the payment of principal or interest. (Section 513).
The Guarantor and the Issuer may amend or supplement the Indenture without
notice to or the consent of any Holder, in order, among other things: (1) to
cure any ambiguity, defect or inconsistency in the Indenture, PROVIDED that such
amendments or supplements shall not materially and adversely affect the
interests of the Holders; (2) to comply with any requirements of the Commission
in connection with the qualification of the Indenture under the Trust Indenture
Act; (3) to evidence and provide for the acceptance of appointments under the
Indenture with respect to the Securities by a successor Trustee; and (4) to make
any change that does not materially and adversely affect the interests of the
Holders.
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UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement,
dated , 1998 (the "Underwriting Agreement"), the Issuer has agreed to
sell to each of the underwriters named below (the "Underwriters"), and each of
such Underwriters has severally agreed to purchase from the Issuer the
respective principal amount of Notes set forth opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT
OF NOTES
<S> <C>
--------------
NAME
- --------------------------------------------------------------------------------------------------
J.P. Morgan Securities Inc........................................................................
Salomon Brothers Inc..............................................................................
NationsBanc Montgomery Securities LLC.............................................................
--------------
Total............................................................................................. $ 150,000,000
--------------
--------------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the Underwriters
are committed to take and pay for all of the Notes, if any are taken.
The Company and the Issuer have been advised by the Underwriters that they
initially propose to offer the Notes directly to the public at the public
offering price set forth on the cover page of this Prospectus and to certain
dealers at such price less a concession not in excess of % of the principal
amount of the Notes. The Underwriters may allow, and such dealers may reallow, a
concession not in excess of % of the principal amount of the Notes on sales
to certain other dealers. After the initial public offering of the Notes, the
public offering price and such concessions to dealers may be changed by the
Underwriters.
The Notes are a new issue of securities with no established trading market. The
Company and the Issuer have been advised by the Underwriters that the
Underwriters currently intend to make a market for the Notes, but are not
obligated to do so and may discontinue market making at any time without notice.
No assurance can be given as to the liquidity of the trading market for the
Notes.
It is expected that in the aggregate up to approximately 20% of the net proceeds
of the offering of the Notes will be used to repay loans made to the Issuer by
Morgan Guaranty Trust Company of New York, an affiliate of J.P. Morgan
Securities Inc., and NationsBank, N.A., an affiliate of NationsBanc Montgomery
Securities LLC, under the Issuer's New Credit Facility. See "Use of Proceeds."
Under the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "NASD"), special considerations apply to a public offering of securities
where more than 10% of the net proceeds thereof will be paid to a participating
underwriter or any of its affiliates. Therefore, the offering of the Notes is
being conducted pursuant to Rule 2710(c)(8) of the NASD Conduct Rules, which
establishes certain procedural safeguards in connection with offerings in such
circumstances in which NASD member firms intend to participate and where more
than 10% of the offering proceeds are to be paid to such member firms or their
affiliates.
The Company and the Issuer have agreed, severally and jointly, to indemnify the
Underwriters against certain liabilities, including civil liabilities under the
Securities Act, or to contribute to payments which the Underwriters may be
required to make in respect thereof.
In connection with the offering of the Notes, the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Notes. Specifically, the Underwriters may overallot in connection with the
offering of the Notes, creating a syndicate short position. In addition, the
Underwriters may bid for, and purchase, Notes in the open market to cover
syndicate short positions or to stabilize the price of the Notes. Finally, the
underwriting syndicate may reclaim selling concessions allowed for distributing
the Notes in the offering of the Notes, if the syndicate repurchases previously
distributed Notes in syndicate covering transactions, stabilization transactions
or otherwise. Any of these activities may stabilize or maintain the market price
of the Notes above
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<PAGE>
independent market levels. The Underwriters are not required to engage in any of
these activities, and may end any of them at any time.
In the ordinary course of their respective businesses, the Underwriters and
their affiliates have engaged, are engaging and may in the future engage, in
commercial banking and investment banking transactions with the Company, the
Issuer and their respective affiliates.
FORWARD LOOKING STATEMENTS
Certain statements in this Prospectus and in documents incorporated by reference
herein contain forward-looking statements that are based on current
expectations, estimates and projections and management's beliefs and
assumptions. Words such as "believes," "expects," "intends," "plans,"
"estimates," or variations of such words and similar expressions, are intended
to identify such forward-looking statements. These statements are not guarantees
of future performance and involve certain risks and uncertainties which are
difficult to predict. Therefore, actual outcomes and results may differ
materially from what is expressed or forecasted in such forward-looking
statements. The Company undertakes no obligation to update publicly any
forward-looking statements, whether as a result of new information, future
events or otherwise.
Such risks and uncertainties include, but are not limited to, the impact of
competitive products and pricing, increased investment to support product
introductions and enter new markets, currency fluctuations, market acceptance of
new products and programs, product transitions by the Company and its
competitors, management of inventory levels, production and supply difficulties,
intellectual property infringement claims and expenses, the outcome of pending
and future litigation or governmental proceedings, changes in a country's or
region's political or economic conditions, and other risks described herein and
in other filings by the Company with the Commission.
VALIDITY OF NOTES AND GUARANTEE
The validity of the Notes and the Guarantee will be passed upon for the Company
by Vincent J. Cole, Esq., General Counsel of the Issuer and the Guarantor, and
for the Underwriters by Sullivan & Cromwell, New York, New York.
EXPERTS
The consolidated statements of financial position as of December 31, 1996 and
1997 and the consolidated statements of earnings, cash flows and stockholders'
equity for each of the three years in the period ended December 31, 1997
incorporated by reference in this Prospectus have been incorporated by reference
herein in reliance on the report of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses of the issuance and distribution of the
Notes being registered, including fees and expenses incurred by the Company and
the Issuer, other than any underwriting compensation.
<TABLE>
<CAPTION>
<S> <C>
Registration fee............................................................................ $ 44,250
Accounting fees and expenses................................................................ $ 40,000
Rating agency fees.......................................................................... $ 150,000
Printing and engraving...................................................................... $ 50,000
Trustee's fees and expenses................................................................. $ 10,000
Blue Sky fees and expenses (including counsel fees)......................................... $ 35,000
Miscellaneous expenses...................................................................... $ 15,000
----------
Total................................................................................. $ 344,250
----------
----------
</TABLE>
All of the above expenses of the Offering will be borne by the Issuer.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding; PROVIDED that such officer or
director acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
Article VI of the By-Laws of the Company and the Issuer provide for
indemnification by the Company or the Issuer, as the case may be, of its
directors and officers to the full extent permitted by the Delaware Law.
Pursuant to Section 145 of the Delaware Law, the Company has purchased insurance
on behalf of its present and former directors and officers against any liability
asserted against or incurred by them in such capacity or arising out of their
status as such.
Pursuant to specific authority granted by Section 102 of the Delaware Law,
Article FIFTH of the Company's Third Restated Certificate of Incorporation
contains the following provision regarding limitation of liability of directors
and officers:
"(e) No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of his or her fiduciary
duty as a director, PROVIDED that nothing contained in this Third Restated
Certificate of Incorporation shall eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of
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<PAGE>
the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit."
Pursuant to specific authority granted by Section 102 of the Delaware Law,
Article SEVENTH of the Issuer's Certificate of Incorporation contains the
following provision regarding limitation of liability of directors and officers:
"No director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived
an improper personal benefit.
Pursuant to an indemnification agreement with certain former stockholders, and
under the Third Restated Certificate of Incorporation, the Company has agreed to
indemnify the members of the Company's Board of Directors to the fullest extent
allowable under applicable Delaware law. See "Underwriting."
Reference is hereby made to Section 7 of the Underwriting Agreement filed as
Exhibit 1.1 for certain indemnification arrangements.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
1. (A) EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION OF EXHIBITS
- ----------- --------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement.(3)
3.1 Third Restated Certificate of Incorporation of Lexmark International Group, Inc. (the "Company").(1)
3.2 By-Laws of the Company, as amended and restated as of October 26, 1995, and amended by Amendment No. 1
dated as of February 13, 1997.(2)
3.3 Certificate of Incorporation of Lexmark International, Inc. (the "Issuer"), as amended.
3.4 By-Laws of the Issuer, as amended and restated as of October 26, 1995, and amended by Amendment No. 1
dated as of February 13, 1997.
