- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
(Mark One)
X For the Quarterly Period Ended June 30, 1998
OR
Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Commission File No.1-14050
LEXMARK INTERNATIONAL GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3074422
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Lexmark Centre Drive
740 West New Circle Road
Lexington, Kentucky 40550
(Address of principal executive offices) (Zip Code)
(606) 232-2000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No ___
The registrant had 66,294,760 shares outstanding (excluding shares held in
treasury) of Class A common stock, par value $0.01 per share, as of the close of
business on July 31, 1998.
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<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
INDEX
Page of
Form 10-Q
---------
PART I
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED CONDENSED STATEMENTS OF EARNINGS (Unaudited)
THREE MONTHS AND SIX MONTHS ENDED JUNE 30, 1998 AND 1997...........2
CONSOLIDATED CONDENSED STATEMENTS OF FINANCIAL POSITION (Unaudited)
AS OF JUNE 30, 1998 AND DECEMBER 31, 1997..........................3
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (Unaudited)
SIX MONTHS ENDED JUNE 30, 1998 AND 1997............................4
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (Unaudited).....5-8
.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF
OPERATIONS AND FINANCIAL CONDITION (Unaudited)...................9-13
PART II
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS................14
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K...................................14
1
<PAGE>
Part I - Financial Information
Item 1. Financial Statements
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF EARNINGS
(In Millions, Except Per Share Amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
------------------ ----------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues $697.3 $556.3 $1,369.4 $1,139.7
Cost of revenues 440.9 362.9 866.4 746.5
------- ------- -------- --------
Gross profit 256.4 193.4 503.0 393.2
Research and development 38.1 31.8 74.7 62.4
Selling, general and administrative 133.0 104.1 265.1 217.6
------- ------- -------- --------
Operating expenses 171.1 135.9 339.8 280.0
------- ------- -------- --------
Operating income 85.3 57.5 163.2 113.2
Interest expense 3.1 1.4 5.1 6.3
Amortization of deferred financing costs and other 1.3 2.0 2.8 4.4
------- ------- -------- --------
Earnings before income taxes and extraordinary item 80.9 54.1 155.3 102.5
Provision for income taxes 27.1 19.8 52.0 37.5
------- ------- -------- --------
Earnings before extraordinary item 53.8 34.3 103.3 65.0
Extraordinary loss on extinguishment of debt
(net of related tax benefit of $8.4) - - - (14.0)
------- ------- -------- --------
Net earnings $ 53.8 $ 34.3 $ 103.3 $ 51.0
======= ======= ======== ========
Basic earnings per share:
Before extraordinary item $ 0.81 $ 0.48 $ 1.53 $ 0.90
Extraordinary loss - - - (0.19)
------- ------- -------- --------
Net earnings per share $ 0.81 $ 0.48 $ 1.53 $ 0.71
======= ======= ======== ========
Diluted earnings per share:
Before extraordinary item $ 0.75 $ 0.45 $ 1.44 $ 0.85
Extraordinary loss - - - (0.18)
------- ------- -------- --------
Net earnings per share $ 0.75 $ 0.45 $ 1.44 $ 0.67
======= ======= ======== ========
Shares used in per share calculation:
Basic 66.5 71.7 67.3 72.3
======= ======= ======== ========
Diluted 71.4 75.3 71.8 76.1
======= ======= ======== ========
</TABLE>
See notes to consolidated condensed financial statements.
2
<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF FINANCIAL POSITION
(In Millions, Except Share Amounts)
(Unaudited)
<TABLE>
<CAPTION>
June 30 December 31
1998 1997
------- -----------
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 34.3 $ 43.0
Trade receivables, net of allowance of $18 in
1998 and $19 in 1997 373.0 318.9
Inventories 412.0 353.8
Prepaid expenses and other current assets 61.0 60.4
-------- --------
Total current assets 880.3 776.1
Property, plant and equipment, net 406.9 409.6
Other assets 23.5 22.5
-------- --------
Total assets $1,310.7 $1,208.2
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term debt $ 46.8 $ 18.0
Accounts payable 249.4 302.0
Accrued liabilities 261.4 227.5
-------- --------
Total current liabilities 557.6 547.5
Long-term debt 148.5 57.0
Other liabilities 107.3 103.0
-------- --------
Total liabilities 813.4 707.5
-------- --------
Stockholders' equity:
Preferred stock, $.01 par value, 1,600,000
shares authorized, no shares issued and
outstanding - -
Common stock $.01 par value:
Class A, 160,000,000 shares authorized;
66,184,928 and 67,539,935 outstanding
in 1998 and 1997, respectively 0.8 0.7
Class B, 10,000,000 shares authorized; 0 and
410,537 outstanding in 1998 and 1997,
respectively - -
Capital in excess of par 544.3 537.2
Retained earnings 272.1 168.8
Accumulated other comprehensive earnings (loss) (28.5) (23.8)
Treasury stock, at cost; 8,845,687 and
6,438,114 shares in 1998 and
1997, respectively (291.4) (182.2)
-------- --------
Total stockholders' equity 497.3 500.7
-------- --------
Total liabilities and stockholders' equity $1,310.7 $1,208.2
======== ========
</TABLE>
See notes to consolidated condensed financial statements.
3
<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In Millions)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30
----------------
1998 1997
---- ----
Cash flows from operating activities:
<S> <C> <C>
Net earnings $103.3 $ 51.0
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 34.9 37.2
Extraordinary loss on extinguishment of debt - 22.4
Deferred taxes 0.3 2.3
Other non-cash charges to operations 10.3 9.8
------ ------
148.8 122.7
Change in assets and liabilities:
Trade receivables (41.8) 4.4
Trade receivables programs (12.3) 24.6
Inventories (58.2) (42.4)
Accounts payable (52.6) 29.6
Accrued liabilities 33.9 (42.9)
Other assets and liabilities (6.4) (19.8)
------ ------
Net cash provided by operating activities 11.4 76.2
------ ------
Cash flows from investing activities:
Purchases of property, plant and equipment (34.9) (31.2)
Proceeds from sale of property, plant and equipment 1.0 0.2
------ ------
Net cash used for investing activities (33.9) (31.0)
------ ------
Cash flows from financing activities:
Increase in short-term debt 28.8 67.4
Principal payments on long-term debt (207.0) (125.5)
Proceeds from issuance of long-term debt,
net of issuance costs of $1.3 297.2 0.2
Charges related to extinguishment of debt - (22.4)
Purchase of treasury stock (109.3) (49.5)
Exercise of stock options and warrants 4.8 6.0
Net cash provided by (used for) ------ ------
financing activities 14.5 (123.8)
------ ------
Effect of exchange rate changes on cash (0.7) (1.6)
------ ------
Net decrease in cash and cash equivalents (8.7) (80.2)
Cash and cash equivalents - beginning of period 43.0 119.3
------ ------
Cash and cash equivalents - end of period $ 34.3 $ 39.1
====== ======
</TABLE>
See notes to consolidated condensed financial statements.
4
<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying interim financial statements are unaudited; however, in
the opinion of Lexmark International Group, Inc. ("Group" and together
with its subsidiaries, the "company") management, all adjustments (which
comprise only normal and recurring accruals) necessary for a fair
presentation of the interim financial results have been included. The
results for the interim periods are not necessarily indicative of results
to be expected for the entire year. These financial statements and notes
should be read in conjunction with the company's audited annual
consolidated financial statements for the year ended December 31, 1997.
2. INVENTORIES
(Dollars in millions)
Inventories consist of the following:
June 30 December 31
1998 1997
------- -----------
Work in process $ 210.2 $ 211.2
Finished goods 201.8 142.6
------- -------
$ 412.0 $ 353.8
======= =======
3. STOCKHOLDERS' EQUITY
During the three months ended June 30, 1998, Group repurchased 410,200
shares of its Class A common stock in the open market at prices ranging
from $51.63 to $56.94 for an aggregate cost of approximately $22.5
million. As of June 30, 1998, Group held, net of issuances, a total of
8,845,687 shares at an aggregate cost of approximately $291.4 million.
Group has remaining authorization from its board of directors to
repurchase up to $108.6 million of its Class A common stock. This
repurchase authority allows Group 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 price and
other factors.
4. LONG-TERM DEBT
In May 1998, Lexmark International, Inc., a wholly-owned subsidiary of
Group ("International"), completed a public offering of $150 million
principal amount of its 6.75% senior notes due May 15, 2008. The senior
notes were priced at 98.998%, to yield 6.89% to maturity. The senior
notes are guaranteed by Group. A substantial portion of the net proceeds
from the sale of the senior notes was used to reduce existing debt
outstanding under the company's credit facility. There are no sinking
fund requirements on the senior notes and they may be redeemed at any
time, at a redemption price as described in the related indenture
agreement, in whole or in part, at the option of International.
5
<PAGE>
5. OTHER COMPREHENSIVE EARNINGS (LOSS)
(Dollars in millions)
Effective January 1, 1998 the company adopted Statement of Financial
Accounting Standard ("SFAS") No. 130, Reporting Comprehensive Income.
This statement requires that all items recognized under accounting
standards as components of comprehensive earnings be reported in a
financial statement. This statement also requires that an entity classify
items of other comprehensive earnings by their nature in a financial
statement. For example, other comprehensive earnings may include foreign
currency translation adjustments, minimum pension liability adjustments,
and unrealized gains and losses on certain marketable securities.
Financial statements for prior periods have been reclassified, as
required.
Comprehensive earnings consists of the following:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
------------------ ----------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net earnings $53.8 $34.3 $103.3 $51.0
Other comprehensive earnings (loss):
Foreign currency translation adjustment
(net of related tax benefit of $0 in 1998
and 1997) (3.1) (3.5) (3.2) (15.9)
Minimum pension liability adjustment
(net of related tax benefit of $0.8 in 1998) - - (1.5) -
----- ----- ------ -----
Comprehensive earnings $50.7 $30.8 $ 98.6 $35.1
===== ===== ====== =====
</TABLE>
Accumulated other comprehensive earnings (loss) consists of the
following:
<TABLE>
<CAPTION>
Foreign Minimum Accumulated
Currency Pension Other
Translation Liability Comprehensive
Adjustment Adjustment Earnings (Loss)
---------- ---------- ---------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1997 $(23.8) $ - $(23.8)
First quarter other comprehensive earnings (loss) (0.1) (1.5) (1.6)
------ ------ ------
Balance, March 31, 1998 (23.9) (1.5) (25.4)
Second quarter other comprehensive earnings (loss) (3.1) - (3.1)
------ ------ ------
Balance, June 30, 1998 $(27.0) $ (1.5) $(28.5)
====== ====== ======
</TABLE>
6
<PAGE>
6. EARNINGS PER SHARE (EPS) (Dollars in millions, except share amounts)
The following is a reconciliation of the weighted average shares used in
the basic and diluted EPS calculations:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
1998 1997 1998 1997
---- ---- ---- ----
Earnings before extraordinary item used for
<S> <C> <C> <C> <C>
both basic and dilutive EPS $53.8 $34.3 $103.3 $65.0
===== ===== ====== =====
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Weighted average shares used for basic EPS 66,500,544 71,734,978 67,290,317 72,329,816
Effect of dilutive securities
Warrants - 340,362 - 341,679
Long-term incentive plan 38,422 46,101 44,213 46,101
Stock options 4,842,825 3,175,380 4,445,013 3,376,992
---------- ---------- ---------- ----------
Weighted average shares used for diluted EPS 71,381,791 75,296,821 71,779,543 76,094,588
========== ========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Basic EPS before extraordinary item $0.81 $0.48 $1.53 $0.90
Diluted EPS before extraordinary item $0.75 $0.45 $1.44 $0.85
</TABLE>
Options to purchase an additional 280,438 and 33,577 shares of Class A
common stock were outstanding at June 30, 1998 and 1997, respectively,
but were not included in the computation of diluted earnings per share
because their effect would be antidilutive.
7. SUMMARIZED FINANCIAL INFORMATION
(Dollars in millions)
The following is consolidated summarized financial information of
International:
<TABLE>
<CAPTION>
June 30 December 31
1998 1997
------- -----------
Statement of financial position data:
<S> <C> <C>
Current assets $880.3 $776.1
Noncurrent assets 430.4 432.1
Current liabilities 561.4 551.4
Noncurrent liabilities 255.8 160.0
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
------------------ ----------------
1998 1997 1998 1997
---- ---- ---- ----
Statement of earnings data:
<S> <C> <C> <C> <C>
Revenues $697.3 $556.3 $1,369.4 $1,139.7
Gross profit 256.4 193.4 503.0 393.2
Earnings before extraordinary item 53.8 34.3 103.3 65.0
Net earnings 53.8 34.3 103.3 51.0
</TABLE>
Current liabilities at June 30, 1998 and December 31, 1997 include $3.8
million and $3.9 million, respectively,
that is owed to Lexmark International Group, Inc.
8. NEW ACCOUNTING STANDARDS
In February 1998, the FASB issued SFAS No. 132, Employers' Disclosures
about Pensions and Other Postretirement Benefits, effective for fiscal
years beginning after December 15, 1997. This statement revises
employer's disclosures about pension and other postretirement benefit
plans. It does not change the measurement or recognition of those plans.
It standardizes the disclosure requirements for pensions and other
postretirement benefits to the extent practicable, requires additional
information on changes in the benefit obligations and fair values of plan
assets that will facilitate financial analysis, and eliminates certain
disclosures that are no longer as useful. Restatement of disclosures for
earlier periods provided for comparative purposes is required unless the
information is not readily available. This statement is disclosure
oriented and, therefore, will not have a material impact on the company's
financial position, results of operations or liquidity. This statement is
effective for the company's financial statements for the year ended
December 31, 1998.
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use. This SOP
provides guidance on accounting for the costs of computer software
developed or obtained for internal use, and requires that entities
capitalize certain internal-use software costs once certain criteria are
met. Currently the company generally expenses the costs of developing or
obtaining internal-use software as incurred. The company is currently
evaluating SOP 98-1, and does not expect it to have a material impact on
its consolidated financial statements. This SOP is effective for
financial statements for fiscal years beginning after December 15, 1998.
In June 1998, the FASB issued SFAS No. 133, Accounting for Derivative
Instruments and Hedging Activities. This statement requires companies to
record derivatives on the balance sheet as assets and liabilities,
measured at fair value. Gains or losses resulting from changes in the
values of those derivatives would be accounted for depending on the use
of the derivative and whether it qualifies for hedge accounting. The
company is currently evaluating this statement and its impact on the
consolidated financial statements. This statement is effective for fiscal
years beginning after June 15, 1999, with earlier adoption encouraged.
The company will adopt this accounting standard as required by January 1,
2000.
8
<PAGE>
Item 2. Management's Discussion and Analysis of Results of Operations and
Financial Condition
(Unaudited)
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
Results of Operations
- ---------------------
Consolidated revenues for the three months ended June 30, 1998 were $697
million, an increase of 25% over the same period of 1997 and reflected the
company's highest quarterly revenue growth since becoming a public company in
1995. Revenues were adversely affected by foreign currency exchange rates due to
the strengthening of the U.S. dollar. Without the currency effect, year-to-year
revenue growth would have been 29%. Printers and associated supplies revenues
were $579 million, an increase of 30%. Revenues from other office imaging
products were $118 million, an increase of 5% from 1997. Total U.S. revenues
were up $101 million or 37%, and international revenues were up $40 million or
14%.
For the six months ended June 30, 1998, consolidated revenues were $1,369
million, an increase of 20% over the same period of 1997. Revenues were
adversely affected by foreign currency exchange rates due to the strengthening
of the U.S. dollar. Without the currency effect, year-to-year revenue growth
would have been 24%. Printers and associated supplies revenues were $1,136
million, an increase of 26%. Revenues from other office imaging products were
$233 million, a decrease of 3% from 1997. Total U.S. revenues were up $141
million or 24%, and international revenues were up $89 million or 16%.
The revenue growth for the quarter and six months ended June 30, 1998 over the
same periods in 1997 was driven by unit volume increases in printers and strong
growth of associated supplies.
Consolidated gross profit was $256 million for the three months ended June 30,
1998, an increase of 33% from the same period of 1997. This was driven by
improved printer margins reflecting lower costs and a richer mix of supplies
versus printer hardware. Gross profit as a percentage of revenues for the second
quarter of 1998 increased to 37% from 35% in 1997. Gross profit attributable to
printers and associated supplies increased by 44%, principally due to improved
printer margins reflecting lower costs and growth in higher margin associated
consumable supplies.