4.1 Indenture among the Company, the Issuer and The Bank of New York, as Trustee.(3)
4.2 Form of Senior Note due 2008 (included in Exhibit 4.1).(3)
4.3 Form of Guarantee of Senior Note due 2008 (included in Exhibit 4.1).(3)
5 Opinion of Vincent J. Cole, Esq. regarding the validity of the securities being registered.(3)
12.1 Computation of ratio of earnings to fixed charges.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Vincent J. Cole, Esq. (included in the Opinion of Vincent J. Cole, Esq. filed as
Exhibit 5).(3)
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York, as
Trustee under the Indenture.(3)
</TABLE>
- ------------------------
(1) Incorporated herein by reference to the Company's Form S-1 Registration
Statement, Amendment No. 1 (Registration No. 33-97218) filed with the
Commission on October 27, 1995.
(2) Incorporated herein by reference to the Company's Annual Report on Form 10-K
(File No. 1-14050) for the Fiscal Year ended December 31, 1996.
(3) To be filed by Amendment.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Act") may be permitted to directors, officers and controlling persons
of the registrants pursuant to the foregoing provisions, or otherwise, the
II-2
<PAGE>
registrants have been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrants of expenses incurred
or paid by a director, officer or controlling person of the registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Act, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective;
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(3) For purposes of determining any liability under the Act, each filing of
the annual report of Lexmark International Group, Inc. pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lexington, Commonwealth of Kentucky, on ,
1998.
LEXMARK INTERNATIONAL GROUP, INC.
By /s/ MARVIN L. MANN
-----------------------------------------
Name: Marvin L. Mann
Title: Chairman of the Board & Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed below by the following persons in the following capacities on
, 1998.
SIGNATURE TITLE
- ------------------------------ ---------------------------
Chairman of the Board/Chief
/s/ MARVIN L. MANN Executive Officer
- ------------------------------ (Principal Executive
Marvin L. Mann Officer)
Vice President/Chief
/s/ GARY E. MORIN Financial Officer
- ------------------------------ (Principal Financial
Gary E. Morin Officer)
/s/ DAVID L. GOODNIGHT Corporate Controller
- ------------------------------ (Principal Accounting
David L. Goodnight Officer)
/s/ B. CHARLES AMES Director
- ------------------------------
B. Charles Ames
/s/ RODERICK H. CARNEGIE Director
- ------------------------------
Roderick H. Carnegie
/s/ FRANK T. CARY Director
- ------------------------------
Frank T. Cary
/s/ PAUL J. CURLANDER Director
- ------------------------------
Paul J. Curlander
/s/ WILLIAM R. FIELDS Director
- ------------------------------
William R. Fields
/s/ DONALD J. GOGEL Director
- ------------------------------
Donald J. Gogel
/s/ RALPH E. GOMORY Director
- ------------------------------
Ralph E. Gomory
/s/ STEPHEN R. HARDIS Director
- ------------------------------
Stephen R. Hardis
II-4
<PAGE>
SIGNATURE TITLE
- ------------------------------ ---------------------------
/s/ MICHAEL J. MAPLES Director
- ------------------------------
Michael J. Maples
/s/ MARTIN D. WALKER Director
- ------------------------------
Martin D. Walker
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Issuer registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lexington, Commonwealth of Kentucky, on ,
1998.
LEXMARK INTERNATIONAL, INC.
By /s/ MARVIN L. MANN
-----------------------------------------
Name: Marvin L. Mann
Title: Chairman of the Board & Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed below by the following persons in the following capacities on
, 1998.
SIGNATURE TITLE
- ------------------------------ ---------------------------
Chairman of the Board/Chief
/s/ MARVIN L. MANN Executive Officer
- ------------------------------ (Principal Executive
Marvin L. Mann Officer)
Vice President/Chief
/s/ GARY E. MORIN Financial Officer
- ------------------------------ (Principal Financial
Gary E. Morin Officer)
/s/ DAVID L. GOODNIGHT Corporate Controller
- ------------------------------ (Principal Accounting
David L. Goodnight Officer)
/s/ B. CHARLES AMES Director
- ------------------------------
B. Charles Ames
/s/ RODERICK H. CARNEGIE Director
- ------------------------------
Roderick H. Carnegie
/s/ FRANK T. CARY Director
- ------------------------------
Frank T. Cary
/s/ PAUL J. CURLANDER Director
- ------------------------------
Paul J. Curlander
/s/ WILLIAM R. FIELDS Director
- ------------------------------
William R. Fields
/s/ DONALD J. GOGEL Director
- ------------------------------
Donald J. Gogel
/s/ RALPH E. GOMORY Director
- ------------------------------
Ralph E. Gomory
/s/ STEPHEN R. HARDIS Director
- ------------------------------
Stephen R. Hardis
II-6
<PAGE>
SIGNATURE TITLE
- ------------------------------ ---------------------------
/s/ MICHAEL J. MAPLES Director
- ------------------------------
Michael J. Maples
/s/ MARTIN D. WALKER Director
- ------------------------------
Martin D. Walker
II-7
<PAGE>
CERTIFICATE OF INCORPORATION
OF
NEW YORK LIBRA CORPORATION
ARTICLE FIRST
The name of the corporation is New York Libra Corporation (the
"Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle. The
name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
the State of Delaware.
ARTICLE FOURTH
The total number of shares of stock which the Corporation shall have
authority to issue is 1,000 shares of the par value of $1.00 per share. All
such shares shall be of one class and shall be designated "Common Stock".
ARTICLE FIFTH
The name and mailing address of the sole incorporator is as follows:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Frank P. Nocco Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, N.Y. 10019
</TABLE>
<PAGE>
ARTICLE SIXTH
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation and of its directors and stockholders, it is further
provided that:
(a) the number of directors of the Corporation shall be fixed by, or
in the manner provided in, the By-laws of the Corporation;
(b) in furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered to make, alter, amend or repeal the By-laws of the
Corporation in any manner not inconsistent with the laws of the State of
Delaware or this Certificate of Incorporation, subject to the power of the
stockholders of the Corporation having voting power to alter, amend or
repeal the By-laws of the Corporation;
(c) in addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the
State of Delaware, this Certificate of Incorporation and the By-laws of the
Corporation;
(d) any director or any officer elected or appointed by the
stockholders or by the Board of Directors, or any Committee thereof, may
be removed at any time by a unanimous consent of the stockholders or in such
other manner as shall be provided in the By-laws of the Corporation; and
(e) unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
ARTICLE SEVENTH
No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for
<PAGE>
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived an improper personal benefit.
Any repeal or modification of this Article SEVENTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or modification.
ARTICLE EIGHTH
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for
such purpose, if:
(a) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the board or committee
in good faith authorizes the contract or transaction by the
affirmative votes of a majority of disinterested directors, even
though the disinterested directors be less than a quorum;
(b) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the shareholders; or
(c) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the shareholders.
Common or interested directors shall be counted in determining the
presence of a quorum at a meeting of the
<PAGE>
Board of Directors or of a committee which authorizes such contract or
transaction. No director or officer shall be liable to account to the
Corporation for any profit realized by him from or through such contract or
transaction solely by reason of the fact that he or any other corporation,
partnership, association, or other organization in which he is a director or
officer, or has a financial interest, was interested in such contract or
transaction.
ARTICLE NINTH
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgements, fines and amounts in connection with
such action, suit or proceeding, in accordance with the laws of the State of
Delaware, and to the full extent permitted by said laws except as the By-laws
of the Corporation may otherwise provide. Such indemnification shall not be
deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, including insurance purchased and
maintained by the Corporation, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE TENTH
The Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation (including provisions as may hereafter be added or inserted in
this Certificate of Incorporation as authorized by the laws of the State of
Delaware) in the manner now or hereafter prescribed by law; and all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Certificate
of Incorporation in its present form or as
<PAGE>
hereafter amended are granted subject to the right reserved in this Article
TENTH.
IN WITNESS WHEREOF, I, Frank P. Nocco, the sole incorporator of New York
Libra Corporation, have executed this Certificate of Incorporation on this
24th day of May, 1990, and DO HEREBY CERTIFY under the penalties of perjury
that the facts stated in this Certificate of Incorporation are true.
/s/ Frank P. Nocco
--------------------------
Frank P. Nocco
Sole Incorporator
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NEW YORK LIBRA CORPORATION
NEW YORK LIBRA CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"DGCL"), hereby certifies as follows:
FIRST: That the Board of Directors of said corporation by unanimous
written consent of its members, filed with the minutes of the Board, adopted
a resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
"RESOLVED that the Board of Directors deems it advisable and in the
best interests of the Corporation that the Certificate of Incorporation of
the Corporation be, and it hereby is, amended (the "Amendment") by changing
Article FIRST thereof so that, as amended, said Article shall be and read as
follows:
"ARTICLE FIRST
The name of the corporation is IBM Information Products Corporation
(the "Corporation")."
SECOND: That in lieu of a meeting and vote of stockholders, the sole
stockholder of said corporation has given its unanimous written consent to
said amendment in accordance with Section 228(a) of the DGCL.
<PAGE>
THIRD: That the amendment set forth above has been duly adopted in
accordance with the applicable provisions of Sections 242 and 228 (a) of the
DGCL.
IN WITNESS WHEREOF, this Certificate of Amendment to Certificate of
Incorporation of the Corporation has been signed by the President and
attested to by the Assistant Secretary of the Corporation this 13th day of
December, 1990.
NEW YORK LIBRA CORPORATION
by: /s/ Marvin L. Mann
----------------------
Name: Marvin L. Mann
Title: President
Attest:
By: /s/ John E. Hickey
--------------------------
Name: John E. Hickey
Title: Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
IBM INFORMATION PRODUCTS CORPORATION
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
IBM INFORMATION PRODUCTS CORPORATION, a corporation organized under the
General Corporation Law of the State of Delaware (the
"Corporation"), hereby certifies as follows:
1. The Certificate of Incorporation of the Corporation is hereby amended,
as authorized by Section 242 of the General Corporation Law of the State of
Delaware to change the name of the Corporation to LEXMARK INTERNATIONAL, INC.
2. To effect such amendment, ARTICLE FIRST of the Certificate of
Incorporation of the Corporation is hereby amended to read in its entirety as
follows:
"ARTICLE FIRST
The name of the corporation is Lexmark International, Inc.
(the "Corporation")."
2. The amendment set forth was duly adopted by written consent of the
Board of Directors of the
<PAGE>
Corporation in accordance with the provisions of Sections 242 and 141 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Joseph L. Rice, III, its Vice President, and attested by Donald J.
Gogel, its Secretary, this 27th day of March, 1991.
IBM INFORMATION PRODUCTS CORPORATION
By: /s/ Joseph L. Rice, III
--------------------------
Joseph L. Rice, III
Vice President
ATTEST:
By: /s/ Donald J. Gogel
--------------------------
Donald J. Gogel
Secretary
<PAGE>
EXHIBIT 3.4
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
LEXMARK INTERNATIONAL, INC.
BY-LAWS
As Amended and Restated as of October 26, 1995
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
LEXMARK INTERNATIONAL, INC.
BY-LAWS
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.3. Notice of Meetings; Waiver. . . . . . . . . . . . . . . . . . . . . . .2
1.4. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.5. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.6. Voting by Ballot. . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.7. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.8. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.9. Organization; Procedure . . . . . . . . . . . . . . . . . . . . . . . .4
1.10. Consent of Stockholders in Lieu of Meeting. . . . . . . . . . . . . . .4
ARTICLE II BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . .5
2.1. General Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.2. Number and Term of Office . . . . . . . . . . . . . . . . . . . . . . .5
2.3. Election of Directors . . . . . . . . . . . . . . . . . . . . . . . . .5
2.4. Annual and Regular Meetings . . . . . . . . . . . . . . . . . . . . . .5
2.5. Special Meetings; Notice. . . . . . . . . . . . . . . . . . . . . . . .6
2.6. Quorum; Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2.7. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2.8. Action Without a Meeting. . . . . . . . . . . . . . . . . . . . . . . .7
2.9. Regulations; Manner of Acting . . . . . . . . . . . . . . . . . . . . .7
2.10. Action by Telephonic Communications . . . . . . . . . . . . . . . . . .8
2.11. Resignations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.12. Removal of Directors. . . . . . . . . . . . . . . . . . . . . . . . . .8
2.13. Vacancies and Newly Created Directorships . . . . . . . . . . . . . . .8
2.14. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.15. Reliance on Accounts and Reports, etc.. . . . . . . . . . . . . . . . .9
i
<PAGE>
SECTION PAGE
ARTICLE III EXECUTIVE COMMITTEE AND OTHER COMMITTEES. . . . . . . . . . . .9
3.1. How Constituted . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.2. Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4. Quorum and Manner of Acting . . . . . . . . . . . . . . . . . . . . . 12
3.5. Action by Telephonic Communications . . . . . . . . . . . . . . . . . 13
3.6. Absent or Disqualified Members. . . . . . . . . . . . . . . . . . . . 13
3.7. Resignations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.8. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV OFFICERS AND AGENTS . . . . . . . . . . . . . . . . . . . . . 14
4.1. Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2. Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3. Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4. Removal and Resignation; Vacancies. . . . . . . . . . . . . . . . . . 14
4.5. Authority and Duties of Officers. . . . . . . . . . . . . . . . . . . 15
4.6. The Chairman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.7. The President and Chief Executive Officer . . . . . . . . . . . . . . 15
4.8. Vice Presidents and Corporate Agents. . . . . . . . . . . . . . . . . 16
4.9. The Vice President & Chief Financial Officer. . . . . . . . . . . . . 16
4.10. The Controller. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.11. The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.12. The Vice President and General Counsel. . . . . . . . . . . . . . . . 17
4.13. The Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.14. Additional Officers and Agents. . . . . . . . . . . . . . . . . . . . 19
4.15. Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1. Certificates of Stock, Uncertificated Shares. . . . . . . . . . . . . 19
5.2. Signatures; Facsimile . . . . . . . . . . . . . . . . . . . . . . . . 20
5.3. Lost, Stolen or Destroyed Certificates. . . . . . . . . . . . . . . . 20
5.4. Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.5. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.6. Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . 22
5.7. Transfer Agent and Registrar. . . . . . . . . . . . . . . . . . . . . 22
ii
<PAGE>
SECTION PAGE
ARTICLE VI INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 22
6.1. Nature of Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.2. Successful Defense. . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.3. Determination That Indemnification Is Proper. . . . . . . . . . . . . 23
6.4. Advance Payment of Expenses . . . . . . . . . . . . . . . . . . . . . 24
6.5. Procedure for Indemnification of Directors and Officers . . . . . . . 24
6.6. Survival; Preservation of Other Rights. . . . . . . . . . . . . . . . 25
6.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.8. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 27
8.1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.2. Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.3. Execution of Instruments. . . . . . . . . . . . . . . . . . . . . . . 27
8.4. Corporate Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 28
8.5. Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.6. Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.7. Sale, Transfer, etc. of Securities. . . . . . . . . . . . . . . . . . 29
8.8. Voting as Stockholder . . . . . . . . . . . . . . . . . . . . . . . . 29
8.9. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.10. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.11. Books and Records; Inspection . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IX AMENDMENT OF BY-LAWS. . . . . . . . . . . . . . . . . . . . . 30
9.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE X CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 30
10.1. Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iii
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LEXMARK INTERNATIONAL, INC.
BY-LAWS
As amended and restated as of October 26, 1995
ARTICLE I
STOCKHOLDERS
Section 1.1. ANNUAL MEETINGS. The annual meeting of the stockholders
of Lexmark International, Inc. (the "Corporation") for the election of Directors
and for the transaction of such other business as properly may come before such
meeting shall be held at such place, either within or without the State of
Delaware, and at 10:00 A.M. local time on the last Thursday in April (or, if
such day is a legal holiday, then on the next succeeding business day), or at
such other date and hour, as may be fixed from time to time by resolution of the
Board of Directors and set forth in the notice or waiver of notice of the
meeting. [Sections 211(a), (b).]*
Section 1.2. SPECIAL MEETINGS. Special meetings of the stockholders
may be called at any time by the Chairman or the President and Chief Executive
Officer (or, in the event of the absence or disability of the Chairman and the
President and Chief Executive Officer, by the Vice President & Chief Financial
Officer or, in the event of his absence or disability, any Vice President
designated by the President and Chief Executive Officer to act in the event of
his absence or disability), or by the Board of Directors. A special meeting
shall be called by the Chairman or the
___________________
* Citations are to the General Corporation Law of the State of Delaware as
in effect on September 1, 1995, and are inserted for reference only, and
do not constitute a part of the By-Laws.