For the six months ended June 30, 1998, consolidated gross profit was $503
million, an increase of 28% over the corresponding period of 1997. Gross profit
as a percentage of revenues increased to 37% from 35% in 1997. Gross profit
attributable to printers and associated supplies increased by 40%, principally
due to improved printer margins reflecting lower costs and growth in higher
margin associated consumable supplies.
Total operating expenses increased 26% and 21% in the second quarter and first
six months of 1998, respectively, compared to the same periods of 1997
reflecting higher marketing expenses in support of new product introductions and
revenue growth. Expenses as a percentage of revenues for the quarter were 24.5%
compared to 24.4% for the corresponding period of 1997. Expenses as a percentage
of revenues for the first half of 1998 were 24.8% compared to 24.6% for the same
period of 1997.
Consolidated operating income was $85 million for the second quarter of 1998 and
$163 million for the six months ended June 30, 1998, an increase of 48% and 44%,
respectively, over the corresponding period of 1997. This increase was due
principally to improved printer margins reflecting lower costs and growth in
higher margin associated consumable supplies.
Net earnings for the second quarter of 1998 were $54 million, up 57% compared to
the second quarter of 1997. This increase was primarily due to the 48% increase
in operating income. The income tax provision was
9
<PAGE>
approximately 34% of earnings before tax for the second quarter of 1998 as
compared to approximately 37% in the same period of 1997. The decrease in the
income tax rate is primarily due to the effect of lower tax rates on
manufacturing activities in certain countries.
Basic net earnings per share were $0.81 for the second quarter of 1998 compared
to $0.48 in the corresponding period of 1997, an increase of 69%. Diluted net
earnings per share were $0.75 for the second quarter of 1998 compared to $0.45
in the comparable period of 1997, an increase of 66%. The increase in basic and
diluted net earnings per share resulted from increased operating income, lower
income tax rates and the reduced shares outstanding due to share repurchases.
Earnings before extraordinary item for the first six months of 1998 were $103
million, an increase of 59% compared to the same period of 1997. This increase
is principally due to the 44% increase in operating income. The income tax
provision was approximately 34% of earnings before tax for the second quarter of
1998 as compared to approximately 37% in the same period of 1997. The decrease
in the income tax rate is primarily due to the effect of lower tax rates on
manufacturing activities in certain countries.
Net earnings for the first half of 1998 were $103 million, an increase of 103%
compared to the same period of 1997. Net earnings for the first half of 1997
were affected by an extraordinary charge of $22 million ($14 million net of tax
benefit) caused by a prepayment premium and other fees associated with the
prepayment of the company's senior subordinated notes.
Basic net earnings per share were $1.53 for the first six months of 1998
compared to $0.71 in the corresponding period of 1997, or $0.90 before
extraordinary item, an increase of 118% and 71%, respectively. Diluted net
earnings per share were $1.44 for the first six months of 1998 compared to $0.67
in the comparable period of 1997, or $0.85 before extraordinary item, an
increase of 115% and 69%, respectively. The increase in basic and diluted net
earnings per share resulted from increased operating income, lower income tax
rates and the reduced shares outstanding due to share repurchases.
Financial Condition
- -------------------
The company's financial position remains strong at June 30, 1998, with working
capital of $323 million compared to $229 million at December 31, 1997. At June
30, 1998, the company had outstanding $47 million of short-term debt and $149
million of long-term debt. The debt to total capital ratio was 28% at June 30,
1998 compared to 13% at December 31, 1997. The increase in debt reflects the
public debt offering of $150 million principal amount of senior notes described
below and higher revolver usage for stock repurchases.
In February 1998, Group's board of directors declared a dividend distribution of
one right (a "Right") for each outstanding share of Group's Class A common stock
and Class B common stock. The distribution was payable to holders of record on
April 3, 1998. Each Right entitles the registered holder to purchase from Group
one one-hundredth of a share of Series A Junior Participating Preferred Stock at
a price of $200 per one hundredth of a share, subject to adjustment.
In March 1998, the public offering of 7,704,577 shares of Group's Class A common
stock by certain of its stockholders was completed at a public offering price of
$45.00 per share. Group and current members of management chose not to sell any
shares in the offering and, therefore, did not receive any of the proceeds from
the sale of the shares.
In March 1998, Group repurchased an additional 2 million shares (the "Repurchase
Shares") from certain of the stockholders participating in the March 1998
offering at a price of $43.38 per share (which was equal to the net proceeds per
share received by the selling stockholders participating in the offering) for an
aggregate purchase price of approximately $87 million.
10
<PAGE>
In May 1998, International completed a public offering of $150 million principal
amount of its 6.75% senior notes due May 15, 2008. The senior notes were priced
at 98.998%, to yield 6.89% to maturity. The senior notes are guaranteed by
Group. A substantial portion of the net proceeds from the sale of the senior
notes was used to reduce existing debt outstanding under the company's credit
facility. There are no sinking fund requirements on the senior notes and they
may be redeemed at any time, at a redemption price as described in the related
indenture agreement, in whole or in part, at the option of International.
Cash provided by operating activities for the six months ended June 30, 1998 was
$11 million compared to $76 million for the same period of 1997. The decrease in
cash flows from operating activities in the first half of 1998 was attributable
primarily to increases in trade receivables and inventories due to higher
revenues and lower accounts payable which were partially offset by earnings
growth and changes in other working capital accounts.
Capital expenditures for the first half of 1998 were $35 million compared to $31
million for the same period of 1997. It is anticipated that capital expenditures
for 1998 will be approximately $100 million and will be funded primarily through
cash from operations.
During the three months ended June 30, 1998, Group repurchased 410,200 shares of
its Class A common stock in the open market at prices ranging from $51.63 to
$56.94 for an aggregate cost of approximately $23 million. As of June 30, 1998,
Group held, net of issuances, a total of 8,845,687 treasury shares at an
aggregate cost of approximately $291 million. Group has remaining authorization
from its board of directors to repurchase up to approximately $109 million of
its Class A common stock. This repurchase authority allows Group 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 price and
other factors.
New Accounting Standards
- ------------------------
In February 1998, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 132, Employers' Disclosure about Pensions and Other Postretirement Benefits,
effective for fiscal years beginning after December 15, 1997. This statement
revises employers' disclosures about pension and other postretirement benefit
plans. It does not change the measurement or recognition of those plans. It
standardizes the disclosure requirements for pensions and other postretirement
benefits to the extent practicable, requires additional information on changes
in the benefit obligations and fair values of plan assets that will facilitate
financial analysis, and eliminates certain disclosures that are no longer as
useful. Restatement of disclosures for earlier periods provided for comparative
purposes is required unless the information is not readily available. This
statement is disclosure oriented and, therefore, will not have a material impact
on the company's financial position, results of operations or liquidity. This
statement is effective for the company's financial statements for the year ended
December 31, 1998.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Opinion ("SOP") 98-1, Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use. This SOP provides guidance on accounting
for the costs of computer software developed or obtained for internal use, and
requires that entities capitalize certain internal-use software costs once
certain criteria are met. Currently the company generally expenses the costs of
developing or obtaining internal-use software as incurred. The company is
currently evaluating SOP 98-1, and does not expect it to have a material impact
on its consolidated financial statements. This SOP is effective for financial
statements for fiscal years beginning after December 15, 1998.
11
<PAGE>
In June 1998, the FASB issued SFAS No. 133, Accounting for Derivative
Instruments and Hedging Activities. This statement requires companies to record
derivatives on the balance sheet as assets and liabilities, measured at fair
value. Gains or losses resulting from changes in the values of those derivatives
would be accounted for depending on the use of the derivative and whether it
qualifies for hedge accounting. The company is currently evaluating this
statement and its impact on the consolidated financial statements. This
statement is effective for fiscal years beginning after June 15, 1999, with
earlier adoption encouraged. The company will adopt this accounting standard as
required by January 1, 2000.
Factors That May Affect Future Results and Information Concerning Forward -
- --------------------------------------------------------------------------------
Looking Statements
- ------------------
Certain of the statements contained in this Report may be considered
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements are made based upon management's current expectations
and belief concerning future developments and their potential effects upon the
company. There can be no assurance that future developments affecting the
company will be those anticipated by management, and there are a number of
factors that could adversely affect the company's future operating results or
cause the company's actual results to differ materially from the estimates or
expectations reflected in such forward-looking statements, including without
limitation, the factors set forth below:
~ The markets for printers and associated supplies are highly competitive,
especially with respect to pricing and the introduction of new technologies and
products offering improved features and functionality. If it is unable to
continue to develop, manufacture and market products that meet customers' needs,
the company's future operating results may be adversely affected. The company's
major competitors, all of which have significantly greater financial, marketing
and technological resources than the company, have regularly lowered prices on
their laser and inkjet printers and are expected to continue to do so. The
company has also regularly lowered prices on its printers and expects to
continue to do so. In particular, the inkjet printer market has experienced and
is expected to continue to experience significant printer price pressure from
the company's major competitors. Price reductions beyond expectations or the
inability to reduce costs, contain expenses or increase sales as currently
expected, as well as price protection measures, could result in lower
profitability for the company and jeopardize the company's ability to grow or
maintain its market share. In addition, 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 original equipment manufacturers.
~ The life cycles of the company's products, as well as delays in product
development and manufacturing, variations in the cost of component parts,
management of inventory levels by competitors, delays in customer purchases of
existing products in anticipation of new product introductions by the company or
its competitors and market acceptance of new products and programs, may cause a
build up in the company's inventories, make the transition from current products
to new products difficult and could adversely affect the company's future
operating results. Further, some of the company's newly developed products
replace or compete with some of the company's existing products. The competitive
pressure to develop technology and products also could cause significant changes
in the level of the company's operating expenses.
~ Revenues derived from international sales, including exports from the United
States, make up over half of the company's revenues. Accordingly, the company's
future results could be adversely affected by a variety of factors, including
foreign currency exchange rate fluctuations, trade protection measures, changes
in a specific country's or region's political or economic conditions and
unexpected changes in regulatory requirements. Also, margins on international
sales tend to be lower than those on domestic sales. Moreover, the company
believes that international operations in new geographic markets will be less
profitable than operations in the
12
<PAGE>
U.S. and European markets as a result, in part, of the higher investment levels
for marketing, selling and distribution required to enter these markets.
~ Factors unrelated to the company's operating performance, including the
company's ability to obtain patents, copyrights and trademarks, maintain trade
secret protection and operate without infringing the proprietary rights of
others, as well as expenses incurred by the company in enforcing its
intellectual property rights; economic and business conditions, both national
and international; the loss of significant customers or suppliers; changes in
and execution of the company's business strategy, including the impact of
acquisitions, and the ability to retain and attract key personnel, also may
affect the company's results. In addition, other factors, such as expectations
about the company's financial performance created in the investment community by
stock analysts who report on the company and the company's ability to meet those
expectations, may also affect Group's Class A common stock price.
13
<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
Part II. Other Information
Item 4. Submission of Matters to a Vote of Security Holders
The information required to be reported for Group's Annual Meeting of
Stockholders held on April 30, 1998, was previously reported by Group
in its Quarterly Report on Form 10-Q for the quarter ended March 31,
1998.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
A list of exhibits is set forth in the Exhibit Index found on
page 16 of this report.
(b) Reports on Form 8-K:
A Current Report on Form 8-K dated April 20, 1998 with respect to
a press release announcing Group's first quarter 1998 financial
results was filed with the Securities and Exchange Commission by
Group.
A Current Report on Form 8-K dated April 21, 1998 with respect to
the addition of the information contained in Note 21 thereof to
Group's annual report previously filed on Form 10-K for the
Fiscal Year Ended December 31, 1997 was filed with the Securities
and Exchange Commission by Group.
14
<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized, both on behalf of the registrant and in
his capacity as principal accounting officer of the registrant.
Lexmark International Group, Inc.
(Registrant)
Date: August 11, 1998 By: /s/ David L. Goodnight
--------------- -----------------------
David L. Goodnight
Corporate Controller
(Principal Accounting Officer)
15
<PAGE>
EXHIBIT INDEX
Exhibits:
4.1 Form of Lexmark International, Inc. ("International") 6.75% Senior Notes
due 2008
4.2 Indenture dated as of May 11, 1998 among International, as Issuer, and
Lexmark International Group, Inc., as Guarantor, to the Bank of New
York, as Trustee.
10.1 Lexmark International Group, Inc. Nonemployee Director Stock Plan, Amended
and Restated effective April 30, 1998. +
10.2 Form of Non-Qualified Stock Option Agreement, pursuant to the Lexmark
International Group, Inc. Stock Incentive Plan. +
27 Financial Data Schedule
- ----------------
+ Indicates management contract or compensatory plan, contract or arrangement.
16
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP NO. 529772AC9
LEXMARK INTERNATIONAL, INC.
6.75% SENIOR NOTES DUE 2008
GUARANTEED AS TO PAYMENT OF PRINCIPAL, INTEREST AND ANY OTHER AMOUNT BY LEXMARK
INTERNATIONAL GROUP, INC.
No. R- $150,000,000
Lexmark International, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of ONE HUNDRED FIFTY MILLION Dollars or
such other principal amount (which, when taken together with the principal
amounts of all other Outstanding Securities, shall not exceed $150,000,000 in
the aggregate at any time) as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture, on May 15, 2008 and to
pay interest thereon from May 11, 1998 or from the most recent Interest Payment
<PAGE>
Date to which interest has been paid or duly provided for, semi-annually on May
15 and November 15 in each year, commencing November 15, 1998 at the rate of 6
3/4% per annum, until the principal hereof is paid or made available for
payment, provided that any amount of interest or premium on this Security which
--------
is overdue shall bear interest (to the extent that payment thereof shall be
legally enforceable) at the rate per annum then borne by this Security from the
date such amount is due to the day it is paid or made available for payment, and
such overdue interest shall be payable on demand.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the May 1 or November 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on the relevant Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture. Interest on this
Security shall be computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Issuer maintained
for such purpose in the Borough of Manhattan, The City of New York, and at any
other office or agency maintained by the Issuer for such purpose, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
-------- -------
option of the Issuer payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register; provided, further, that all payments of the principal of (and
-------- -------
<PAGE>
premium, if any) and interest on the Security, any Permitted Holder of which has
given wire transfer instructions to the Issuer or its agent at least 10 Business
Days prior to the applicable payment date, will be required to be made by wire
transfer of immediately available funds to the accounts specified by such
Permitted Holders in such instructions. Notwithstanding the foregoing, payment
of any amount payable in respect of a Global Security will be made in accordance
with the Applicable Procedures of the Depositary.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated: May 11, 1998
LEXMARK INTERNATIONAL, INC.
By
-----------------------------
Name:
Title:
This is one of the Securities referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: May 11, 1998
By
----------------------------
Authorized Signatory
<PAGE>
This Security is one of a duly authorized issue of Securities
of the Issuer designated as its 6 3/4% Senior Notes due 2008 (herein called the
"Securities"), limited in aggregate principal amount to $150,000,000, issued and
to be issued under an Indenture, dated as of May 11, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Issuer, the Guarantor named therein and The Bank of New
York, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Guarantor, the Trustee and the Holders of the Securities and of the terms upon
which the Securities, with the Guarantee endorsed thereon, are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain
limitations therein set forth, the obligations of the Issuer under the Indenture
and this Security are guaranteed pursuant to a Guarantee endorsed hereon as
provided in the Indenture.
Redemption
----------
The Securities are subject to redemption upon not less than 30
nor more than 60 days prior notice to Holders thereof (in the manner provided in
the Indenture) at any time, as a whole or in part, at the election of the
Issuer, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Securities 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 redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate plus 12.5 basis points, plus, in each case (i) and
(ii), accrued interest on such Security to the date of redemption. The amount,
if any, by which the amount specified in clause (ii) exceeds the amount
specified in clause (i) is herein called the "premium." Interest installments
whose Stated Maturity is on or prior to such date of redemption will be payable
to the Holders of such Securities, or one or more predecessor Securities, of
<PAGE>
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities (with the Guarantee of the Guarantor endorsed
thereon) for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
Defeasance
----------
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security (with certain exceptions set
forth therein) or (ii) certain restrictive covenants and Events of Default with
respect to this Security, in each case (i) and (ii) upon compliance with certain
conditions set forth therein.