<PAGE>
President and Chief Executive Officer (or, in the event of the absence or
disability of the Chairman and the President and Chief Executive Officer, by the
Vice President & Chief Financial Officer or, in the event of his absence or
disability, any Vice President designated by the President and Chief Executive
Officer to act in the event of his absence or disability), or by the Secretary
immediately upon receipt of a written request therefor by stockholders holding
in the aggregate not less than a majority of the outstanding shares of the
Corporation at the time entitled to vote at any meeting of the stockholders. If
such officers or the Board of Directors shall fail to call such meeting within
20 days after receipt of such request, any stockholder executing such request
may call such meeting. Such special meetings of the stockholders shall be held
at such places, within or without the State of Delaware, as shall be specified
in the respective notices or waivers of notice thereof. [Section 211(d).]
Section 1.3. NOTICE OF MEETINGS; WAIVER. The Secretary or any
Assistant Secretary shall cause written notice of the place, date and hour of
each meeting of the stockholders, and, in the case of a special meeting, the
purpose or purposes for which such meeting is called, to be given personally or
by mail, not less than ten nor more than 60 days prior to the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the record of stockholders of the Corporation, or, if
he shall have filed with the Secretary of the Corporation a written request that
notices to him be mailed to some other address, then directed to him at such
other address. Such further notice shall be given as may be required by law.
No notice of any meeting of stockholders need be given to any
stockholder who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
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regular or special meeting of the stockholders need be specified in a written
waiver of notice. The attendance of any stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened. [Sections 222, 229.]
Section 1.4. QUORUM. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
Section 1.5. VOTING. If, pursuant to Section 5.5 of these By-Laws, a
record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share
outstanding in his name on the books of the Corporation at the close of business
on such record date. If no record date has been fixed, then every holder of
record of shares entitled to vote at a meeting of stockholders shall be entitled
to one vote for each share of stock standing in his name on the books of the
Corporation at the close of business on the day next preceding the day on which
notice of the meeting is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. Except
as otherwise required by law or by the Certificate of Incorporation, the vote of
a majority of the shares represented in person or by proxy at any meeting at
which a quorum is present shall be sufficient for the transaction of any
business at such meeting. [Sections 212(a), 216.]
Section 1.6. VOTING BY BALLOT. No vote of the stockholders need be
taken by written ballot or conducted by inspectors of election, unless otherwise
required by law.
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Any vote which need not be taken by ballot may be conducted in any manner
approved by the meeting.
Section 1.7. ADJOURNMENT. If a quorum is not present at any meeting
of the stockholders, the stockholders present in person or by proxy shall have
the power to adjourn any such meeting from time to time until a quorum is
present. Notice of any adjourned meeting of the stockholders of the Corporation
need not be given if the place, date and hour thereof are announced at the
meeting at which the adjournment is taken, PROVIDED that if the adjournment is
for more than 30 days, or if after the adjournment a new record date for the
adjourned meeting is fixed pursuant to Section 5.5 of these By-Laws, a notice of
the adjourned meeting, conforming to the requirements of Section 1.3 of these
By-Laws, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business
may be transacted that might have been transacted on the original date of the
meeting. [Section 222(c).]
Section 1.8. PROXIES. Any stockholder entitled to vote at any
meeting of the stockholders or to express consent to or dissent from corporate
action without a meeting may, by a written instrument signed by such stockholder
or his attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary. Section 212(b), (c).]
4
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Section 1.9. ORGANIZATION; PROCEDURE. At every meeting of
stockholders the presiding officer shall be the Chairman or, in the event of his
absence or disability, the President and Chief Executive Officer or, in the
event of his absence or disability, a presiding officer chosen by a majority of
the stockholders present in person or by proxy. The Secretary, or in the event
of his absence or disability, the Assistant Secretary, if any, or if there be no
Assistant Secretary, in the absence of the Secretary, an appointee of the
presiding officer, shall act as Secretary of the meeting. The order of business
and all other matters of procedure at every meeting of stockholders may be
determined by such presiding officer.
Section 1.10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. To the
fullest extent permitted by law, whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action, such action may be taken without a meeting, without prior
notice and without a vote of stockholders, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder or member who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by law to
the Corporation, written consents signed
5
<PAGE>
by a sufficient number of holders or members to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. [Section 228.]
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. GENERAL POWERS. Except as may otherwise be provided by
law, by the Certificate of Incorporation or by these By-Laws, the property,
affairs and business of the Corporation shall be managed by or under the
direction of the Board of Directors and the Board of Directors may exercise all
the powers of the Corporation. [Section 141(a).]
Section 2.2. NUMBER AND TERM OF OFFICE. The number of Directors
constituting the entire Board of Directors shall be eight, which number may be
modified from time to time by resolution of the Board of Directors, but in no
event shall the number of Directors be less than one. Each Director (whenever
elected) shall hold office until his successor has been duly elected and
qualified, or until his earlier death, resignation or removal.
[Section 141(b).]
Section 2.3. ELECTION OF DIRECTORS. Except as otherwise provided in
Sections 2.12 and 2.13 of these By-Laws, the Directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
Directors is not held on the date designated therefor, the Directors shall cause
the meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of Directors, provided a
6
<PAGE>
quorum is present, the Directors shall be elected by a plurality of the votes
validly cast in such election.
Section 2.4. ANNUAL AND REGULAR MEETINGS. The annual meeting of the
Board of Directors for the purpose of electing officers and for the transaction
of such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time
to time may by resolution provide for the holding of regular meetings (in
addition to such annual meeting) and fix the place (which may be within or
without the State of Delaware) and the date and hour of such meetings. Notice
of regular meetings need not be given, PROVIDED, however, that if the Board of
Directors shall fix or change the time or place of any regular meeting, notice
of such action shall be mailed promptly, or sent by telecopier, telegram, radio
or cable, to each Director who shall not have been present at the meeting at
which such action was taken, addressed to him at his usual place of business, or
shall be delivered to him personally. "PROVIDED FURTHER, however, that the
Chairman shall have the authority to change the time or place of any regular
meeting fixed by the Board of Directors by providing notice to each director in
the manner specified for calling a special meeting pursuant to Section 2.5 of
these By-Laws." Notice of such action need not be given to any Director who
attends the first regular meeting after such action is taken without protesting
the lack of notice to him, prior to or at the commencement of such meeting, or
to any Director who submits a signed waiver of notice, whether before or after
such meeting. [Section 141(g).]
Section 2.5. SPECIAL MEETINGS; NOTICE. Special meetings of the Board
of Directors shall be held whenever called by the Chairman or the President and
Chief Executive Officer or, in the event of the absence or disability of the
Chairman and the President and Chief Executive Officer, by
7
<PAGE>
the Vice President & Chief Financial Officer or, in the event of his absence or
disability, any other Vice President who has been designated by the President
and Chief Executive Officer to act in the event of his absence or disability, at
such place (within or without the State of Delaware), date and hour as may be
specified in the respective notices or waivers of notice of such meetings.
Special meetings of the Board of Directors shall be called by the Chairman or
the President and Chief Executive Officer (or, in the event of the absence or
disability of the Chairman and the President and Chief Executive Officer, by the
Vice President and Chief Financial Officer or, in the event of his absence or
disability, any other Vice President designated by the President and Chief
Executive Officer to act in the event of his absence or disability), or by the
Secretary, promptly upon receipt of a written request therefor by at least three
Directors, and if such officers or the Board of Directors shall fail to call
such meeting within five days after receipt of such request, any Director
executing such request may call such meeting; and any such special meeting shall
be held at such place, within or without the State of Delaware, as shall be
specified in the notice thereof. Special meetings of the Board of Directors may
be called on 24 hours' notice, if notice is given to each Director personally or
by telephone, telecopy or telegram, or on five days' notice, if notice is mailed
to each Director, addressed to him at his usual place of business. Notice of
any special meeting need not be given to any Director who attends such meeting
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any Director who submits a signed waiver of notice, whether
before or after such meeting, and any business may be transacted thereat.
[Sections 141(g), 229.]
Section 2.6. QUORUM; VOTING. At all meetings of the Board of
Directors, the presence of a majority of the total authorized number of
Directors shall constitute a quorum for the transaction of business. Except as
otherwise required by law, the vote of a majority of the Directors
8
<PAGE>
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. [Section 141(b).]
Section 2.7. ADJOURNMENT. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting of the Board of
Directors to another time or place. No notice need be given of any adjourned
meeting unless the time and place of the adjourned meeting are not announced at
the time of adjournment, in which case notice conforming to the requirements of
Section 2.5 of these By-Laws shall be given to each Director.
Section 2.8. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing, and such writing or writings are filed with the minutes of proceedings
of the Board of Directors. [Section 141(f).]
Section 2.9. REGULATIONS; MANNER OF ACTING. To the extent consistent
with applicable law, the Certificate of Incorporation and these By-Laws, the
Board of Directors may adopt such rules and regulations for the conduct of
meetings of the Board of Directors and for the management of the property,
affairs and business of the Corporation as the Board of Directors may deem
appropriate. The Directors shall act only as a Board, and the individual
Directors shall have no power as such.
Section 2.10. ACTION BY TELEPHONIC COMMUNICATIONS. Members of the
Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this provision shall constitute presence
in person at such meeting. [Section 141(i).]
9
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Section 2.11. RESIGNATIONS. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President and Chief Executive Officer or the Secretary. Unless otherwise
specified therein, such resignation shall take effect upon delivery.
[Section 141(b).]
Section 2.12. REMOVAL OF DIRECTORS. Any Director may be removed at
any time, either for or without cause, upon the affirmative vote of the holders
of a majority of the outstanding shares of stock of the Corporation entitled to
vote for the election of such Director, cast at a special meeting of
stockholders called for the purpose. Any vacancy in the Board of Directors
caused by any such removal may be filled at such meeting by the stockholders
entitled to vote for the election of the Director so removed. If such
stockholders do not fill such vacancy at such meeting (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting), such vacancy may be filled in the manner provided in
Section 2.13 of these By-Laws. [Section 141(b).]
Section 2.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If any
vacancies shall occur in the Board of Directors, by reason of death,
resignation, removal or otherwise, or if the authorized number of Directors
shall be increased, the Directors then in office shall continue to act, and such
vacancies and newly created Directorships may be filled by a majority of the
Directors then in office, although less than a quorum. A Director elected to
fill a vacancy or a newly created Directorship shall hold office until his
successor has been elected and qualified or until his earlier death, resignation
or removal. Any such vacancy or newly created Directorship may also be filled
at any time by vote of the stockholders. [Section 223.]
Section 2.14. COMPENSATION. The amount, if any, which each Director
shall be entitled to receive as compensation for his services as a Director
shall be fixed from time to time by resolution of the Board of Directors,
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PROVIDED that no Director (A) who is an officer or employee of the Corporation,
or (B) who is an officer or employee of, or an affiliate (as such term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) of,
The Clayton & Dubilier Private Equity Fund IV Limited Partnership or any other
stockholder of the Company holding 5% or more of the Company's equity securities
shall be entitled to receive any compensation for his services as a Director
(although he shall be entitled to be reimbursed for any reasonable out-of-pocket
expenses incurred in connection with his service as a Director).
[Section 141(h).]
Section 2.15. RELIANCE ON ACCOUNTS AND REPORTS, ETC. A Director, or
a member of any Committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
records of the Corporation and upon information, opinions, reports or statements
presented to the Corporation by any of the Corporation's officers or employees,
or Committees designated by the Board of Directors, or by any other person as to
the matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation. [Section 141(e).]
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.1. HOW CONSTITUTED. The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate one or more
committees, including an Executive Committee, a Finance and Audit Committee and
a Compensation and Pension Committee, each such committee to consist of such
number of Directors as from time to time may be fixed by the Board of Directors,
PROVIDED that the Executive Committee shall initially consist of three or more
Directors, one of whom shall be the Chairman. The Board of Directors may
designate one or more Directors as alternate
11
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members of any such committee, who may replace any absent or disqualified member
or members at any meeting of such committee. Thereafter, members (and alternate
members, if any) of each such committee may be designated at the annual meeting
of the Board of Directors. Any such committee may be abolished or re-designated
from time to time by the Board of Directors. Each member (and each alternate
member) of any such committee (whether designated at an annual meeting of the
Board of Directors or to fill a vacancy or otherwise) shall hold office until
his successor shall have been designated or until he shall cease to be a
Director, or until his earlier death, resignation or removal. [Section 141(c).]
Section 3.2. POWERS. During the intervals between the meetings of
the Board of Directors, the Executive Committee, except as otherwise provided in
this Section 3.2, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the property, affairs and business
of the Corporation. Unless otherwise determined by the Board of Directors, the
Compensation and Pension Committee shall review and recommend to the Board of
Directors actions and policies relating to executive compensation and other
compensation, incentive, pension plan and employee benefits matters and, unless
such committee or the Board of Directors otherwise determines, shall administer
the Corporation's stock option plans (as provided in such plans). Unless
otherwise determined by the Board of Directors, the Finance and Audit Committee
shall review and recommend to the Board of Directors actions and policies
relating to the capital structure of the Corporation, the borrowing and
repayment of funds by the Corporation, and financial controls and other matters
relating to the preparation of audited financial statements of the Corporation.
Unless otherwise determined by the Board of Directors, the Finance and Audit
Committee shall also supervise internal audits and relations with the
Corporation's independent public accountants and shall review and recommend to
the Board of Directors actions and policies relating thereto, including the
appointment or
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discharge of such independent public accountants. Each other committee of the
Board of Directors, except as otherwise provided in this Section 3.2, shall have
and may exercise such powers of the Board of Directors as may be provided by
resolution or resolutions of the Board of Directors.
None of the Executive Committee, the Compensation and Pension
Committee, the Finance and Audit Committee or any other committee of the Board
of Directors shall have the power or authority:
(a) to amend the Certificate of Incorporation (except that such a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of
Directors as provided in Section 151(a) of the General Corporation Law
of the State of Delaware, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or
classes of stock of the Corporation or fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of
any series) or By-laws of the Corporation;
(b) to adopt an agreement of merger or consolidation or a certificate
of ownership and merger;
(c) to recommend to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets;
(d) to recommend to the stockholders the dissolution of the
Corporation or a revocation of a dissolution;
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(e) to declare a dividend;
(f) to authorize the issuance of stock;
(g) to remove the Chairman, or the President and Chief Executive
Officer, or a Director, or any other officer of the Corporation;
(h) to authorize any borrowing of funds, other than under existing
facilities, that is material to the capital structure of the
Corporation;
(i) to authorize any new compensation or benefit program;
(j) to appoint or discharge the Corporation's independent public
accountants;
(k) to authorize the annual operating plan, annual capital expenditure
plan and strategic plan;
(l) to authorize the acquisition of any business or any segment
thereof from any person or entity, whether by way of asset purchase,
stock purchase, merger or other business combination, if such
transaction would require a waiver under or modification of any material
financing agreement or loan document to which the Corporation is a
party, including the Amended and Restated Secured United States Credit
Agreement, dated as of April 21, 1995; or
(m) to abolish or usurp the authority of another committee of the
Board of Directors.
The Executive Committee shall have, and any other committee may be granted by
the Board of Directors, power to authorize the seal of the Corporation to be
affixed to any or all papers which may require it. [Section 141(c).]
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Section 3.3. PROCEEDINGS. Each committee of the Board of Directors
may fix its own rules of procedure and may meet at such place (within or without
the State of Delaware), at such time and upon such notice, if any, as it shall
determine from time to time, PROVIDED that, unless the Executive Committee or
the Board of Directors otherwise determines, (A) the Executive Committee shall
meet at least once during each month other than months in which meetings of the
Board of Directors are held, and promptly following the giving of notice of a
meeting of such Committee by the Chairman or any two members of such Committee
and (B) each of the Compensation and Pension Committee and the Finance and Audit
Committee shall meet annually, and promptly following the giving of notice of a
meeting of such Committee by the chairman of such Committee chosen by the Board
of Directors or any two members of such Committee. Each such committee of the
Board of Directors shall keep minutes of its proceedings and shall report such
proceedings to the Board of Directors at the meeting of the Board of Directors
next following any such proceedings.
Section 3.4. QUORUM AND MANNER OF ACTING. Except as may be otherwise
provided in the resolution creating any committee of the Board of Directors, at
all meetings of such committee the presence of members (or alternate members)
constituting a majority of the total authorized membership of such committee
shall constitute a quorum for the transaction of business. The act of the
majority of the members present at any meeting at which a quorum is present
shall be the act of such committee. Any action required or permitted to be
taken at any meeting of any such committee may be taken without a meeting, if
all members of such committee shall consent to such action in writing and such
writing or writings are filed with the minutes of the proceedings of such
committee. The members of any such committee shall act only as a committee, and
the individual members of such committee shall have no power as such.