Modification and Waiver
-----------------------
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the Guarantor and the rights of the Holders of the
Securities under the Indenture at any time by the Issuer, the Guarantor and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Issuer or the
Guarantor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
Events of Default; Remedies
---------------------------
If an Event of Default shall occur and be continu ing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
<PAGE>
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity reasonably satisfactory to it and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 90 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein (or, in the case of
redemption, on or after the date of redemption).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
Registration of Transfer; Exchange
----------------------------------
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Issuer in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar duly
executed by, the Holder hereof or his attorney duly autho rized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated trans feree or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
<PAGE>
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
Miscellaneous
-------------
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Issuer, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
<PAGE>
GUARANTEE
For value received, Lexmark International Group, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Guarantor", which term includes any successor Person under
the Indenture hereinafter referred to) hereby unconditionally and irrevocably
guarantees (the "Guarantee") to the Holder of the Security upon which this
Guarantee is endorsed all obligations of the Issuer under such Security and
under the Indenture with respect to such Security, including the due and
punctual payment of the principal of (and premium, if any) and interest on such
Security, when and as the same shall become due and payable, whether at Stated
Maturity, by declaration of acceleration, call for redemption or otherwise,
according to the terms thereof and the Indenture. In the case of a failure of
the Issuer punctually to make any such payment when and as the same shall become
due and payable (or to perform any of the other obligations under the Indenture
when and as provided therein), the Guarantor hereby agrees to cause such payment
to be made at such time as if such payment were made by the Issuer and according
to the terms of such Security and the Indenture (and to cause any such other
obligation of the Issuer to be performed when and as provided in the Indenture).
The Guarantor hereby agrees that its obligation hereunder and
under the Indenture shall be as if it were principal obligor and not merely
surety, and shall be unconditional, irrespective of the validity, regularity or
enforceability of such Security or the Indenture or the absence of any action to
enforce the same; any creation, exchange, release or non-perfection of any lien
on any collateral for all or of any of the Securities; any election by the
Trustee or any of the Holders in any proceeding, any borrowing or grant of a
security interest by the Issuer or the disallowance of all or any portion of the
claims of the Trustee or any of the Holders for payment of any of the Securities
under, or the application of any provision of, any applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws of
general applicability relating to or affecting creditors' rights; or any waiver
or consent by the Holder of such Security or by the Trustee or either of them
with respect to any provisions thereof or of the Indenture, the obtaining of any
judgment against the Issuer or any action to enforce the same or any other
<PAGE>
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
The Guarantor hereby waives the benefits of diligence,
presentment or demand of payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
lien on any property subject thereto or exhaust any right or take any action
against the Issuer or any other Person or any collateral, any filing of claims
with a court in the event of any insolvency, bankruptcy or similar event
relating to the Issuer, any right to require a proceeding first against the
Issuer, protest or notice with respect to such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in such Security and in this Guarantee. The Guarantor hereby agrees
that, in the event of a default in payment of principal of or any premium or
interest on or of any other amount in respect of such Security, whether at
Stated Maturity, by acceleration, call for redemption or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in the Indenture,
directly against the Guarantor to enforce this Guarantee without first
proceeding against the Issuer. The Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities or to enforce or exercise any other right or remedy with respect to
the Securities, the Guarantor shall pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
The Guarantor hereby irrevocably waives (i) any right to which
it may be entitled in connection with any obligation of any Holder or the
Trustee to sue the Issuer prior to a claim being made against the Guarantor
hereunder and (ii) any right to which it may be entitled to have the assets of
the Issuer first be used as payment of the Issuer's or the Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by the
Guarantor hereunder.
<PAGE>
This Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
No reference herein to the Indenture and no provision of this
Guarantee or of the Indenture shall alter or impair the Guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal (premium, if any) and interest on the Security upon which this
Guarantee is endorsed.
The Guarantor shall be subrogated to all rights of the Holder
of such Security against the Issuer in respect of any amounts paid by the
Guarantor on account of such Security pursuant to the provisions of this
Guarantee or the Indenture; provided, however, that the Guarantor shall not be
-------- -------
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (premium, if any) and interest
on such Security and all other Securities issued under the Indenture shall have
been paid in full.
The Guarantor agrees to pay to the Holder of the Security upon
which this Guarantee is endorsed on demand all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel) incurred by such Holder that
in any way relate to the enforcement of the rights of such Holder under this
Guarantee; provided that the Guarantor shall not be liable for any such expenses
--------
if (i) no payment under this Guarantee is due or (ii) the Guarantor shall not
have received such documentation of such expenses as it may reasonably require.
<PAGE>
The Guarantor hereby makes, for the benefit of the Holder of
the Security upon which this Guarantee is endorsed, the covenants and agreements
applicable to it set forth in the Indenture, including Articles Eight and Ten
thereof, all of which shall be enforceable by the Trustee on behalf of, or by
the Holder of such Security, subject to the terms and conditions set forth in
the Indenture, directly against the Guarantor.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
All terms used in this Guarantee which are defined in the
Indenture referred to in the Security upon which this Guarantee is endorsed
shall have the meanings assigned to them in such Indenture. Reference is made to
Article Thirteen of the Indenture for further provisions with respect to this
Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed.
LEXMARK INTERNATIONAL GROUP, INC.
By:
-----------------------------
Name:
Title:
LEXMARK INTERNATIONAL, INC.,
As Issuer
---------
and
LEXMARK INTERNATIONAL GROUP, INC.,
As Guarantor
------------
to
THE BANK OF NEW YORK,
As Trustee
----------
Indenture
Dated as of May 11, 1998
$ 150,000,000
6 3/4 % SENIOR NOTES DUE 2008
<PAGE>
LEXMARK INTERNATIONAL, INC.
LEXMARK INTERNATIONAL GROUP, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- -------------- ---------
ss.310(a)(1) ............................................... 609
(a)(2)............................................... 609
(a)(3)............................................... Not Applicable
(a)(4)............................................... Not Applicable
(b) ............................................... 608
610
ss. 311 (a) ............................................... 613
(b) ............................................... 613
ss. 312 (a) ............................................... 701
702(a)
(b) ............................................... 702(b)
(c) ............................................... 702(c)
ss. 313 (a) ............................................... 703(a)
(a)(4)............................................... 101
1004
(b) ............................................... 703(a)
(c) ............................................... 703(a)
(d) ............................................... 703(b)
ss. 314 (a) ............................................... 704
(b) ............................................... Not Applicable
(c)(1)............................................... 102
(c)(2)............................................... 102
(c)(3)............................................... Not Applicable
(d) ............................................... Not Applicable
(e) ............................................... 102
ss. 315 (a) ............................................... 601
(b) ............................................... 602
(c) ............................................... 601
(d) ............................................... 601
(e) ............................................... 514
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
Trust Indenture Indenture
Act Section Section
- -------------- ---------
ss. 316 (a) ............................................... 101
(a)(1)(A)............................................ 502
512
(a)(1)(B)............................................ 513
(a)(2)............................................... Not Applicable
(b) ............................................... 508
(c) ............................................... 104(c)
ss. 317 (a)(1)............................................... 503
(a)(2)............................................... 504
(b) ............................................... 1003
ss. 318 (a) ............................................... 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
-1-
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE Definitions and Other Provisions of General Application
SECTION 101. Definitions......................................................2
SECTION 102. Compliance Certificates and Opinions............................15
SECTION 103. Form of Documents Delivered to Trustee..........................15
SECTION 104. Acts of Holders; Record Dates...................................16
SECTION 105. Notices, Etc., to Trustee, Issuer and Guarantor.................19
SECTION 106. Notice to Holders; Waiver.......................................20
SECTION 107. Conflict with Trust Indenture Act...............................20
SECTION 108. Effect of Headings and Table of Contents........................21
SECTION 109. Successors and Assigns..........................................21
SECTION 110. Separability Clause.............................................21
SECTION 111. Benefits of Indenture...........................................21
SECTION 112. Governing Law...................................................21
SECTION 113. Legal Holidays..................................................22
ARTICLE TWO Security Forms
SECTION 201. Forms Generally.................................................22
SECTION 202. Form of Face of Security........................................23
SECTION 203. Form of Reverse of Securit......................................27
SECTION 204. Form of Trustee's Certificate of Authentication.................31
SECTION 205. Form of Guarantee...............................................31
ARTICLE THREE The Securities
SECTION 301. Title and Terms.................................................35
SECTION 302. Denominations...................................................36
SECTION 303. Execution, Authentication, Delivery and Dating..................36
SECTION 304. Temporary Securities............................................37
SECTION 305. Global Securities...............................................38
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SECTION 306. Registration, Registration of Transfer and Exchange.............39
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities................41
SECTION 308. Payment of Interest; Interest Rights Preserved..................42
SECTION 309. Persons Deemed Owners...........................................44
SECTION 310. Cancellation....................................................44
SECTION 311. Computation of Interes.........................................t44
ARTICLE FOUR Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.........................45
SECTION 402. Application of Trust Money......................................47
ARTICLE FIVE Remedies
SECTION 501. Events of Default...............................................47
SECTION 502. Acceleration of Maturity; Rescission and Annulment..............50
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.......................................................51
SECTION 504. Trustee May File Proofs of Claim................................52
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.....53
SECTION 506. Application of Money Collected..................................53
SECTION 507. Limitation on Suits.............................................54
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..........................................55
SECTION 509. Restoration of Rights and Remedies..............................55
SECTION 510. Rights and Remedies Cumulative..................................55
SECTION 511. Delay or Omission Not Waiver....................................56
SECTION 512. Control by Holders..............................................56
SECTION 513. Waiver of Past Defaults.........................................56
SECTION 514. Undertaking for Costs...........................................57
SECTION 515. Waiver of Stay or Extension Law.................................57
ARTICLE SIX The Trustee
SECTION 601. Certain Duties and Responsibilities.............................58
SECTION 602. Notice of Defaults..............................................58
SECTION 603. Certain Rights of Trustee.......................................58
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SECTION 604. Not Responsible for Recitals or Issuance of Securities..........60
SECTION 605. May Hold Securitie..............................................60
SECTION 606. Money Held in Trust.............................................61
SECTION 607. Compensation and Reimbursement..................................61
SECTION 609. Corporate Trustee Required; Eligibility.........................62
SECTION 610. Resignation and Removal; Appointment of Successor...............62
SECTION 611. Acceptance of Appointment by Successor..........................64
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.....64
SECTION 613. Preferential Collection of Claims Against Issuer
or Guarantor..................................................65
SECTION 614. Appointment of Authenticating Agent.............................65
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders........67
SECTION 702. Preservation of Information; Communications to Holders..........68
SECTION 703. Reports by Trustee..............................................68
SECTION 704. Reports by Issuer and Guarantor.................................69
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Guarantor and Issuer May Consolidate, Etc., Only on Certain
Terms........................................................68
SECTION 802. Successor Substituted...........................................71
ARTICLE NINE Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders..............71
SECTION 902. Supplemental Indentures with Consent of Holders.................72
SECTION 903. Execution of Supplemental Indentures............................74
SECTION 904. Effect of Supplemental Indentures...............................74
SECTION 905. Conformity with Trust Indenture Act.............................74
SECTION 906. Reference in Securities to Supplemental Indentures..............74
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ARTICLE TEN Covenants
SECTION 1001. Payment of Principal, Premium and Interest.....................75
SECTION 1002. Maintenance of Office or Agency................................75
SECTION 1003. Money for Security Payments to Be Held in Trust................76
SECTION 1004. Statement by Officers as to Default............................77
SECTION 1005. Existence......................................................78
SECTION 1006. Maintenance of Properties......................................78
SECTION 1007. Payment of Taxes and Other Claims..............................78
SECTION 1008. Limitation on Liens............................................79
SECTION 1009. Limitation on Sale and Leaseback Transactions..................81
SECTION 1010. Certain Covenants to Become Binding on Issuer..................82
SECTION 1011. Waiver of Certain Covenants....................................82
ARTICLE ELEVEN Redemption of Securities
SECTION 1101. Right of Redemption............................................83
SECTION 1102. Applicability of Article.......................................83
SECTION 1103. Election to Redeem; Notice to Trustee..........................83
SECTION 1104. Selection by Trustee of Securities to Be Redeemed..............83
SECTION 1105. Notice of Redemption...........................................84
SECTION 1106. Deposit of Redemption Price....................................85
SECTION 1107. Securities Payable on Redemption Date..........................85
SECTION 1108. Securities Redeemed in Part....................................86
ARTICLE TWELVE Defeasance and Covenant Defeasance
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance....86
SECTION 1202. Defeasance and Discharge.......................................86
SECTION 1203. Covenant Defeasance............................................87
SECTION 1204. Conditions to Defeasance or Covenant Defeasance................88
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SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in
Trust; Miscellaneous Provisions.............................90
SECTION 1206. Reinstatement..................................................91
ARTICLE THIRTEEN Guarantee
SECTION 1301. Guarantee......................................................92
SECTION 1302. Execution and Delivery of Guarantee............................94
SECTION 1303. Subrogation....................................................95
SECTION 1304. Payment of Expenses............................................95
TESTIMONIUM...................................................................95
SIGNATURES AND SEALS..........................................................94
ACKNOWLEDGMENTS...............................................................95
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INDENTURE, dated as of May 11, 1998, among Lexmark
International, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Issuer"), Lexmark International Group,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Guarantor"), each having its principal office at
One Lexmark Centre Drive, Lexington, Kentucky 40550, and The Bank of New York, a
New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE ISSUER AND THE GUARANTOR
The Issuer has duly authorized the creation of an issue of
$150,000,000 aggregate principal amount of its 6 3/4% Senior Notes due 2008
(herein called the "Securities") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture.
The Guarantor desires to unconditionally guarantee the payment
of principal, premium (if any) and interest due under this Indenture and the
Securities, as the same shall become due and payable in accordance with the
terms of this Indenture and the Securities (with the Guarantee of the Guarantor
endorsed thereon), and the performance of all the Issuer's obligations
thereunder, and to provide therefor has duly authorized the execution and
delivery of this Indenture.
All things necessary (i) to make the Securities, when executed
by the Issuer and authenticated and delivered hereunder and duly issued by the
Issuer, the valid obliga tions of the Issuer, (ii) to make the Guarantee of the
Guarantor, when executed by the Guarantor and endorsed on the Securities
executed, authenticated and delivered hereunder, the valid obligation of the
Guarantor and (iii) to make this Indenture a valid agreement of the Issuer and
of the Guarantor, all in accordance with their respective terms, have been done.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
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For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such account- ing principles as are generally accepted at
the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
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"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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 redemption date.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security (including any rules or
procedures providing for payments to be made in immediately available funds), to
the extent applicable to such transaction and as in effect from time to time.
"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
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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.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Authorized Officer" of any Person means the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, a President or
a Vice President, Controller, a Treasurer or an Assistant Treasurer of such
Person.
"Board of Directors" means, with respect to any Person, either
the board of directors or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors with
respect to the Issuer.
"Board Resolution" of the Issuer or the Guarantor means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Issuer or Guarantor, as the case may be, to have been duly adopted by its Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as otherwise expressly
provided or unless the context otherwise requires, each reference herein to a
"Board Resolution" shall mean a Board Resolution of the Issuer.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
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"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.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"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 Securities 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 Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for
such redemption 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,
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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,
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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.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York, at which at any particular time its corporate
trust business shall be administered, which, on the date hereof, is located at
101 Barclay Street, New York, New York 10286, Attention: Corporate Trust
Administration, Floor 21 West.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"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.
"Defaulted Interest" has the meaning specified in Section 308.
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"Depositary" means a clearing agency that is registered as
such under the Exchange Act and is designated by the Issuer to act as Depositary
for the Securities (or any successor clearing agency so registered).
"DTC" means The Depository Trust Company, a New York
corporation (or successor Person).
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security that evidences all or a
part of the Securities and bears the first legend set forth in Section 204.
"Guarantee" has the meaning specified in the form of Guarantee
set forth in Section 205.
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor 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
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include endorsements by such Person for collection or deposit, in either case in
the ordinary course of business.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
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"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
instalment of interest on the Securities.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor Person.
"Issuer Request" or "Issuer Order" means a written request or
order signed in the name of the Issuer by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, Controller and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"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).