[Section 141(c).]
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Section 3.5. ACTION BY TELEPHONIC COMMUNICATIONS. Members of any
committee of the Board of Directors may participate in a meeting of such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. [Section 141(i).]
Section 3.6. ABSENT OR DISQUALIFIED MEMBERS. In the absence or
disqualification of a member of any committee of the Board of Directors, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. [Section 141(c).]
Section 3.7. RESIGNATIONS. Any member (and any alternate member) of
any committee of the Board of Directors may resign at any time by delivering a
written notice of resignation, signed by such member, to the Chairman or the
President and Chief Executive Officer. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
Section 3.8. REMOVAL. Any member (and any alternate member) of any
committee of the Board of Directors may be removed at any time, either for or
without cause, by resolution adopted by a majority of the whole Board of
Directors.
Section 3.9. VACANCIES. If any vacancy shall occur in any committee
of the Board of Directors, by reason of disqualification, death, resignation,
removal or otherwise, the remaining members (and any alternate members) shall
continue to act, and any such vacancy may be filled by the Board of Directors.
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ARTICLE IV
OFFICERS AND AGENTS
Section 4.1. NUMBER. The officers of the Corporation shall be
elected by the Board of Directors and shall consist of a Chairman, a President
and Chief Executive Officer, a Vice President & Chief Financial Officer, a Vice
President of Marketing and Sales, a Vice President of European Operations, one
or more additional Vice Presidents, a Secretary, a Treasurer, a Controller and
such other officers as the Board of Directors shall designate. The Board of
Directors also may elect one or more Assistant Secretaries and Assistant
Treasurers in such numbers as the Board of Directors may determine. In
addition, the Board of Directors or the President and Chief Executive Officer
may choose one or more corporate agents to hold the positions of Vice President
and General Counsel, Vice President of Human Resources, Vice President of United
States Sales, and Director of Taxes. Any number of offices may be held by the
same person. No officer need be a Director of the Corporation.
[Section 142(a), (b).]
Section 4.2. ELECTION. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual
meeting, officers may be elected at any regular or special meeting of the Board
of Directors. Each officer shall hold office until his successor has been
elected and qualified, or until his earlier death, resignation or removal.
[Section 142(b).]
Section 4.3. SALARIES. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors and the salaries of all
corporate agents shall be fixed by the President and Chief Executive Officer.
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Section 4.4. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be
removed for or without cause at any time by the Board of Directors. Any
corporate agent may be removed for or without cause at any time by the President
and Chief Executive Officer or the Board of Directors. Any officer or corporate
agent may resign at any time by delivering a written notice of resignation,
signed by such officer, to the Board of Directors or the President and Chief
Executive Officer. Unless otherwise specified therein, such resignation shall
take effect upon delivery. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, shall be filled by the
Board of Directors. [Section 142(b), (e).]
Section 4.5. AUTHORITY AND DUTIES OF OFFICERS. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law. [Section 142(a).
Section 4.6. THE CHAIRMAN. The Chairman shall have general
supervision and control of the policies, business and affairs of the
Corporation, subject to the control and authority of the Board of Directors.
The Chairman shall preside at all meetings of the stockholders, the Board of
Directors and the Executive Committee at which he is present.
Section 4.7. THE PRESIDENT AND CHIEF EXECUTIVE OFFICER. The
President and Chief Executive Officer shall preside, in the event of the absence
or disability of the Chairman at all meetings of the stockholders and Directors
at which he is present, shall be the chief executive officer and the chief
operating officer of the Corporation, shall have general control and supervision
of the policies and operations of the Corporation (subject to the authority of
the Board of Directors and the Chairman) and shall see that all orders and
resolutions of the Board of Directors and the Chairman are carried into effect.
He shall manage and
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administer the Corporation's business and affairs and shall also perform all
duties and exercise all powers usually pertaining to the office of a chief
executive officer and a chief operating officer of a corporation. He shall have
the authority to sign, in the name and on behalf of the Corporation, checks,
orders, contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation, and together with the Secretary
or an Assistant Secretary, conveyances of real estate and other documents and
instruments to which the seal of the Corporation is affixed. He shall have the
authority to cause the employment or appointment of such employees and agents of
the Corporation as the conduct of the business of the Corporation may require,
to fix their compensation, and to remove or suspend any employee or agent
elected or appointed by the President and Chief Executive Officer or the Board
of Directors. The President and Chief Executive Officer shall perform such
other duties and have such other powers as the Board of Directors or the
Chairman may from time to time prescribe.
Section 4.8. VICE PRESIDENTS AND CORPORATE AGENTS. Each Vice
President and each corporate agent shall perform such duties and exercise such
powers as may be assigned to him from time to time by the President and Chief
Executive Officer and these By-Laws. In the absence of the President and Chief
Executive Officer, the duties of the President and Chief Executive Officer shall
be performed and his powers may be exercised by such Vice President as shall be
designated by the President and Chief Executive Officer, or failing such
designation, such duties shall be performed and such powers may be exercised by
each Vice President in the order of their earliest election to that office,
subject in any case to review and superseding action by the President and Chief
Executive Officer.
Section 4.9. THE VICE PRESIDENT & CHIEF FINANCIAL OFFICER. The Vice
President & Chief Financial Officer shall be the chief financial officer of the
Corporation. He shall report to the President and Chief Executive Officer and
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shall be responsible for reviewing and recommending financial policy to the
Board of Directors, and for analysis and reporting of the financial results of
the Corporation to the Board of Directors. He shall direct and supervise the
activities of the Treasurer and the Controller. He shall supervise all tax and
internal audit functions of the Corporation. He will also be responsible for
review, coordination and general supervision of all of the foregoing functions
for subsidiaries of the Corporation. He shall peform such other duties and
exercise such other powers as may be assigned or delegated to him by the
President and Chief Executive Officer or the Board of Directors.
Section 4.10. THE CONTROLLER. The Controller shall be the chief
accounting officer of the Corporation, shall report to the Vice President &
Chief Financial Officer and shall be responsible for the maintenance of
corporate accounting records, preparation of consolidated financial statements
and related reports, and monitoring of internal accounting controls and
accounting records. He shall perform such other duties as may be assigned to
him by the Vice President & Chief Financial Officer.
Section 4.11. THE TREASURER. The Treasurer shall report to the Vice
President & Chief Financial Officer, and shall have the following powers and
duties:
(a) He shall have charge and supervision over and be responsible for
the moneys, securities, receipts and disbursements of the Corporation,
and shall keep or cause to be kept full and accurate records of all
receipts of the Corporation.
(b) He shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositaries as shall be selected in accordance with Section 8.5
of these By-Laws.
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(c) He shall cause the moneys of the Corporation to be disbursed by
checks or drafts (signed as provided in Section 8.6 of these By-Laws)
upon the authorized depositaries of the Corporation and cause to be
taken and preserved proper vouchers for all moneys disbursed.
(d) He may sign (unless an Assistant Treasurer or the Secretary or
an Assistant Secretary shall have signed) certificates representing
stock of the Corporation the issuance of which shall have been
authorized by the Board of Directors.
(e) He shall be responsible for and supervise the Corporation's
insurance program.
(f) He shall perform such other duties as may be assigned to him by
the Vice President & Chief Financial Officer.
Section 4.12. THE VICE PRESIDENT AND GENERAL COUNSEL. The Vice
President and General Counsel shall be the chief legal officer of the
Corporation and shall be responsible for the legal affairs of the Corporation.
He shall report to the President and Chief Executive Officer and shall furnish
legal advice to the Board of Directors and the officers (and corporate agents)
of the Corporation. He shall perform such other duties and exercise such other
powers as may be assigned or delegated to him by the President and Chief
Executive Officer.
Section 4.13. THE SECRETARY. The Secretary shall have the following
powers and duties:
(g) He shall keep or cause to be kept a record of all the proceedings
of the meetings of the stockholders and of the Board of Directors in
books provided for that purpose.
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(h) He shall cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by law.
(i) Whenever any committee of the Board of Directors shall be
appointed pursuant to a resolution of the Board of Directors, he shall
furnish a copy of such resolution to the members of such committee.