"Material Subsidiary" means, any Subsidiary (other than
Lexmark Receivables Corporation or any other Person established as a "bankruptcy
remote" Subsidiary of the Guarantor for the purposes of acquiring accounts
receivable pursuant to a Permitted Receivables Financing), the (a) assets, (b)
revenues or (c) operating profit (excluding intercompany receivables and
revenues that would be eliminated upon consolidation in accordance with GAAP) of
which are, at the time of determination (determined, in the case of clause (a),
as at the end of the most recently concluded fiscal quarter, and, in the case of
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clauses (b) and (c), in respect of the most recent period of four consecutive
fiscal quarters of the Guarantor for which the relevant financial information is
available), equal to or greater than five percent of the consolidated assets or
consolidated operating profit or ten percent of the consolidated revenues
(excluding intercompany receivables and revenue that would be eliminated upon
consolidation in accordance with GAAP), respectively, of the Guarantor and its
subsidiaries at such time. Upon the acquisition of a new subsidiary,
qualification as a "Material Subsidiary" shall be determined on a pro forma
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basis on the assumption that such subsidiary had been acquired at the beginning
of the relevant period of four consecutive fiscal quarters.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"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.
"Officers' Certificate" of the Issuer or the Guarantor means a
certificate signed by any two Authorized Officers of the Issuer or the
Guarantor, as the case may be, and delivered to the Trustee. One of the officers
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signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Issuer or the
Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Issuer or the Guarantor.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
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(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancella tion;
(ii) Securities for whose payment or redemp tion money in the
necessary amount has been there tofore deposited with the Trustee or
any Paying Agent (other than the Issuer or the Guarantor) in trust or
set aside and segregated in trust by the Issuer or the Guarantor (if
the Issuer or the Guarantor, as the case may be, shall act as a Paying
Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities which have been defeased pursuant to Section 1202
hereof; and
(iv) Securities which have been paid pursuant to Section 307 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Issuer;
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provided, however, that in determining whether the Holders of the requisite
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principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer, the Guarantor or any other obligor upon the Securities or the
Guarantee or any Affiliate of the Issuer, the Guarantor or such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer, the Guarantor or any other obligor upon the Securities or the
Guarantee or any Affiliate of the Issuer, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Issuer or
the Guarantor to pay the principal, interest and any other amounts payable in
respect of any Securities on behalf of the Issuer or the Guarantor.
"Permitted Holder" at any time means any Person who, at such
time, is the Holder of at least $1,000,000 in aggregate principal amount of
Securities.
"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.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"premium" has the meaning specified in Section 203.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Issuer to serve as Quotation Agent.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"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
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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 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 preceding such redemption date.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
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"Responsible Officer", when used with respect to the Trustee,
means any vice president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"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 have been or are 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".
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 306.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or
any instalment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such instalment of
interest is due and payable.
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<PAGE>
"Subsidiary" of any Person means any corporation, partnership,
limited liability company, joint venture, 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instru ment was executed; provided,
--------
however, that in the event the Trust Indenture Act of 1939 is amended after such
- -------
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Government Obligation" means (x) any security which is
(i) a direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
- --------
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
-14-
<PAGE>
by such depositary receipt.
"Vice President", when used with respect to the Issuer or, the
Guarantor means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly Owned Subsidiary " of any Person means any Subsidiary
of such Person 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 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Issuer or the Guarantor
to the Trustee to take any action under any provision of this Indenture, the
Issuer or the Guarantor, as the case may be, shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act and
this Indenture. Each such certificate or opinion shall be given in the form of
an Officers' Certificate of the Issuer or Guarantor, if to be given by an
officer of the Issuer or the Guarantor, as the case may be, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the defini tions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
-15-
<PAGE>
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condi tion has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer or the Guarantor stating that the information with respect to such
factual matters is in the possession of the Issuer or the Guarantor, as the case
may be, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
-16-
<PAGE>
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be con solidated
and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direc tion, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee, the
Issuer and the Guarantor, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certi ficate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also consti tute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
-17-
<PAGE>
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, the
Issuer or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Issuer may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders of Securities, provided that the Issuer may not set a record
--------
date for, and the provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or direction referred
to in the next paragraph (f). If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided that no such action
--------
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Issuer from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Issuer, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
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<PAGE>
(f) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to join in
the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
--------
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Issuer's expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Issuer in writing
and to each Holder of Securities of the relevant series in the manner set forth
in Section 106.
(g) With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may designate any day as
the "Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
-19-
<PAGE>
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
SECTION 105. Notices, Etc., to Trustee, Issuer and Guarantor.
-----------------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Issuer or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, addressed to it
at the address of the Guarantor's principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Issuer or Guarantor.
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<PAGE>
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provi sion of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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<PAGE>
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Issuer
or the Guarantor shall bind its successors and assigns, whether so expressed or
not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities
or the Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or the
Guarantee, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
-------------
THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL EACH BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Securities, the Guarantee to be endorsed thereon and the
Trustee's certificates of authentication shall be in substantially the forms set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, con sistently herewith, be
determined by the officers executing such Securities or Guarantee, as the case
may be, as evidenced by their execution thereof.
The definitive Securities and Guarantee to be endorsed thereon
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities or
Guarantee, as the case may be, as evidenced by their execution thereof.
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<PAGE>
Upon their original issuance, the Securities shall be issued
in the form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for DTC,
for credit by DTC to the respective accounts of beneficial owners of the
Securities represented thereby (or such other accounts as they may direct).
SECTION 202. Form of Face of Security.
------------------------
[If the Security is a Global Security, then insert -- THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If the Security is a Global Security and DTC is to be the
Depositary therefor, then insert (with such changes as DTC may request and are
not otherwise inconsistent herewith) -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAY MENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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<PAGE>
CUSIP NO. 529772AC9
LEXMARK INTERNATIONAL, INC.
6 3/4% SENIOR NOTES DUE 2008
GUARANTEED AS TO PAYMENT OF PRINCIPAL, INTEREST AND ANY OTHER AMOUNT BY LEXMARK
INTERNATIONAL GROUP, INC.
No. $
------------- ---------
Lexmark International, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ,
------------------
or registered assigns, the principal sum of Dollars [if
----------------------
the Security is a Global Security, then insert -- , or such other principal
amount (which, when taken together with the principal amounts of all other
Outstanding Securities, shall not exceed $150,000,000 in the aggregate at any
time) as may be set forth in the records of the Trustee hereinafter referred to
in accordance with the Indenture,] on May 15, 2008 and to pay interest thereon
from May 11, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on May 15 and
November 15 in each year, commencing November 15, 1998 at the rate of 6 3/4 %
per annum, until the principal hereof is paid or made available for payment,
provided that any amount of interest or premium on this Security which is
- --------
overdue shall bear interest (to the extent that payment thereof shall be legally
enforceable) at the rate per annum then borne by this Security from the date
such amount is due to the day it is paid or made available for payment, and such
overdue interest shall be payable on demand.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
-25-
<PAGE>
payable to the Holder on the relevant Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Interest on this
Security shall be computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Issuer maintained
for such purpose in the Borough of Manhattan, The City of New York, and at any
other office or agency maintained by the Issuer for such purpose, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
-------- -------
option of the Issuer payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register; provided, further, that all payments of the principal of (and
-------- -------
premium, if any) and interest on the Security, any Permitted Holder of which has
given wire transfer instructions to the Issuer or its agent at least 10 Business
Days prior to the applicable payment date, will be required to be made by wire
transfer of immediately available funds to the accounts specified by such
Permitted Holders in such instructions. Notwithstanding the foregoing, payment
of any amount payable in respect of a Global Security will be made in accordance
with the Applicable Procedures of the Depositary.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
-26-
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed.
Dated:
LEXMARK INTERNATIONAL, INC.
By
--------------------------------
Name:
Title:
-27-
<PAGE>
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities
of the Issuer designated as its 6 3/4% Senior Notes due 2008 (herein called the
"Securities"), limited in aggregate principal amount to $150,000,000, issued and
to be issued under an Indenture, dated as of May 11, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Issuer, the Guarantor named therein and The Bank of New
York, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Guarantor, the Trustee and the Holders of the Securities and of the terms upon
which the Securities, with the Guarantee endorsed thereon, are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain
limitations therein set forth, the obligations of the Issuer under the Indenture
and this Security are guaranteed pursuant to a Guarantee endorsed hereon as
provided in the Indenture.
Redemption
----------
The Securities are subject to redemption upon not less than 30
nor more than 60 days prior notice to Holders thereof (in the manner provided in
the Indenture) at any time, as a whole or in part, at the election of the
Issuer, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Securities 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 redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate plus 12.5 basis points, plus, in each case (i) and
(ii), accrued interest on such Security to the date of redemption. The amount,
if any, by which the amount specified in clause (ii) exceeds the amount
specified in clause (i) is herein called the "premium." Interest installments
whose Stated Maturity is on or prior to such date of redemption will be payable
-28-
<PAGE>
to the Holders of such Securities, or one or more predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities (with the Guarantee of the Guarantor endorsed
thereon) for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
Defeasance
----------
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security (with certain exceptions set
forth therein) or (ii) certain restrictive covenants and Events of Default with
respect to this Security, in each case (i) and (ii) upon compliance with certain
conditions set forth therein.
Modification and Waiver
-----------------------
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the Guarantor and the rights of the Holders of the
Securities under the Indenture at any time by the Issuer, the Guarantor and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Issuer or the
Guarantor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
-29-
<PAGE>
Events of Default; Remedies
---------------------------
If an Event of Default shall occur and be continu ing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity reasonably satisfactory to it and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 90 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein (or, in the case of
redemption, on or after the date of redemption).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
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Registration of Transfer; Exchange
----------------------------------
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Issuer in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar duly
executed by, the Holder hereof or his attorney duly autho rized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated trans feree or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
Miscellaneous
-------------
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Issuer, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:
By
--------------------------
Authorized Signatory
SECTION 205. Form of Guarantee.
-----------------
GUARANTEE
For value received, Lexmark International Group, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Guarantor", which term includes any successor Person under
the Indenture hereinafter referred to) hereby unconditionally and irrevocably
guarantees (the "Guarantee") to the Holder of the Security upon which this
Guarantee is endorsed all obligations of the Issuer under such Security and
under the Indenture with respect to such Security, including the due and
punctual payment of the principal of (and premium, if any) and interest on such
Security, when and as the same shall become due and payable, whether at Stated
Maturity, by declaration of acceleration, call for redemption or otherwise,
according to the terms thereof and the Indenture. In the case of a failure of
the Issuer punctually to make any such payment when and as the same shall become
due and payable (or to perform any of the other obligations under the Indenture
when and as provided therein), the Guarantor hereby agrees to cause such payment
to be made at such time as if such payment were made by the Issuer and according
to the terms of such Security and the Indenture (and to cause any such other
obligation of the Issuer to be performed when and as provided in the Indenture).
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<PAGE>
The Guarantor hereby agrees that its obligation hereunder and
under the Indenture shall be as if it were principal obligor and not merely
surety, and shall be unconditional, irrespective of the validity, regularity or
enforceability of such Security or the Indenture or the absence of any action to
enforce the same; any creation, exchange, release or non-perfection of any lien
on any collateral for all or of any of the Securities; any election by the
Trustee or any of the Holders in any proceeding, any borrowing or grant of a
security interest by the Issuer or the disallowance of all or any portion of the
claims of the Trustee or any of the Holders for payment of any of the Securities
under, or the application of any provision of, any applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws of
general applicability relating to or affecting creditors' rights; or any waiver
or consent by the Holder of such Security or by the Trustee or either of them
with respect to any provisions thereof or of the Indenture, the obtaining of any
judgment against the Issuer or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
The Guarantor hereby waives the benefits of diligence,
presentment or demand of payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
lien on any property subject thereto or exhaust any right or take any action
against the Issuer or any other Person or any collateral, any filing of claims
with a court in the event of any insolvency, bankruptcy or similar event
relating to the Issuer, any right to require a proceeding first against the
Issuer, protest or notice with respect to such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in such Security and in this Guarantee. The Guarantor hereby agrees
that, in the event of a default in payment of principal of or any premium or
interest on or of any other amount in respect of such Security, whether at
Stated Maturity, by acceleration, call for redemption or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in the Indenture,
directly against the Guarantor to enforce this Guarantee without first
proceeding against the Issuer. The Guarantor agrees that if, after the
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occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities or to enforce or exercise any other right or remedy with respect to
the Securities, the Guarantor shall pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
The Guarantor hereby irrevocably waives (i) any right to which
it may be entitled in connection with any obligation of any Holder or the
Trustee to sue the Issuer prior to a claim being made against the Guarantor
hereunder and (ii) any right to which it may be entitled to have the assets of
the Issuer first be used as payment of the Issuer's or the Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by the
Guarantor hereunder.
This Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
No reference herein to the Indenture and no provision of this
Guarantee or of the Indenture shall alter or impair the Guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
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of the principal (premium, if any) and interest on the Security upon which this
Guarantee is endorsed.
The Guarantor shall be subrogated to all rights of the Holder
of such Security against the Issuer in respect of any amounts paid by the
Guarantor on account of such Security pursuant to the provisions of this
Guarantee or the Indenture; provided, however, that the Guarantor shall not be
-------- -------
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (premium, if any) and interest
on such Security and all other Securities issued under the Indenture shall have
been paid in full.
The Guarantor agrees to pay to the Holder of the Security upon
which this Guarantee is endorsed on demand all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel) incurred by such Holder that
in any way relate to the enforcement of the rights of such Holder under this
Guarantee; provided that the Guarantor shall not be liable for any such expenses
--------
if (i) no payment under this Guarantee is due or (ii) the Guarantor shall not
have received such documentation of such expenses as it may reasonably require.
The Guarantor hereby makes, for the benefit of the Holder of
the Security upon which this Guarantee is endorsed, the covenants and agreements
applicable to it set forth in the Indenture, including Articles Eight and Ten
thereof, all of which shall be enforceable by the Trustee on behalf of, or by
the Holder of such Security, subject to the terms and conditions set forth in
the Indenture, directly against the Guarantor.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
All terms used in this Guarantee which are defined in the
Indenture referred to in the Security upon which this Guarantee is endorsed
shall have the meanings assigned to them in such Indenture. Reference is made to
Article Thirteen of the Indenture for further provisions with respect to this
Guarantee.
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<PAGE>
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed.
LEXMARK INTERNATIONAL GROUP, INC.
By:
---------------------------------
Name:
Title:
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $150,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 307, 906 or 1108.
The Securities shall be known and designated as the "6 3/4%
Senior Notes due 2008" of the Issuer. Their Stated Maturity shall be May 15,
2008 and they shall bear interest at the rate of 6 3/4% per annum, from May 11,
1998 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable semi- annually on May 15
and November 15, commencing November 15, 1998, until the principal thereof is
paid or made available for payment.
The principal of (and premium, if any) and inter est on the
Securities shall be payable at the office or agency of the Issuer in the Borough
of Manhattan, The City of New York, New York, maintained for such purpose and at
any other office or agency maintained by the Issuer for such purpose; provided,
--------
however, that at the option of the Issuer payment of interest may be made by
- -------
check mailed to the address of the Person entitled thereto as such address shall
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appear in the Security Register; provided, further, that all payments of the
-------- -------
principal of (and premium, if any) and interest on Securities, the Permitted
Holders of which have given wire transfer instructions to the Issuer or its
agent at least 10 Business Days prior to the applicable payment date, will be
required to be made by wire transfer of immediately available funds to the
accounts specified by such Permitted Holders in such instructions.
Notwithstanding the foregoing, payment of any amount payable in respect of a
Global Security will be made in accordance with the applicable procedures of the
Depositary.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subject to defeasance at the option of
the Issuer as provided in Article Twelve.
The Securities shall be Guaranteed by the Guarantor as
provided in Article Thirteen.
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in regis tered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Issuer by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents. The signature of any of these officers on the Securities
may be manual or facsimile.
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<PAGE>
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwith standing that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities executed by the
Issuer and having endorsed (by attachment or imprint) thereon the Guarantee
executed as provided in Section 1302 by the Guarantor to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities with such Guarantee endorsed thereon; and the
Trustee in accordance with such Issuer Order shall authenticate and deliver such
Securities with such Guarantee endorsed thereon as in this Indenture provided
and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and that the Guarantee has been duly endorsed thereon.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities each with the
Guarantee of the Guarantor endorsed thereon, the Issuer may execute, and upon
Issuer Order the Trustee shall authenticate and deliver, temporary Securities
each with a temporary Guarantee endorsed thereon, which Securities and Guarantee
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities and Guarantee, respectively, in lieu of which they are issued and
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<PAGE>
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities and Guarantee may determine, as
evidenced by their execution thereof.
If temporary Securities are issued, the Issuer will cause
definitive Securities, each with the Guarantee of the Guarantor endorsed
thereon, to be prepared without unreasonable delay. After the preparation of
definitive Securities, each with the Guarantee of the Guarantor endorsed
thereon, the temporary Securities shall be exchangeable for definitive
Securities with such definitive Guarantee endorsed thereon, upon surrender of
the temporary Securities at any office or agency of the Issuer designated
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations each
having endorsed thereon a definitive Guarantee executed by the Guarantor. Until
so exchanged the temporary Securities and Guarantee endorsed thereon shall in
all respects be entitled to the same benefits under this Indenture as the
definitive Securities and Guarantee, respectively.
SECTION 305. Global Securities.
-----------------
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the Issuer for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary (A) has notified the Issuer that it
is unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act or
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(ii) there shall have occurred and be continuing an Event of Default with
respect to such Global Security.
(c) Subject to Clause (b) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof shall
be registered in such names as the Depositary for such Global Security shall
direct.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Article Three, Section 906 or
1108 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture, the Securities and the Guarantee. To the extent any
Securities are evidenced by a Global Security (i) the Trustee may deal with the
Depositary as the Holder of such Securities, (ii) the rights of the beneficial
owners of such Securities shall be exercised only through the Depositary and
shall be limited to those established by law and agreement among such beneficial
owners, the Depositary and direct participants of the Depositary, (iii) the
Depositary may make book-entry transfers among the direct participants of the
Depositary and may receive and transmit distributions of principal (and premium,
if any) and interest on the Securities to such direct participants, and (iv) the
direct participants of the Depositary shall have no rights under this Indenture
or under or with respect to any such Securities held on their behalf by the
Depositary, and the Depositary may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of such Securities for
all purposes whatsoever.
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SECTION 306. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Issuer shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Issuer designated pursuant to Section 1002
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securi ties as herein provided.
Upon surrender for registration of transfer of any Security at
an office or agency of the Issuer designated pursuant to Section 1002 for such
purpose, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount, with each such new Security having endorsed thereon the Guarantee
executed by the Guarantor.
At the option of the Holder, Securities may be exchanged for
new Securities of any authorized denominations and of a like aggregate principal
amount, with each such new Security having endorsed thereon the Guarantee
executed by the Guarantor, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities and the Guarantee endorsed thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Issuer and the Guarantor, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities and the
Guarantee endorsed thereon, respectively, surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Trustee) be
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<PAGE>
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registra tion of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of a like principal amount, having endorsed thereon the
Guarantee executed by the Guarantor and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Issuer and the Trustee (i)
evidence to their satisfaction of the destruc tion, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them, the Guarantor and any agent of any of them or the Guarantor
harmless, then, in the absence of notice to the Issuer or the Trustee that such
Security has been acquired by a bona fide purchaser, the Issuer shall execute
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of a like principal amount, having endorsed
thereon the Guarantee executed by the Guarantor and bearing a number not
contemporaneously outstanding.
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<PAGE>
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security, and the Guarantee endorsed thereon,
shall constitute an original additional contractual obligation of the Issuer and
the Guarantor, respectively, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities and the Guarantee, respectively, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 308. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each case,
as provided in Clause (1) or (2) below:
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<PAGE>
(1) The Issuer may elect to make pay ment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are regis tered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Issuer shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the Issuer
of such Special Record Date and, in the name and at the expense of the Issuer,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder in the manner provided
in Section 106, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
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Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Issuer may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Issuer to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of
transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 308) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Issuer, the Guarantor, the Trustee nor any agent of the Issuer, the
Guarantor or the Trustee shall be affected by notice to the contrary.
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<PAGE>
SECTION 310. Cancellation.
------------
All Securities surrendered for payment, redemp tion,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and, together with the Guarantee
endorsed thereon, shall be promptly canceled by it. The Issuer may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Securities so delivered shall, together with the Guarantee
endorsed thereon, be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee, together with the Guarantee endorsed therein,
shall be disposed of as directed by an Issuer Order, provided, however, that the
-------- -------
Trustee shall not de required to destroy such cancelled Securities.
SECTION 311. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Issuer Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Issuer, shall execute proper instru ments
acknowledging satisfaction and discharge of this Indenture, when
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<PAGE>
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 307 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Issuer or the Guarantor and thereafter repaid to the Issuer or the
Guarantor or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer,
and the Issuer or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of
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Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be (provided that any such amount
--------
to be deposited for principal, premium (if any) and interest due on a
future date is determinable as provided herein when such deposit is
made);
(2) the Issuer or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Issuer and the Guarantor; and
(3) the Issuer and the Guarantor have delivered to the Trustee
Officers' Certificates of the Issuer and the Guarantor, respectively, and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and the Guarantor to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer or the Guarantor acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal,
premium (if any) and interest for whose payment such money has been deposited
with the Trustee.
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any, on)
any Security at its Maturity; provided that failure by the Issuer to make such a
--------
payment shall not constitute an Event of Default if the Guarantor makes such
payment as required when it becomes due and payable; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; provided that failure by the Issuer to make such a payment shall not
constitute an Event of Default if the Guarantor makes such payment as required
during such 30-day period; or
(3) default in the performance, or breach, of any covenant or warranty
of the Issuer or the Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section 501 specifically dealt with), and continuance of such default or breach
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for a period of 90 days after there has been given, in the manner provided in
Section 106, to the Issuer by the Trustee or to the Issuer and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(4) a default or defaults under any one or more 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 of its Subsidiaries, having a principal amount outstanding,
individually or in the aggregate of at least $25,000,000, and whether existing
on or created after the date of this Indenture, which default or defaults,
individually or in the aggregate, (A) constitute a failure to pay at least
$25,000,000, 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 (B) have resulted in acceleration of any portion of such Debt having
an aggregate principal amount equal to or exceeding $25,000,000, in each case
(A) and (B) without such overdue or accelerated amount having been discharged,
or such acceleration having been rescinded or annulled, within 30 days after
written notice of such default has been given, in the manner provided in Section
106, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Guarantor, the Issuer or any other
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Material Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Guarantor, the Issuer or any other Material
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Guarantor, the Issuer or any other Material Subsidiary , as the case may
be, or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(6) the commencement by the Guarantor, the Issuer or any other Material
Subsidiary of a voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the
Guarantor, the Issuer or any other Material Subsidiary , as the case may be, in
an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestration or other
similar official of the Guarantor, the Issuer or any other Material Subsidiary ,
as the case may be, or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Guarantor, the Issuer or any other Material
Subsidiary, as the case may be, in furtherance of any such action.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default
specified in Section 501(5) or 501(6) occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal of all
the Securities to be due and payable immediately, by a notice in writing to the
Issuer (and to the Trustee if given by Holders), and upon any such declaration
such principal shall become immediately due and payable. If an Event of Default
specified in Section 501(5)or 501(6) occurs, the principal of all the Securities
shall automatically, and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate principal amount of the Outstanding Securities, by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate provided therefor in the
Securities,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided therefor in
the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Issuer covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days without such payment being made by the Guarantor in such period, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof without such payment being made by
the Guarantor when it becomes due and payable,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
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overdue principal and premium and on any overdue interest, at the rate provided
therefor in the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Issuer, the
Guarantor or any other obligor upon the Securities or the property of the Issuer
or its creditors or of the Guarantor or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions, including participation as a member, voting or otherwise,
of any committee of creditors, authorized under the Trust Indenture Act in order
to have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestration
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
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affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities or the Guarantee may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any)and interest, respectively;
and
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THIRD: To the Issuer.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 90 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 90-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
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provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 308) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
including under the Guarantee, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 307, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities shall 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, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Inden ture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
--------
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Issuer
or the Guarantor.
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SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
Each of the Issuer and the Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Issuer and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwith standing the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it. Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
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SECTION 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default
hereunder actually known to a Responsible Officer of the Trustee as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 501(3), no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Sec tion, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Issuer or Guarantor mentioned
herein shall be sufficiently evidenced by an Issuer Request or Guarantor
Request, as the case may be, or by an Issuer Order or Guarantor Order, as the
case may be, and any resolution of the Board of Directors of the Issuer or the
Guarantor, as the case may be, may be sufficiently evidenced by a Board
Resolution of the Issuer or the Guarantor, as the case may be;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or estab lished prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
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be herein specifically pre scribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with coun sel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certifi cate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney;
and
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securi ties and the
Guarantee endorsed thereon, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer or the Guarantor, as the case may
be, and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture,
the Securities or the Guarantee endorsed thereon. The Trustee shall not be
accountable for the use or application by the Issuer of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Issuer or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Issuer, the
Guarantor and any other obligor upon the Securities and the Guarantee with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
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SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Issuer or the Guarantor, as the case may be.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Issuer agrees
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the
Issuer and the Trustee shall from time to time agree (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
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SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such,
has a combined capital and surplus of at least $50,000,000 and has its Corporate
Trust Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and the Issuer. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
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after the giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Issuer or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request therefor by
the Issuer or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent juris diction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Issuer, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapa bility,
or the occurrence of such vacancy, a successor Trustee shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Issuer and the retiring Trustee, the successor Trustee so
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appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Issuer.
If no successor Trustee shall have been so appointed by the Issuer or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resigna tion and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer, the Guarantor and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Issuer, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Issuer and the Guarantor shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the cor porate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securi ties shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conver sion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Issuer or Guarantor.
-------------------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Issuer, the Guarantor or any other obligor upon the Securities or the Guarantee,
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Issuer, the Guarantor or any such
other obligor.
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SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer, partial redemption or pursuant to Section 307, and Securities so
authenticated, and the Guarantee endorsed thereon, shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if such Securities had been authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Issuer and shall at all times be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenti cating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
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paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Issuer and shall give written notice of
such appointment, in the manner provided in Section 106, to all Holders. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Sec tion, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the
within-mentioned Indenture.
The Bank of New York,
As Trustee
By
----------------------------------,
As Authenticating Agent
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By
----------------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders.
--------------------------------------------------------
The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and ad dresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities or the
Guarantee, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuer, the Guarantor and the Trustee that neither the
Issuer, the Guarantor nor the Trustee nor any agent of any of them shall be held
accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of this
Indenture, deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Issuer. The
Issuer will notify the Trustee in writing when the Securities are listed on any
stock exchange.
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SECTION 704. Reports by Issuer and Guarantor.
-------------------------------
The Issuer and the Guarantor shall file with the Trustee and
the Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Guarantor and Issuer May Consolidate, Etc., Only on Certain Terms.
-----------------------------------------------------------------
Each of the Guarantor and the Issuer shall 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:
(1) in case the Guarantor or the Issuer shall
consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the
Guarantor or the Issuer, as the case may be, is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Guarantor or the Issuer, as the case may
be, substantially as an entirety, if other than the Guarantor or the
Issuer, as the case may be, shall be a corporation, partnership, trust,
limited liability company or other entity, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume,
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by an indenture supple mental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all
the Securities and the performance or observance of every covenant of
this Indenture on the part of the Guarantor or the Issuer, as the case
may be, to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(3) if, as a result of any such consolidation or
merger or such sale, transfer, lease or other disposition, properties
or assets of the Guarantor or the Issuer, as the case may be, would
become subject to a Lien, the incurrence of which would not be
permitted by Section 1008, the Guarantor, the Issuer or such continuing
Person, as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior
to) the Debt secured by such Lien as provided in Section 1008; and
(4) the Guarantor and the Issuer have delivered to
the Trustee Officers' Certificates of both the Guarantor and the
Issuer, respectively, and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
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SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Guarantor or the Issuer, as the
case may be, with, or merger of the Guarantor or the Issuer, as the case may be,
into, any other Person or any sale, transfer, lease or other disposition of all
or substantially all the properties and assets of the Guarantor or the Issuer,
as the case may be, in accordance with Section 801, the successor Person formed
by such consolidation or into which the Guarantor or the Issuer, as the case may
be, is merged or to which such sale, transfer, lease or other disposition is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor or the Issuer, as the case may be, under this Indenture
with the same effect as if such successor Person had been named as the Guarantor
or the Issuer, as the case may be, herein, and thereafter, except in the case of
a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities or the Guarantee, as the case
may be.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Issuer, when
authorized by a Board Resolution of the Issuer, the Guarantor, when authorized
by a Board Resolution of the Guarantor, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, the Issuer and the Guarantor for any of the
following purposes:
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(1) to evidence the succession of another Person to the Issuer or the
Guarantor and the assumption by any such successor of the covenants of the
Issuer or the Guarantor, as applicable, herein and in the Securities and the
Guarantee; or
(2) to add to the covenants of the Issuer or the Guarantor for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Issuer or the Guarantor; or
(3) to secure the Securities pursuant to the requirements of Section
1008 or other wise; or
(4) to cure any ambiguity, defect or inconsistency herein, provided
--------
that such action pursuant to this Clause (4) shall not materially and adversely
affect the interests of the Holders;
(5) to comply with any requirements of the Securities and Exchange
Commission in connection with the qualification of this Indenture under the
Trust Indenture Act;
(6) to evidence and provide for the acceptance of appointments
hereunder with respect to the Securities by a successor Trustee in accordance
herewith; and
(5) to make any change that does not materially and adversely affect
the interests of the Holders.
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902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than the majority
in principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Issuer and the Trustee, the Issuer, when authorized by a Board
Resolution of the Issuer, the Guarantor, when authorized by a Board Resolution
of the Guarantor, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
- -------- -------
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or),
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011 except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
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consent of the Holder of each Outstanding Security affected thereby, or
(4) modify the obligations of the Guarantor under the Guarantee or
Section 1301 with respect to any of the obligations of the Issuer that cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or indemnities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities so modified as to con form, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer, guaranteed by the Guarantor and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Issuer will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Issuer will maintain, in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer or the
Guarantor in respect of the Securities, the Guarantee and this Indenture may be
served. The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and each of the Issuer and the Guarantor hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Issuer will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Issuer or the Guarantor shall at any time act as its
own Paying Agent, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
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Whenever the Issuer or the Guarantor shall have one or more
Paying Agents, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities, deposit (or, if the Issuer has deposited
with the Trustee any trust funds pursuant to Section 1204(2), cause the Trustee
therefor to deposit) with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Issuer or the Guarantor, as the case may be,
will promptly notify the Trustee of its action or failure so to act.
The Issuer or the Guarantor will cause each Paying Agent other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Issuer (or any other obligor upon the
Securities, including the Guarantor) in the making of any payment in respect of
the Securities, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent as such.
The Issuer or the Guarantor may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Issuer Order or Guarantor Order, as the case may be, direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer,
the Guarantor or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer, the Guarantor
or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer or the Guarantor, in trust for the payment of the
principal of (and premium, if any) or interest on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Issuer or the Guarantor on
Issuer Request, or (if then held by the Issuer or the Guarantor) shall be
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discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer and the Guarantor for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer or the Guarantor as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
-------- -------
such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer or the
Guarantor, as the case may be.
SECTION 1004. Statement by Officers as to Default.
-----------------------------------
Each of the Issuer and the Guarantor will deliver to the
Trustee, within 120 days after the end of each of the fiscal years ending after
the date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Issuer or the Guarantor, as the case may
be, is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Issuer or the
Guarantor, as the case may be, shall be in default, specifying all such defaults
and the nature and status thereof of which the signers may have knowledge.
SECTION 1005. Existence.
---------
Subject to Article Eight, each of the Guarantor and the Issuer
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises;
provided, however, that neither the Guarantor nor the Issuer shall be required
to preserve any such right or franchise if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
its business and that the loss thereof is not disadvantageous in any material
respect to the Holders.
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SECTION 1006. Maintenance of Properties.
-------------------------
The Guarantor will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Guarantor may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, that nothing in this Section shall prevent the Guarantor from
- -------
discontinuing the operation or maintenance of any of such properties if such
discon tinuance is, in the judgment of the Guarantor, desirable in the conduct
of its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
---------------------------------
The Guarantor will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Guarantor or any Subsidiary
or upon the income, profits or property of the Guarantor or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Guarantor or any Subsidiary;
provided, however, that the Guarantor shall not be required to pay or discharge
- -------- -------
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. Limitation on Liens.