(j) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to the
issuance thereof and to all instruments the execution of which on behalf
of the Corporation under its seal shall have been duly authorized in
accordance with these By-Laws, and when so affixed he may attest the
same.
(k) He shall properly maintain and file all books, reports,
statements, certificates and all other documents and records required by
law, the Certificate of Incorporation or these By-Laws.
(l) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in
such manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record of
such shares, the number of shares held by each holder and the date as of
which each became such holder of record.
(m) He shall sign (unless the Treasurer, an Assistant Treasurer or
Assistant Secretary shall have signed) certificates representing shares
of the Corporation the issuance of which shall have been authorized by
the Board of Directors.
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(n) He shall perform, in general, all duties incident to the office of
secretary and such other duties as may be specified in these By-Laws or
as may be assigned to him from time to time by the Board of Directors or
the President and Chief Executive Officer.
Section 4.14. ADDITIONAL OFFICERS AND AGENTS. The Board of Directors
may appoint such other officers and agents as it may deem appropriate, and such
other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as may be determined from time to
time by the Board of Directors. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint subordinate officers or
agents and to prescribe their respective rights, terms of office, authorities
and duties. Any such officer or agent may remove any such subordinate officer
or agent appointed by him, for or without cause. [Section 142(a), (b).]
Section 4.15. SECURITY. The Board of Directors may require any
officer, agent or employee of the Corporation to provide security for the
faithful performance of his duties, in such amount and of such character as may
be determined from time to time by the Board of Directors. [Section 142(c).]
ARTICLE V
CAPITAL STOCK
Section 5.1. CERTIFICATES OF STOCK, UNCERTIFICATED SHARES. The
shares of the Corporation shall be represented by certificates, PROVIDED that
the Board of Directors may provide by resolution or resolutions that some or all
of any or all classes or series of the stock of the Corporation shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until each certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the
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Board of Directors, every holder of stock in the Corporation represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the Corporation, by
the President and Chief Executive Officer or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
representing the number of shares registered in certificate form. Such
certificate shall be in such form as the Board of Directors may determine, to
the extent consistent with applicable law, the Certificate of Incorporation and
these By-Laws. [Section 158.]
Section 5.2. SIGNATURES; FACSIMILE. Any or all of the signatures on
the certificate referred to in Section 5.1 of these By-Laws may be a facsimile,
engraved or printed, to the extent permitted by law. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue. [Section 158.]
Section 5.3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. [Section 167.]
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Section 5.4. TRANSFER OF STOCK. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares, duly endorsed
or accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law
of the State of Delaware. Subject to the provisions of the Certificate of
Incorporation and these By-Laws, the Board of Directors may prescribe such
additional rules and regulations as it may deem appropriate relating to the
issue, transfer and registration of shares of the Corporation. [Section 151.]
Section 5.5. RECORD DATE. In order to determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which shall not be more
than 60 nor less than ten days before the date of such meeting. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, PROVIDED, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution
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fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights of the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
[Section 213.]
Section 5.6. REGISTERED STOCKHOLDERS. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person
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exclusively entitled to receive dividends and other distributions, to vote, to
receive notice and otherwise to exercise all the rights and powers of the owner
of the shares represented by such certificate, and the Corporation shall not be
bound to recognize any equitable or legal claim to or interest in such shares on
the part of any other person, whether or not the Corporation shall have notice
of such claim or interests. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the Corporation for
transfer or uncertificated shares are requested to be transferred, both the
transferror and transferee request the Corporation to do so. [Section 159.]
Section 5.7. TRANSFER AGENT AND REGISTRAR. The Board of Directors
may appoint one or more transfer agents and one or more registrars, and may
require all certificates representing shares to bear the signature of any such
transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.1. NATURE OF INDEMNITY. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a Director, officer or corporate agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a Director, officer or corporate agent, of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, and may indemnify
any person who was or is a party or is threatened to be made a party to such an
action, suit or proceeding by reason of the
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fact that he is or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (A) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (B) no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The termination of any action, suit or proceeding by judgment, order
settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
[Sections 145(a), (b).]
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Section 6.2. SUCCESSFUL DEFENSE. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Section 6.1 of these By-Laws or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
[Section 145(c).]
Section 6.3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 6.1 of
these By-Laws (unless ordered by a court) shall be made by the Corporation
unless a determination is made that indemnification of the Director or officer
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Section 6.1 of these By-Laws. Any
indemnification of an employee or agent of the Corporation under Section 6.1 of
these By-Laws (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 6.1 of these By-Laws. Any such determination shall be made (A) by the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties to such action, suit or proceeding, or (B) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (C) by the
stockholders. [Section 145(d).]
Section 6.4. ADVANCE PAYMENT OF EXPENSES. Expenses (including
attorneys' fees) incurred by a Director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this
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Article VI. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate. The Board of Directors may authorize
the Corporation's counsel to represent such director, officer, employee or agent
in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding. [Section 145(e).]
Section 6.5. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Any indemnification of a Director or officer of the Corporation under
Sections 6.1 and 6.2 of these By-Laws, or advance of costs, charges and expenses
to a Director or officer under Section 6.4 of these By-Laws, shall be made
promptly, and in any event within 30 days, upon the written request of the
Director or officer. If a determination by the Corporation that the Director or
officer is entitled to indemnification pursuant to this Article VI is required,
and the Corporation fails to respond within 60 days to a written request for
indemnity, the Corporation shall be deemed to have approved such request. If
the Corporation denies a written request for indemnity or advancement of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within 30 days, the right to indemnification or advances as granted by
this Article VI shall be enforceable by the Director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 6.4 of these
By-Laws where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 6.1 of these By-Laws, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have
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made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 6.1 of these
By-Laws, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 6.6. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such director, officer, employee or agent.
The indemnification PROVIDED by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
[Section 145(f), (j).]
Section 6.7. INSURANCE. The Corporation shall purchase and maintain
insurance on behalf of any person who
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is or was or has agreed to become a Director or officer of the Corporation, or
is or was serving at the request of the Corporation as a Director or officer of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VI, PROVIDED that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board of Directors.
Section 6.8. SEVERABILITY. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VI that shall not have been invalidated and to the
fullest extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle.
Section 7.2. OTHER OFFICES. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the
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Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. DIVIDENDS. Subject to any applicable provisions of law
and the Certificate of Incorporation, dividends upon the shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors and any such dividend may be paid in cash,
property, or shares of the Corporation's Capital Stock.
A member of the Board of Directors, or a member of any Committee
designated by the Board of Directors shall be fully protected in relying in good
faith upon the records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or Committees of the Board of Directors, or by any other person as to
matters the Director reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts pertinent
to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid. [Sections 172, 173.]
Section 8.2. RESERVES. There may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, thinks proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall think conducive to the interest of the
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Corporation, and the Board of Directors may similarly modify or abolish any such
reserve. [Section 171.]
Section 8.3. EXECUTION OF INSTRUMENTS. The Chairman, the President
and Chief Executive Officer, any Vice President, the Secretary or the Treasurer
may enter into any contract or execute and deliver any instrument in the name
and on behalf of the Corporation. The Board of Directors or the Chairman, the
President and Chief Executive Officer or the Vice President & Chief Financial
Officer may authorize any other officer or agent to enter into any contract or
execute and deliver any instrument in the name and on behalf of the Corporation.
Any such authorization may be general or limited to specific contracts or
instruments.
Section 8.4. CORPORATE INDEBTEDNESS. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors or the Chairman, the
President and Chief Executive Officer or the Vice President & Chief Financial
Officer. Such authorization may be general or confined to specific instances.
Loans so authorized may be effected at any time for the Corporation from any
bank, trust company or other institution, or from any firm, corporation or
individual. All bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors or the Chairman, the President and Chief
Executive Officer or the Vice President & Chief Financial Officer shall
authorize. When so authorized by the Board of Directors or the Chairman, the
President and Chief Executive Officer or the Vice President & Chief Financial
Officer, any part of or all the properties, including contract rights, assets,
business or good will of the Corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation, and of the
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interest thereon, by instruments executed and delivered in the name of the
Corporation.