-------------------
(a) 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
this Indenture to secure Debt without making, or causing such Subsidiary to
make, effective provision for securing the Securities(and, if the Guarantor may
so determine, any other Debt of the Guarantor or such Subsidiary that is not
subordinated in right or payment to the Securities) (x) equally and ratably with
such Debt as to such property or assets for as long as such Debt will be so
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secured or (y) in the event such Debt is subordinated in right of payment to the
Securities, prior to such Debt as to such property for as long as such Debt will
be so secured.
The restrictions in the preceding paragraph will not apply to
Liens existing on the date of this Indenture or to:
(i) Liens securing only the Securities;
(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 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
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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, any state thereof or the District of Columbia, 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 this
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
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<PAGE>
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 sub-clauses (iii),
(iv) and (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 refunding;
(b) In addition to the foregoing, the Guarantor and its
Subsidiaries may, without equally and ratably securing the Securities, 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 this Indenture and otherwise prohibited
by this Indenture and (ii) the Attributable Value of all Sale and Leaseback
Transactions entered into on or after the date of this Indenture and otherwise
prohibited by this Indenture does not exceed 15% of Consolidated Net Tangible
Assets.
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<PAGE>
SECTION 1009. 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 of
Section 1008(b) without equally and ratably securing the Securities; (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 Securities or other debt of the Issuer
that ranks pari passu with the Securities i right of payment; or (iii) the
transaction is solely between the Guarantor and a Wholly Owned Subsidiary or
between Wholly Owned Subsidiaries but only for as long as such Subsidiary or
Subsidiaries are Wholly Owned Subsidiaries.
SECTION 1010. Certain Covenants to Become Binding on Issuer.
---------------------------------------------
If at any time the Issuer ceases to be a Subsidiary of the
Guarantor, the covenants set forth in Section 1006 through 1009 shall be
covenants of and be binding on not only the Guarantor but also the Issuer.
Insofar as such covenants become covenants of and are binding on the Issuer, all
references therein (and in the defined terms used therein) to the Guarantor or
any subsidiary of the Guarantor shall be deemed to refer to the Issuer or any
subsidiary of the Issuer, as the case may be.
SECTION 1011. Waiver of Certain Covenants.
---------------------------
The Issuer and the Guarantor may each omit in any particular
instance to comply with any covenant or condition set forth in Sections 1005
through 1010 inclusive (or in any covenant provided pursuant to Section 901(2),
if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
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<PAGE>
waiver shall become effective, the obligations of the Issuer or the Guarantor,
as the case may be, and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Issuer,
as a whole or from time to time in part, at any time the Redemption Price
specified in the form of Security hereinbefore set forth, together with accrued
interest to the date of redemption.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Issuer as
permitted by any provision of this Indenture shall be made in accordance with
such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Issuer to redeem any Securities pursuant to
Section 1101 shall be evidenced by Board Resolutions of the Issuer and the
Guarantor. In case of any redemption of less than all the Securities, the Issuer
shall, at least 60 days prior to the redemption date fixed by the Issuer (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such redemption date and of the principal amount of Securities to be redeemed.
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SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the date fixed for redemption by the Trustee, from the Outstanding
Securities not previously called for redemption, pro rata, by lot or by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to $1,000 or any integral
multiple thereof) of the principal amount of Securities of a denomination larger
than $1,000.
The Trustee shall promptly notify the Issuer and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the date
fixed for redemption, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) state:
(1) the date fixed for redemption,
(2) the method by which the Redemption Price will be determined,
(3) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the
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principal amounts) of the particular Securities to be redeemed,
(4) that on the date fixed for redemption the Redemption Price will
become due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date; and
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed pursuant to
this Article Eleven shall be given by the Issuer or, at the Issuer's request, by
the Trustee in the name and at the expense of the Issuer, and such notice, when
given to the Holders, shall be irrevocable.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to 10:00 a.m. on any date fixed for redemption date, the
Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the redemption date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
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SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the date fixed for redemption, become due
and payable at the Redemption Price therein specified, and from and after such
date (unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Issuer at the Redemption Price, together with
accrued interest to the redemption date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the redemption date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any), and
(to the extent provided herein) any overdue interest, shall, until paid, bear
interest from the date fixed for redemption at the rate borne by the Security.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Issuer designated for that purpose
pursuant to Section 1002 (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities (each with a Guarantee of the Guarantor executed by
the Guarantor and endorsed thereon), of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance.
-----------------------------------------------------------
The Issuer may at its option by Board Resolutions of the
Issuer and the Guarantor, at any time, elect to have either Section 1202 or
Section 1203 applied to all the Outstanding Securities (in whole and not in
part) upon compliance with the conditions set forth below in this Article
Twelve.
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<PAGE>
SECTION 1202. Defeasance and Discharge.
--------------------------
Upon the Issuer's exercise of its option to have this Section
applied to the Outstanding Securities, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 1204 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that (i) the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuer shall execute
proper instruments acknowledging the same) and (ii) the Guarantor shall be
released from all of its obligations under its Guarantee and under Article
Thirteen of this Indenture, subject, in each case (i) or (ii), to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund
described in Section 1204 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such
Securities when payments are due, (2) the Issuer's and, if applicable, the
Guarantor's obligations with respect to such Securities under Sections 304, 305,
306, 307, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Issuer may exercise its option to have this Section applied to any
Outstanding Securities notwithstanding the prior exercise of its option to have
Section 1203 applied to such Securities.
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<PAGE>
SECTION 1203. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option to have this Section
applied to the Outstanding Securities (1) the Issuer and the Guarantor, as
applicable, shall be released from their respective obligations under Sections
801(3) and Sections 1005 through 1010, inclusive (and any covenant provided
pursuant to Section 901(2)), and (2) the occurrence of any event specified in
Section 501(3) (with respect to any of Section 801(3), and Sections 1005 though
1010, inclusive (or to any covenant provided pursuant to Section 901(2)), or
Section 501(4) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1204 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Issuer and the
Guarantor, as applicable, may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in (or provided pursuant
to) any such specified Section (to the extent so specified in the case of
Section 501(3)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Issuer or the Guarantor shall irrevocably
have deposited or caused to be deposited with the Trustee (or another
trustee which satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article applicable to
it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (A) money in an
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amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each
case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of (and premium, if any) and interest on
such Securities on the respective Stated Maturities, in accordance with
the terms of this Indenture and such Securities.
(2) In the event of an election to have Section 1202
apply to the Outstanding Securities, the Issuer or the Guarantor shall
have delivered to the Trustee an Opinion of Counsel stating that (A)
the Issuer or the Guarantor, as the case may be, has received from, or
there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance
and discharge were not to occur.
(3) In the event of an election to have Section 1203
apply to the Outstanding Securities, the Issuer or the Guarantor shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner
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and at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Issuer or the Guarantor shall have delivered
to the Trustee an Officer's Certificate to the effect that such
Securities, if then listed on any securities exchange, will not be
delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to such
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(5)
and (6), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in default within
the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Issuer is a party or by
which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act
unless such trust shall be registered under such Act or exempt from
registration thereunder.
(9) Each of the Issuer and the Guarantor shall have
delivered to the Trustee an Officer's Certificate, and the Issuer or
the Guarantor shall have delivered to the Trustee an Opinion of
Counsel, each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied with.
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SECTION 1205. Deposited Money and U.S. Government Obligations to be Held
-----------------------------------------------------------------
in Trust; Miscellaneous Provisions.
------------------------------------
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section 1205 and Section 1206, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1204 in respect
of the Outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer or
the Guarantor acting as its own Paying Agent) as the Trustee may determine, to
the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Issuer and the Guarantor, jointly and severally, shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
1204 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the Outstanding Securities. The preceding sentence shall survive the termination
of this Indenture, and the earlier removal or resignation of the Trustee.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
and be relieved of all liability with respect to any money or U.S. Government
Obligations held by it as provided in Section 1204 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
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<PAGE>
SECTION 1206. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1202 or 1203 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's and the Guarantor's obligations
under this Indenture, the Securities and the Guarantee shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Twelve
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1202 or 1203; provided, however, that if the
-------- -------
Issuer makes any payment of principal of (or premium, if any) or interest on any
Security following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or the Paying Agent.
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<PAGE>
ARTICLE THIRTEEN
Guarantee
SECTION 1301. Guarantee.
---------
The Guarantor hereby unconditionally and irrevocably
guarantees (the "Guarantee") to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, all
obligations of the Issuer under such Security and under this Indenture with
respect to such Security, including the due and punctual payment of the
principal of (and premium, if any) and interest on, such Security when and as
the same shall become due and payable, whether at Stated Maturity, by
declaration of acceleration, call for redemption, or otherwise, according to the
terms of such Security and this Indenture. In the case of a failure of the
Issuer punctually to make any such payment when and as the same shall become due
and payable (or to perform any of the other obligations hereunder when and as
provided herein), the Guarantor hereby agrees to cause such payment to be made
at such time as if such payment were made by the Issuer and according to the
terms of such Security and this Indenture (and to cause any such other
obligations of the Issuer to be performed when and as provided herein).
The Guarantor hereby agrees that its obligation hereunder and
under the Securities shall be as if it were principal obligor and not merely
surety, and shall be unconditional, irrespective of the validity, regularity or
enforceability of such Securities or this Indenture or the absence of any action
to enforce the same; any creation, exchange, release or non-perfection of any
lien on any collateral for all or of any of the Securities; any election by the
Trustee or any of the Holders in any proceeding, any borrowing or grant of a
security interest by the Issuer or the disallowance of all or any portion of the
claims of the Trustee or any of the Holders for payment of any of the Securities
under, or the application of any provision of, any applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws of
general applicability relating to or affecting creditors' rights; or any waiver
or consent by the Holder of such Security or by the Trustee or either of them
with respect to any provisions thereof or of this Indenture, the obtaining of
any judgment against the Issuer or any action to enforce the same or any other
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<PAGE>
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
The Guarantor hereby waives the benefits of diligence,
presentment or demand of payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
lien on any property subject thereto or exhaust any right or take any action
against the Issuer or any other Person or any collateral, any filing of claims
with a court in the event of any insolvency, bankruptcy or similar event
relating to the Issuer, any right to require a proceeding first against the
Issuer, protest or notice with respect to such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that the Guarantee
will not be discharged except by complete performance of the obligations
contained in such Security and in the Guarantee. The Guarantor hereby agrees
that, in the event of a default in payment of principal of or premium or
interest on such Security, whether at Stated Maturity, by acceleration, call for
redemption or otherwise, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Security, subject to the terms and
conditions set forth in this Indenture, directly against the Guarantor to
enforce the Guarantee without first proceeding against the Issuer. The Guarantor
agrees that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Securities,
to collect interest on the Securities or to enforce or exercise any other right
or remedy with respect to the Securities, the Guarantor shall pay to the Trustee
for the account of the Holders, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
The Guarantor hereby irrevocably waives (i) any right to which
it may be entitled in connection with any obligation of any Holder or the
Trustee to sue the Issuer prior to a claim being made against the Guarantor
hereunder and (ii) any right to which it may be entitled to have the assets of
the Issuer first be used as payment of the Issuer's or the Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by the
Guarantor hereunder.
-100-
<PAGE>
The Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
The Guarantor hereby agrees to cause the Issuer (a) to comply
with all of the terms of and (b) to perform all of the Issuer's obligations
under the Securities and this Indenture.
No provision of the Guarantee, any Security or this Indenture
shall alter or impair the Guarantee of the Guarantor, which is absolute and
unconditional, of the due and punctual payment of the principal of (and premium,
if any) and interest on each Security upon which such Guarantee is endorsed.
SECTION 1302. Execution and Delivery of Guarantee.
-----------------------------------
The Guarantee to be endorsed on the Securities shall include
the terms of the Guarantee set forth in Section 1301 and any other terms that
may be set forth in the form established pursuant to Section 205. The Guarantor
hereby agrees to execute its Guarantee, in a form established pursuant to
Section 205, to be endorsed on each Security authenticated and delivered by the
Trustee.
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<PAGE>
The Guarantee shall be executed on behalf of the Guarantor by
any two of its Chairman of the Board, Vice Chairman of the Board, Chief
Executive Officer, Chief Financial Officer, President or Vice Presidents. The
sig nature of any or all of these officers on the Guarantee may be manual or
facsimile.
A Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantor shall bind
the Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of the Security on
which such Guarantee is endorsed or did not hold such offices at the date of
such Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that
its Guarantee set forth in Section 1301 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.
SECTION 1303. Subrogation.
-----------
The Guarantor shall be subrogated to all rights of the Holders
of the Securities upon which the Guarantee is endorsed against the Issuer in
respect of any amounts paid by the Guarantor on account of such Security
pursuant to the provisions of the Guarantee or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) , interest on all Securities issued under
this Indenture shall have been paid in full.
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<PAGE>
SECTION 1304. Payment of Expenses.
-------------------
The Guarantor shall pay to each Holder of a Security upon
which the Guarantee is endorsed on demand all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel) incurred by such Holder that
in any way relate to the enforcement of the rights of such Holder under the
Guarantee; provided that the Guarantor shall not be liable for any such expenses
if (i) no payment under the Guarantee is due or (ii) the Guarantor shall not
have received such documentation of such expenses as it may reasonably require.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
LEXMARK INTERNATIONAL, INC.,
As Issuer
By /s/ Gary E. Morin
---------------------------------
Name: Gary E. Morin
Title: Chief Financial Officer
Attest:
/s/ Richard H. Booth
- --------------------------
LEXMARK INTERNATIONAL GROUP, INC.
As Guarantor
By /s/ Gary E. Morin
--------------------------------
Name: Gary E. Morin
Title: Chief Financial Officer
Attest:
/s/ Richard H. Booth
- ---------------------------
THE BANK OF NEW YORK
As Trustee
By /s/ Robert A. Massimillo
--------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
Attest:
/s/ signature
- ---------------------------
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<PAGE>
COMMONWEALTH OF ) ss.:
------------
COUNTY OF )
------------------
On the day of , 1998, before me personally came
----- ---------
, to me known, who, being by me duly sworn, did
- ---------------------------
depose and say that [he -- she] is
of Lexmark International,
- ----------------------------------------------------
Inc., one of the corporations described in and which executed the foregoing
instrument; and that [he -- she] signed [his -- her] name thereto by the
authority of the Board of Directors of said corporation.
------------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the day of , 1998, before me personally came
----- ---------
, to me known, who, being by me duly sworn, did
- ---------------------------
depose and say that [he -- she] is
of Lexmark International,
- ----------------------------------------------------
Inc., one of the corporations described in and which executed the foregoing
instrument; and that [he -- she] signed [his -- her] name thereto by the
authority of the Board of Directors of said corporation.
------------------------------
-105-
As Approved by the Board of
Directors on July 30, 1998
LEXMARK INTERNATIONAL GROUP, INC.
NONEMPLOYEE DIRECTOR STOCK PLAN
(Amended and Restated Effective April 30, 1998)
Section 1. Purposes
--------------------
The purposes of the Plan are to enable the Company to attract,
retain and motivate the best qualified directors and to enhance a long-term
mutuality of interest between the directors and stockholders of the Company by
granting eligible directors an equity interest in the Company.
Section 2. Definitions
Unless the context requires otherwise, the following words as
used in the Plan shall have the meanings ascribed to each below, it being
understood that masculine, feminine and neuter pronouns are used
interchangeably, and that each comprehends the others.
(a) "Act" shall mean the Securities Exchange Act of 1934, as amended.
(b) "Adjustment Event" shall mean any stock dividend, stock split or
share combination of, or extraordinary cash dividend on, the Common Stock or
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Stock at a price substantially below Fair Market Value, or other similar event
affecting the Common Stock of the Company.
(c) "Annual Fees" shall mean the amounts payable by the Company to an
Eligible Director for services to be rendered as a member of the Board during
any calendar year,including retainers, meeting and attendance fees (including
any per diem attendance fee for international directors), committee chair
fees and fees otherwise payable for acting on or as a member of the Board or
any committee thereof, but not including reimbursement of expenses.
(d) "Award" shall mean any Option or Deferred Stock Unit awarded under
the Plan.
(e) "Board" shall mean the Board of Directors of the Company.
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(f) "Change in Control" shall mean the occurrence of any of the
following events:
(i) a majority of the members of the Board at any time cease
for any reason other than due to death or disability to be persons who
were members of the Board twenty-four months prior to such time (the
"Incumbent Directors"); provided that any director whose election, or
nomination for election by the Company's stockholders, was approved by
a vote of at least a majority of the members of the Board then still in
office who are Incumbent Directors shall be treated as an Incumbent
Director; or
(ii) any "person," including a "group" (as such terms are used
in Sections 13(d) and 14(d)(2) of the Act, but excluding the Company,
its Subsidiaries, any employee benefit plan of the Company or any
Subsidiary, employees of the Company or any Subsidiary or any group of
which any of the foregoing is a member) is or becomes the "beneficial
owner" (as defined in Rule 13(d)(3) under the Act), directly or
indirectly, including without limitation, by means of a tender or
exchange offer, of securities of the Company representing 30% or more
of the combined voting power of the Company's then outstanding
securities; or
(iii) the stockholders of the Company shall approve a
definitive agreement (x) for the merger or other business combination
of the Company with or into another corporation immediately following
which merger or combination (A) the stock of the surviving entity is
not readily tradable on an established securities market, (B) a
majority of the directors of the surviving entity are persons who (1)
were not directors of the Company immediately prior to the merger and
(2) are not nominees or representatives of the Company or (C) any
"person," including a "group" (as such terms are used in Sections 13(d)
and 14(d)(2) of the Act, but excluding the Company, its Subsidiaries,
any employee benefit plan of the Company or any Subsidiary, employees
of the Company or any Subsidiary or any group of which any of the
foregoing is a member) is or becomes the "beneficial owner" (as defined
in Rule 13(d)(3) under the Act), directly or indirectly, of 30% or more
of the securities of the surviving entity or (y) for the direct or
indirect sale or other disposition of all or substantially all of the
assets of the Company.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to
occur in the event the Company files for bankruptcy, liquidation or
reorganization under the United States Bankruptcy Code.
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(h) "Common Stock" shall mean the Class A common stock of the Company,
par value $0.01 per share. (i) "Company" shall mean Lexmark
International Group, Inc., a Delaware corporation, and any
successor thereto.
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(j) "Deferred Stock Unit" shall mean an Eligible Director's right to
receive pursuant to the Plan one Share at the end of a specified period of time.
(k) "Eligible Director" shall mean a director of the Company who is
not, at the relevant time, an officer or employee of the Company or any of its
Subsidiaries or affiliated with any stockholder of the Company holding 5% or
more of the Company's equity securities.
(l) "Equity Fee Election" shall mean an Eligible Director's election to
receive all or a portion of his Annual Fees in the form of Deferred Stock Units
in lieu of cash that shall be irrevocable for the calendar year to which it
applies.
(m) "Fair Market Value" shall mean, as of any date of determination,
the closing price of a share of Common Stock on a national securities exchange
on that date, as reported for such date in the Wall Street Journal, or the last
bid price for a share of Common Stock on such date, as reported on a nationally
recognized system of price quotation. In the event that there are no Common
Stock transactions reported on such exchange or system on such date, Fair Market
Value shall mean the closing price or the last bid price, whichever is
applicable, on the immediately preceding day on which Common Stock transactions
were so reported.
(n) "Grant Date" shall mean, with respect to the grant of Deferred
Stock Units under the Plan, each date on which Annual Fees become payable to
members of the Board.
(o) "Option" shall mean the right to purchase Shares at a stated price
for a specified period of time. Options under the Plan are nonstatutory stock
options not intended to qualify under section 422 of the Code.
(p) "Option Award" shall mean an Initial Award, Annual Award and/or
Reload Option Award (as such terms are defined in Section 6) to purchase Shares,
at an exercise price per Share equal to the Fair Market Value of a Share on the
date of grant of such Award.
(q) "Plan" shall mean the Lexmark International Group, Inc. Nonemployee
Director Stock Plan, as set forth herein and as the same may be further amended
from time to time.
(r) "Share" shall mean a share of Common Stock.
(s) "Subsidiary" shall mean any entity that is directly or indirectly
controlled by the Company or any other entity in which the Company has a
significant equity interest, as determined by the Committee.
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(t) "Year of Board Service" shall mean any 12 consecutive month period
during which an Eligible Director serves as a member of the Board. In the event
an Eligible Director is reinstated as a member of the Board after he ceases to
serve as a member of the Board, a new Year of Board Service shall commence on
the date he recommences service as a member of the Board.
Section 3. Effective Date
-------------------------
The Plan shall be effective as of November 20, 1995, as the
same may be amended from time to time (the "Effective Date").
Section 4. Administration
-------------------------
(a) Powers of the Board.
------------------- The Plan shall be administered by the Board.
The Board may delegate its powers and functions hereunder to a duly appointed
committee of the Board. The Board shall have full authority to interpret the
Plan; to establish, amend and rescind rules for carrying out the Plan; to
administer the Plan; to incorporate in any option agreement such terms and
conditions, not inconsistent with the Plan, as it deems appropriate; to construe
the respective option agreements and the Plan; and to make all other
determinations and to take such steps in connection with the Plan as the Board,
in its discretion, deems necessary or desirable for administering the Plan.
(b) Delegation.
---------- The Board may appoint the Secretary of the Company,
other officers or employees of the Company or competent professional advisors to
assist the Board in the administration of the Plan, and may grant authority to
such persons to execute agreements or other documents on its behalf.
(c) Agents.
------ The Board may employ such legal counsel, consultants and
agents as it may deem desirable for the administration of the Plan, and may rely
upon any opinion received from any such counsel or consultant and any
computation received from any such consultant or agent. Expenses incurred by the
Board in the engagement of any such counsel, consultant or agent shall be paid
by the Company.
(d) Indemnification.
--------------- Each person who is or shall have been a member of
the Board or any committee thereof or any person designated pursuant to Section
4(c) above shall be indemnified and held harmless by the Company against and
from any loss, cost, liability or expense that may be imposed upon or reasonably
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incurred by him in connection with or resulting from any claim, action, suit or
proceeding to which he may be made a party or in which he may be involved by
reason of any action taken or failure to act under the Plan and against and from
any and all amounts paid by him in settlement thereof, with the Company's
approval, or paid by him in satisfaction of any judgment in any such action,
suit or proceeding against him, provided he shall give the Company an
opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive and shall be independent of any other
rights of indemnification to which such persons may be entitled under the
Company's Articles of Incorporation or By-laws, by contract, as a matter of law
or otherwise.
Section 5. Shares; Adjustment Upon Certain Events
-------------------------------------------------
(a) Shares Available.
----------------- Subject to the provisions of Section 5(d), the
number of shares of Common Stock subject to Awards under the Plan may not exceed
147,000, plus any shares that become available for grant pursuant to Section
5(b). The shares to be delivered under the Plan may consist, in whole or in
part, of Common Stock held in treasury or authorized but unissued Common Stock,
not reserved for any other purpose, or from Common Stock reacquired by the
Company.
(b) Canceled, Terminated or Forfeited Awards.
------------------------------------------- Any shares of Common
Stock subject to any portion of an Award which, in any such case and for any
reason, expires, or is canceled, terminated or otherwise settled, without the
issuance of such shares of Common Stock shall again be available for award under
the Plan. Shares of Common Stock that are delivered to the Company, either
actually or by attestation, in payment of the exercise price for any Option
granted under the Plan will also be available for future grants under the Plan.
(c) No Limit on Corporate Action.
---------------------------- The existence of this Plan and Shares
granted hereunder shall not affect in any way the right or power of the Board or
the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any
issuance of bonds, debentures, preferred or prior preference stocks ahead of or
affecting Common Stock, the dissolution or liquidation of the Company or any
sale or transfer of all or part of its assets or business, or any other
corporate act or proceeding.
(d) Adjustments Upon Certain Events.
------------------------------- The aggregate number of shares of
Common Stock available for Awards under Section 5(a) or subject to outstanding
Awards and the respective prices and/or vesting and exercisability criteria
applicable to outstanding Awards shall be proportionately adjusted to reflect,
as deemed equitable and appropriate by the Board, an Adjustment Event. To the
extent deemed equitable and appropriate by the Board, subject to any required
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action by stockholders, in any merger, consolidation, reorganization,
liquidation, dissolution or other similar transaction, other than any such
transaction that constitutes a Change in Control, any Award granted under the
Plan shall pertain to the securities and other property to which a holder of the
number of shares of Common Stock covered by the Award would have been entitled
to receive in connection with such event.
Any shares of stock (whether Common Stock, shares of stock into which
shares of Common Stock are converted or for which shares of Common Stock are
exchanged or shares of stock distributed with respect to Common Stock) or cash
or other property received with respect to any Award granted under the Plan as a
result of any Adjustment Event, any distribution of property or any merger,
consolidation, reorganization, liquidation, dissolution or other similar
transaction shall be subject to the same terms and conditions, including vesting
and restrictions on exercisability or transfer, as are applicable to the Award
with respect to which such shares, cash or other property is received and any
agreement with respect to the Award shall so provide.
Section 6. Option Awards
------------------------
(a) (i) Initial Awards.
--------------- During the term of the Plan, each Eligible
Director shall receive an Option Award to purchase 10,000 Shares (unless another
number is determined by the Board at the time of such grant) (the "Initial
Award") on the date of the meeting of the Board or the annual meeting of the
shareholders of the Company, whichever is applicable, at which such Eligible
Director is first elected to serve as a member of the Board.
(ii) Annual Awards.
-------------- Each Eligible Director may, at the
discretion of the Board, also be granted one or more Option Awards after the
Initial Award (each an "Annual Award"), at such time or times and in such amount
as shall be determined by the Board.
(b) Reload Option Awards.
--------------------- Effective upon the exercise by an Eligible
Director of an Option and the payment of any portion of the exercise price in
respect thereof by delivery to the Company of Shares, such Eligible Director
shall automatically be granted a Reload Option Award for a number of Shares
equal to the number of Shares so delivered. Such Reload Option Award shall be
subject to the same terms and conditions (including the same expiration date) as
the related Option except (i) that the exercise price shall be equal to the Fair
Market Value of a Share on the date such Reload Option is granted and (ii) such
Reload Option shall be vested and exercisable in full as of its Grant Date.
(c) Option Term.
----------- Subject to the provisions of Section 8, each Option
not previously exercised shall expire on the tenth anniversary of the date of
the grant thereof or upon the earlier termination of the Eligible Director's
status as a director of the Company.
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(d) Exercisability.
-------------- Except as otherwise provided hereunder, each Option
Award granted under this Plan shall become exercisable on a cumulative basis in
five equal annual installments commencing on the first anniversary of the date
of grant, subject to the acceleration provisions of Section 9 hereof. Once
exercisable, an Option Award may be exercised from time to time, in whole or in
part, up to the total number of Shares with respect to which it is then
exercisable.
(e) Procedure for Exercise.
---------------------- An Eligible Director electing to exercise
one or more Options shall give written notice to the Secretary of the Company or
its designee of such election and of the number of Shares he has elected to
purchase. Shares purchased pursuant to the exercise of Options shall be paid for
at the time of exercise in cash or cash equivalents, or by delivery to the
Company of Shares having a Fair Market Value on the date of exercise equal to
the exercise price, or in a combination of cash and Shares. As soon as
practicable after receipt of a written exercise notice and payment of the
exercise price in accordance with this Section 6(e), the Company shall direct
its stock transfer agent to make (or to cause to be made) an appropriate book
entry reflecting the Eligible Director's ownership of the shares of Common Stock
so acquired. Upon the Eligible Director's request, the Company shall deliver to
the Eligible Director a certificate or certificates representing the acquired
Shares.
(f) Option Agreement.
----------------- Options shall be evidenced by a written option
agreement embodying the terms of this Section 6.
Section 7. Deferred Stock Unit Awards
-------------------------------------
(a) Equity Fee Election.
------------------- An Eligible Director shall have the right to
make an Equity Fee Election no later than December 31 of each calendar year with
respect to Annual Fees to be earned for services rendered in one or more
succeeding calendar years. Notwithstanding the foregoing, (i) a person may make,
prior to the first date as of which such person becomes an Eligible Director and
is eligible to participate in the Plan, an Equity Fee Election to be effective
under the Plan with respect to Annual Fees to be earned for services rendered
any time after such Election or (ii) an Eligible Director may make an Equity Fee
Election at any time during the 30 day period following the first date as of
which such Eligible Director is eligible to participate in the Plan with respect
to Annual Fees to be earned for services rendered after such 30 day period. All
Equity Fee Elections must set forth a percentage, up to 100%, of the Annual Fees
payable to the Eligible Director that will be paid in the form of Deferred Stock
Units in lieu of cash. In the event the Annual Fees of an Eligible Director are
increased subsequent to the making of an Equity Fee Election, such election
shall apply to the percentage of such Annual Fees elected by the Eligible
Director, as so increased.
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(b) Deferred Stock Units.
-------------------- Effective on each Grant Date of Annual Fees,
each Eligible Director who has made an Equity Fee Election shall receive an
award of Deferred Stock Units. No Shares shall be issued at the time an award of
Deferred Stock Units is made and the Company shall not be required to set aside
a fund for the payment of such award. Upon the effective date of the initial
Deferred Stock Unit award granted to an Eligible Director, the Company will
establish a separate account for such Eligible Director and will record in such
account the number of Deferred Stock Units awarded to such Eligible Director
from time to time under the Plan. The number of Deferred Stock Units awarded to
an Eligible Director on each Grant Date shall be equal to the number of shares
(including fractional shares) obtained by dividing (i) the amount of the Annual
Fees deferred by such Eligible Director pursuant to the Equity Fee Election of
such Eligible Director then in effect with respect to the applicable period
since the most recent Grant Date, by (ii) the Fair Market Value of one Share on
such Grant Date. To the extent that any portion of an Eligible Director's Annual
Fees are paid on an annual basis, a pro rata share of the annual amount thereof
shall be taken into account on each scheduled Board meeting date (or such other
dates as the Company shall pay such Annual Fees (i.e., a Grant Date)) for
purposes of determining the number of Deferred Stock Units awarded to such
Eligible Director on such Grant Date.
(c) Dividends.
--------- The Company will credit to the account of each recipient
of a Deferred Stock Unit award an amount equal to any dividends paid by the
Company during the period of deferral with respect to the corresponding number
of Shares credited to such Eligible Director's Deferred Stock Unit account
("Dividend Equivalents"). Any Dividend Equivalents with respect to cash
dividends on the Common Stock credited to an Eligible Director's account shall
be deemed to have been invested in shares of Common Stock on the record date
established for the related dividend and, accordingly, a number of Deferred
Stock Units shall be credited to such Eligible Director's account equal to the
greatest whole number which may be obtained by dividing (x) the value of such
Dividend Equivalent on the record date, by (y) the Fair Market Value of a Share
on such date.
(d) Vesting of Deferred Stock Units.
-------------------------------- Deferred Stock Units, together
with any Dividend Equivalents credited with respect thereto, shall be fully
vested at all times.
(e) Settlement of Deferred Stock Units.
---------------------------------- On the fifth anniversary of the
date of grant of an Award of Deferred Stock Units, an Eligible Director will be
entitled to receive one Share for each Deferred Stock Unit (and related Dividend
Equivalents) subject to such Award. Notwithstanding the foregoing, an Eligible
Director may elect to further defer receipt of the Shares issuable with respect
to such Deferred Stock Units pursuant to such election procedures as may be
specified by the Board.
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Section 8. Termination of Director Status
-----------------------------------------
In the event an Eligible Director ceases to serve as a member
of the Board for any reason,
(i) if such Eligible Director has completed three (3) Years of
Board Service or less as of the date of such termination, any Option
granted to such Eligible Director (x) which is then outstanding and
exercisable on the date of termination may be exercised by the Eligible
Director or, if applicable, his beneficiary for a period of 90 days
following the date of the Eligible Director's termination of service,
but in no event later than the expiration date of the term of the
Option, and (y) which is not exercisable on the date of termination
shall be canceled, in full, on the date of such termination; or
(ii) if such Eligible Director has completed more than three
(3) Years of Board Service as of the date of such termination, any
Option granted to such Eligible Director (x) which is then outstanding
and exercisable on the date of termination may be exercised by the
Eligible Director or, if applicable, his beneficiary until the third
anniversary of the date of the Eligible Director's termination of
service, but in no event later than the expiration date of the term of
the Option, and (y) which is then outstanding and not exercisable on
the date of termination shall thereafter become exercisable by the
Eligible Director or, if applicable, his beneficiary at the time or
times indicated in Section 6(d) and, once exercisable, will remain
exercisable for a period of three years following the date of the
Eligible Director's termination of service, but in no event later than
the expiration date of the term of the Option.
Section 9. Change in Control
----------------------------
In the event of a Change in Control, (i) each Option shall
become fully vested and exercisable and (ii) any outstanding Deferred Stock Unit
Awards shall become immediately payable in full.