Section 8.5. DEPOSITS. Any funds of the Corporation may be deposited
from time to time in such banks, trust companies or other depositaries as may be
determined by the Board of Directors or the Chairman, the President and Chief
Executive Officer or the Vice President & Chief Financial Officer, or by such
officers or agents as may be authorized by the Board of Directors or the
Chairman, the President and Chief Executive Officer or the Vice President &
Chief Financial Officer to make such determination.
Section 8.6. CHECKS. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such agent or
agents of the Corporation, and in such manner, as the Board of Directors or the
Chairman or the President and Chief Executive Officer from time to time may
determine.
Section 8.7. SALE, TRANSFER, ETC. OF SECURITIES. To the extent
authorized by the Board of Directors or by the Chairman, the President and Chief
Executive Officer, the Vice President & Chief Financial Officer, any other Vice
President, the Secretary or the Treasurer or any other officers designated by
the Board of Directors or the Chairman or the President and Chief Executive
Officer may sell, transfer, endorse and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
Section 8.8. VOTING AS STOCKHOLDER. Unless otherwise determined by
resolution of the Board of Directors, each of the Chairman, the President and
Chief Executive Officer and the Vice President & Chief Financial Officer shall
have full power and authority on behalf of the Corporation to attend any meeting
of stockholders of any
35
<PAGE>
corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
Section 8.9. FISCAL YEAR. The fiscal year of the Corporation shall
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
Section 8.10. SEAL. The seal of the Corporation shall be circular in
form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 8.11. BOOKS AND RECORDS; INSPECTION. Except to the extent
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
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<PAGE>
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.1. AMENDMENT. These By-Laws may be amended, altered or
repealed
(a) by resolution adopted by a majority of the Board of Directors
at any special or regular meeting of the Board if, in the case of such
special meeting only, notice of such amendment, alteration or repeal is
contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders if, in
the case of such special meeting only, notice of such amendment,
alteration or repeal is contained in the notice or waiver of notice of
such meeting. [Section 109(a).]
ARTICLE X
CONSTRUCTION
Section 10.1. CONSTRUCTION. In the event of any conflict between the
provisions of these By-Laws as in effect from time to time and the provisions of
the Certificate of Incorporation of the Corporation as in effect from time to
time, the provisions of such Certificate of Incorporation shall be controlling.
37
<PAGE>
AMENDMENT NO. 1 DATED AS OF FEBRUARY 13, 1997
TO
LEXMARK INTERNATIONAL, INC.
BY-LAWS
AS AMENDED AND RESTATED AS OF OCTOBER 26, 1995
Section 1. AMENDMENT TO ARTICLE IV OF BY-LAWS. ARTICLE IV of the By-Laws
is hereby amended by (i) deleting in their entirety Sections 4.7 and 4.8, (ii)
renumbering Sections 4.9 through 4.15 as Sections 4.11 through 4.17,
respectively, and, then, (iii) inserting the following text as Sections 4.7
through 4.10:
Section 4.7 THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall preside, in the event of the absence or disability of the Chairman,
at all meetings of the stockholders and Directors at which he is present,
shall be the chief executive officer of the Corporation, shall have
general control and supervision of the policies of the Corporation
(subject to the authority of the Board of Directors), and shall see that
all orders and resolutions of the Board of Directors are carried into
effect. He shall manage and administer the Corporation's business and
affairs and shall also perform all duties and exercise all powers usually
pertaining to the office of a chief executive officer of a corporation.
The Chief Executive Officer shall have the authority to sign, in the name
and on behalf of the Corporation, checks, orders, contracts, leases,
notes, drafts and other documents and instruments in connection with the
business of the Corporation, and together with the Secretary or an
Assistant Secretary, conveyances of real estate and other documents and
instruments to which the seal of the Corporation is affixed. The Chief
Executive Officer shall have the authority to cause the employment or
appointment of such employees and agents of the Corporation as the conduct
of the business of the Corporation may require, to fix their compensation,
and to remove or suspend any employee or agent elected or appointed by the
Chief Executive Officer or the
<PAGE>
Board of Directors. The Chief Executive Officer shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
Section 4.8 THE PRESIDENT AND CHIEF OPERATING OFFICER. The President
and Chief Operating Officer shall, in the event of the absence or
disability of the Chief Executive Officer, perform the duties of the Chief
Executive Officer (subject to the authority of the Board of Directors to
designate some other person as temporary Chairman), shall be the chief
operating officer of the Corporation, shall have general control and
supervision of the operations of the Corporation and shall have general
supervision of the divisions of the Corporation (subject to the authority
of the Board of Directors and the Chief Executive Officer). The President
and Chief Operating Officer shall manage and administer the Corporation's
business and affairs, and shall also perform all duties and exercise all
powers usually pertaining to the office of a chief operating officer of a
corporation. The President and Chief Operating Officer shall have the
authority to sign, in the name and on behalf of the Corporation, checks,
orders, contracts, leases, notes, drafts, and other documents and
instruments in connection with the business of the Corporation, and
together with the Secretary or an Assistant Secretary, conveyances of real
estate and other documents and instruments to which the seal of the
Corporation is affixed. The President and Chief Operating Officer shall
perform such other duties and have such other powers as the Board of
Directors or the Chairman or Chief Executive Officer may from time to time
prescribe.
Section 4.9 Vice Presidents and Corporate Agents. Each Vice
President and each corporate agent shall perform such duties and exercise
such powers as may be assigned to him from time to time by the Chief
Executive Officer and these By-Laws. In the absence of the Chief Executive
Officer and the President and Chief Operating Officer, the
2
<PAGE>
duties of such officers shall be performed and their powers may be
exercised by the Vice President and Chief Financial Officer, and in the
absence of the Vice President and Chief Financial Officer, such Vice
President as shall be designated by the Chief Executive Officer, or
failing such designation, such duties shall be performed and such powers
may be exercised by each Vice President in the order of their earliest
election to that office, subject in any case to review and superseding
action by the Chief Executive Officer.
Section 4.10 CHANGES TO REFERENCES TO CERTAIN OFFICERS IN THESE
BY-LAWS. Except as set forth in the last sentence of this Section 4.10,
all references in these By-Laws to "the President and Chief Executive
Officer" shall be replaced with "the Chief Executive Officer". All
references in these By-Laws to "in the event of the absence or disability
of the Chairman and the President and Chief Executive Officer, by the Vice
President and Chief Financial Officer" shall be replaced with "in the
event of the absence or disability of the Chairman and Chief Executive
Officer, by the President and Chief Operating Officer or, in the event of
his absence or disability, by the Vice President and Chief Financial
Officer". All references in Article VIII of these By-Laws to "the
President and Chief Executive Officer" shall be replaced with "the Chief
Executive Officer, the President".
3
<PAGE>
Exhibit 12.1
Lexmark International Group, Inc.
Computation of Ratio of Earnings to Fixed Charges
(Millions of Dollars)
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------
<S> <C> <C> <C> <C> <C>
1997 1996 1995 1994 1993
----- ----- ----- ----- ----
Earnings:
Net earnings....................... 149.0 127.8 32.4 44.6 (9.4)
Extraordinary loss................. 14.0 -- 15.7 -- --
Provision for income taxes......... 91.7 73.8 15.2 6.1 3.0
Fixed charges less interest
capitalized...................... 35.2 43.2 55.1 81.5 94.3
----- ----- ----- ----- ----
Total............................ 289.9 244.8 118.4 132.2 87.9
----- ----- ----- ----- ----
----- ----- ----- ----- ----
Fixed Charges:
Interest expense (gross of
interest income)................. 13.0 22.8 37.4 53.6 68.8
Amortization of deferred financing
expense.......................... 0.6 1.6 2.2 10.8 9.6
Interest capitalized............... 0.5 1.2 -- -- --
Gross rental expense............... 21.6 18.8 15.5 17.1 15.9
----- ----- ----- ----- ----
Total............................ 35.7 44.4 55.1 81.5 94.3
----- ----- ----- ----- ----
----- ----- ----- ----- ----
Ratio of Earnings to Fixed Charges... 8.1 5.5 2.1 1.6 0.9
----- ----- ----- ----- ----
----- ----- ----- ----- ----
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-3 of our reports dated February 18, 1998, on our audits
of the consolidated financial statements and financial statement schedule of
Lexmark International Group, Inc. and subsidiaries as of December 31, 1996
and 1997, and for the years ended December 31, 1995, 1996 and 1997. We also
consent to the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
- -----------------------------
Coopers & Lybrand L.L.P.
Lexington, Kentucky
April 17, 1998