Section 10. Limited Transferability of Awards
---------------------------------------------
Unless the Board, the Committee or the Company's Vice
President of Human Resources and Vice President and General Counsel shall permit
an Award to be transferred by an Eligible Director to such Director's family
member for estate planning purposes or to a trust, partnership, corporation or
other entity established by the Eligible Director for estate planning purposes,
no Award granted under the Plan shall be transferable by the Eligible Director
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other than by will or under the applicable laws of descent and distribution. In
addition, no Award shall be assigned, negotiated, pledged or hypothecated in any
way (whether by operation of law or otherwise) and no Award shall be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
negotiate, pledge or hypothecate any Award, or in the event of any levy upon any
Award by reason of any attachment or similar process, in either case contrary to
the provisions hereof, such Award shall immediately become null and void. All
rights with respect to any Award granted to an Eligible Director under the Plan
shall be exercisable by the transferee only for so long as they could have been
exercisable by the Eligible Director. If any Award is transferred to a family
member, trust, partnership, corporation or other entity as contemplated by the
first sentence hereof, all references herein and in the applicable Option
Agreement to the Eligible Director shall be deemed to refer to such permitted
transferee, other than any such references with respect to the personal status
of the Eligible Director.
Section 11. Rights as a Stockholder
-----------------------------------
An Eligible Director shall not have any right in respect of
Deferred Stock Units or Options awarded pursuant to the Plan to vote on any
matter submitted to the Company's stockholders until such time as the Shares
attributable to such Deferred Stock Units or Options, as applicable, have been
issued to such Eligible Director or his beneficiary. No adjustment shall be made
for dividends or other rights issued with respect to the Common Stock for which
the record date is prior to the recording of the Eligible Director's ownership
of the Shares attributable to the Award.
Section 12. Determinations
--------------------------
Each determination, interpretation or other action made or
taken pursuant to the provisions of this Plan by the Board shall be final and
binding for all purposes and upon all persons, including, without limitation,
the Company, the directors, officers and other employees of the Company, the
Eligible Director and their respective heirs, executors, administrators,
personal representatives and other successors in interest.
Section 13. Termination, Amendment and Modification
---------------------------------------------------
(a) Termination and Amendment.
--------------------------- This Plan shall expire on the tenth
anniversary of the Effective Date (except as to Awards outstanding on that
date), unless sooner terminated pursuant to paragraph (b) below or by action of
the stockholders of the Company, and no Awards shall be granted under this Plan
thereafter. The Board at any time or from time to time may amend the Plan to
effect (i) amendments necessary or desirable for the Plan and Awards to conform
to all applicable laws and regulations and (ii) any other amendments deemed
appropriate. Notwithstanding the foregoing, the Board may not effect any
amendment that would require the approval of the stockholders of the Company
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under Rule 16b-3 or any other requirement of applicable law or regulation unless
such approval is obtained.
(b) No Effect on Existing Rights.
---------------------------- Except as otherwise required by law,
no termination, amendment or modification of this Plan may, without the consent
of an Eligible Director of an Award, alter or impair the rights and obligations
of such Eligible Director under any then outstanding Award.
Section 14. Non-Exclusivity
---------------------------
Neither the adoption of this Plan by the Board nor the
submission of this Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board to adopt such
other compensatory arrangements as it may deem desirable, including, without
limitation, payments of cash amounts related to the tax liabilities arising
directly or indirectly from the issuance of Shares in respect of an Eligible
Director hereunder.
Section 15. General Provisions
------------------------------
(a) No Right to Serve as a Director.
-------------------------------- This Plan shall not impose any
obligations on the Company to retain any Eligible Director as a director nor
shall it impose any obligation on the part of any Eligible Director to remain as
a director of the Company, provided that each Eligible Director by accepting
each Award shall represent to the Company that it is his good faith intention to
continue to serve as a director of the Company until the next annual meeting of
stockholders and that he agrees to do so unless a change in circumstances
arises.
(b) No Right to Particular Assets.
------------------------------ Nothing contained in this Plan and
no action taken pursuant to this Plan shall create or be construed to create a
trust of any kind or any fiduciary relationship between the Company and any
Eligible Director, the executor, administrator or other personal representative
or designated beneficiary of such Eligible Director, or any other persons. Any
reserves that may be established by the Company in connection with this Plan
shall continue to be held as part of the general funds of the Company, and no
individual or entity other than the Company shall have any interest in such
funds until paid to an Eligible Director or his beneficiary. To the extent that
any Eligible Director or his executor, administrator or other personal
representative, as the case may be, acquires a right to receive any payment from
the Company pursuant to this Plan, such right shall be no greater than the right
of an unsecured general creditor of the Company.
(c) Beneficiary Designation.
----------------------- Each Eligible Director under the Plan may
from time to time name any beneficiary or beneficiaries (who may be named
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contingently or successively) to whom any benefit under the Plan is to be paid
or by whom any right under the Plan is to be exercised in case of his death.
Each designation will revoke all prior designations by the same Eligible
Director, shall be in a form prescribed by the Company, and will be effective
only when filed by the Eligible Director in writing with the Company during his
lifetime. In the absence of any such designation, benefits remaining unpaid or
Awards outstanding at the Eligible Director's death shall be paid to or
exercised by the Eligible Director's surviving spouse, if any, or otherwise to
or by his estate.
(d) Listing of Shares and Related Matters.
--------------------------------------- If at any time the Board
shall determine in its discretion that the listing, registration or
qualification of the Shares covered by this Plan upon any national securities
exchange or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the delivery of Shares under this Plan, no Shares will be
delivered unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained, or otherwise provided for, free
of any conditions not acceptable to the Board.
(e) Notices.
------- Each Eligible Director shall be responsible for furnishing
the Board with the current and proper address for the mailing of notices and
delivery of agreements and Shares. Any notices required or permitted to be given
shall be deemed given if directed to the person to whom addressed at such
address and mailed by regular United States mail, first-class and prepaid, or by
any recognized international equivalent. If any item mailed to such address is
returned as undeliverable to the addressee, mailing will be suspended until the
Eligible Director furnishes the proper address.
(f) Severability of Provisions.
-------------------------- If any provision of this Plan shall be
held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be construed and
enforced as if such provision had not been included.
(g) Incapacity.
---------- Any benefit payable to or for the benefit of a minor,
an incompetent person or other person incapable of receiving such benefit shall
be deemed paid when paid to such person's guardian or to the party providing or
reasonably appearing to provide for the care of such person, and such payment
shall fully discharge the Board, the Company and other parties with respect
thereto.
(h) Headings and Captions.
----------------------- The headings and captions herein are
provided for reference and convenience only, shall not be considered part of
this Plan and shall not be employed in the construction of this Plan.
(i) Governing Law.
------------- This Plan shall be construed and enforced according
to the laws of the State of Delaware, without regard to principles of conflicts
of laws.
NON-QUALIFIED STOCK OPTION AGREEMENT
pursuant to
LEXMARK INTERNATIONAL GROUP, INC.
STOCK INCENTIVE PLAN
This NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement")
between Lexmark International Group, Inc., a Delaware corporation (the
"Company"), and the person specified on the signature page hereof (the
"Optionee") is entered into as of this 12th day of February, 1998 pursuant to
the Lexmark International Group, Inc. Stock Incentive Plan, as the same may be
amended from time to time (the "Plan").
WHEREAS, the Optionee is regarded as a key employee of the
Company or one of the Subsidiaries and the Committee has determined that it
would be to the advantage and in the interest of the Company to grant the option
provided for herein to the Optionee as an inducement to the Optionee to remain
in the service of the Company and the Subsidiaries over the long-term and as an
incentive to the Optionee to devote his best efforts and dedication to the
performance of such services and to maximize shareholder value;
WHEREAS, the Optionee desires to accept from the Company the
grant of the options evidenced hereby on the terms and subject to the conditions
herein;
NOW, THEREFORE, in consideration of the premises and subject
to the terms and conditions set forth herein and in the Plan, the parties hereto
hereby covenant and agree as follows:
1. Grant of Option; Exercise Price.
-------------------------------
(a) Grant of Option; Exercise Price.
-------------------------------- The Company hereby grants to
the Optionee, effective as of February 12, 1998 (the "Grant
Date") and on the terms and conditions herein, an option (the
"Option") to purchase the number of shares (the "Option
Shares") of Class A Common Stock, par value of $.01 per share
(the "Common Stock") set forth on the signature page hereof,
at an exercise price per Option Share equal to the fair market
value on the Grant Date, $40.6875, which was the closing price
of a share of Common Stock on the Grant Date as reported for
such day in The Wall Street Journal. The Option is not
intended to be an incentive stock option under the United
States Internal Revenue Code of 1986, as amended.
(b) Stock Incentive Plan.
---------------------- This Agreement is subject in all
respects to the terms of the Plan, all of which terms are made
a part of and incorporated in this Agreement by reference. In
the event of any conflict or inconsistency between the terms
of this Agreement and the terms of the Plan, the terms of the
Plan shall control. The Optionee hereby acknowledges that a
copy of the Plan may be obtained from the Vice President of
Human Resources and agrees to comply with and be bound by all
of the terms and conditions thereof. Terms used in this
<PAGE>
Agreement with initial capital letters, but not defined
herein, shall have the meanings assigned to them under the
Plan.
2. Vesting; Period of Exercise of Option
-------------------------------------
(a) Vesting.
------- Subject to the provisions of Section 4, the Option
shall become vested and exercisable in five equal installments
on each of the first five anniversaries of the Grant Date,
subject in the case of each such installment to the continuous
employment of the Optionee with the Company or a Subsidiary
from the date hereof to the applicable anniversary of the
Grant Date.
(b)Termination of Employment.
------------------------- If the Optionee's employment with
the Company and the Subsidiaries terminates for any reason,
other than a termination by the Company or a Subsidiary for
Cause (as defined below), any portion of the Option which is
not then exercisable shall immediately terminate and be
canceled effective upon such termination of employment and the
remaining portion of the Option, if any, shall thereafter
remain exercisable for the period provided in Section 4. In
the event of the termination of the Optionee's employment by
the Company or a Subsidiary for Cause, the Option shall
immediately terminate and be canceled in full effective upon
the date of such termination of employment.
In accepting this Option, the Optionee acknowledges that the
Option has been granted as an incentive to the Optionee to
remain employed by the Company and to exert his or her best
efforts to enhance the value of the Company over the
long-term. Accordingly, the Optionee agrees that if he or she
(a) within 12 months following termination of employment with
the Company accepts employment with a competitor of the
Company or otherwise engages in competition with the Company,
or (b) within 36 months following termination of employment
with the Company acts against the interests of the Company,
including employing or recruiting any employee of the Company
without the Company's written consent, or (c) discloses or
otherwise misuses confidential Company information or
material, each of these constituting a harmful action, then
(i) any unexercised portion of this Option shall be canceled
immediately (unless canceled earlier by operation of another
term of this Agreement) and (ii) the Optionee shall pay to the
Company an amount equal to the Option gains (represented by
the closing market price on the date of exercise over the
exercise price, multiplied by the number of options exercised,
without regard to any subsequent market price decrease or
increase) realized by Employee from the exercise of all or a
portion of this Option within 18 months preceding and
following the commitment of any such harmful action and
through such period as it takes the Company to discover such
harmful action. The Committee shall have the right, in its
sole discretion, not to enforce the provisions of this
paragraph with respect to the Optionee.
(c) Acceleration.
------------ The Committee may, in its discretion, accelerate
the date or dates as of which all or any portion of the Option
shall become vested and exercisable and may establish
accelerated times for vesting based upon the attainment of
2
<PAGE>
performance goals or such other factors as the Committee may
from time to time determine.
(d) Term of Option Exercise Period.
------------------------------ Except to the extent that the
Option or any portion thereof shall sooner terminate in
accordance with Section 2 or 4 hereof, once any portion of the
Option has become vested and exercisable, such portion shall
remain exercisable until the end of the day preceding the
tenth anniversary of the date hereof (the "Option Period").
3. Method of Exercise and Payment; Reload Option; Certain
-------------------------------------------------------
Restrictions on Resale.
----------------------
(a) Exercise and Payment.
-------------------- Once vested and exercisable, the Option,
or any vested portion thereof, may be exercised by the
Optionee (or his beneficiary or estate) by delivery to the
Company on any business day (the "Option Exercise Date")
written notice (the "Option Exercise Notice"), in such manner
and form as may be required by the Committee, specifying the
number of Option Shares the Optionee then desires to purchase
and the aggregate exercise price for such Option Shares (the
"Option Exercise Price"). The Option Exercise Notice shall be
accompanied by payment of the Option Exercise Price and any
other amounts required to be paid pursuant to Section 5.
The Optionee may pay the Option Exercise Price by delivering
to the Company cash, shares of Qualifying Common Stock (as
defined below) already owned by the Optionee or a combination
of cash and such shares of Qualifying Common Stock provided
that the aggregate Fair Market Value on the Option Exercise
Date of the shares of Qualifying Common Stock delivered in
payment of any portion of the Option Exercise Price shall be
equal to the excess of (x) the Option Exercise Price over (y)
the amount of any cash delivered by the Optionee in payment of
the Option Exercise Price. For purposes of this Agreement,
shares of Common Stock shall constitute Qualifying Common
Stock that may be delivered in payment of the Option Exercise
Price if such shares (i) are not subject to any outstanding
loan or other obligation and are not pledged as collateral
with respect to any loan or other obligation, other than any
such loan or other obligation extended to the Optionee by the
Company or any Subsidiary provided the Committee approves the
delivery of such shares to pay the Option Exercise Price, and
(ii) either (x) have been owned by the Optionee without
certain restrictions for a continuous period of at least six
months (or such greater or lesser period as the Committee
shall determine) or (y) were purchased by the Optionee on a
U.S. national securities exchange or under the Lexmark
Employee Share Purchase Program.
The Committee may also permit the Optionee to arrange for the
payment of all or any portion of the Option Exercise Price and
other amounts required to be paid pursuant to Section 5 by
directing a securities broker approved for such purpose by the
Committee to deliver to the Company, on behalf of the
Optionee, the proceeds of the sale on the Option Exercise Date
of a number of the Option Shares then being purchased by the
Optionee having aggregate sales proceeds on the Exercise Date
equal to the sum of all or the applicable portion of the
3
<PAGE>
Option Exercise Price and the amounts required to be paid
pursuant to Section 5 that the Optionee elects to satisfy by
using the proceeds of the sale of the Option Shares (the
"Cashless Exercise Procedure").
Within a reasonable period of time after the Option Exercise
Date, subject to payment of the Option Exercise Price and any
amounts required to be paid by the Optionee pursuant to
Section 5, the Company shall direct its stock transfer agent
to make (or to cause to be made) an appropriate book entry
reflecting the Optionee's ownership of the Option Shares then
being purchased by the Optionee. Upon request, the Company
shall deliver to the Optionee a certificate or certificates
for the number of Option Shares (reduced, if applicable, by
the number of Option Shares sold on the Option Exercise Date
pursuant to the Cashless Exercise Procedure) purchased by the
Optionee, registered in the name of the Optionee. In the event
that the Company or the Committee, in its sole discretion,
shall determine that, under applicable U.S. federal or state
or non-U.S. securities laws, the transfer of any Option Shares
must be subject to restriction, any certificates issued under
this Section 3(a) shall bear an appropriate legend restricting
the transfer of such Option Shares and appropriate stop
transfer instructions shall be delivered to the Company's
stock transfer agent.
(b) Reload Option.
-------------- Effective on the date of the exercise by the
Optionee of any portion of the Option (the "Reload Grant
Date"), if any portion of the Option Exercise Price in respect
thereof is satisfied by the Optionee by delivery to the
Company of Qualifying Common Stock, subject to the consent of
the Committee, the Optionee shall automatically be granted a
new option (the "Reload Option") to purchase a number of
shares of Common Stock equal to the number of shares of
Qualifying Common Stock so delivered, at an exercise price per
share equal to the Fair Market Value of a share of Common
Stock on the Reload Grant Date. The Reload Option shall be
fully vested upon grant and shall become exercisable on the
six month anniversary of the Reload Grant Date unless the
Optionee's employment with the Company and the Subsidiaries is
terminated due to the Optionee's death, Disability or
Retirement, then such Reload Option shall become immediately
exercisable and shall thereafter remain exercisable for the
applicable period provided in Section 4. In all other
respects, such Reload Option shall be subject to the same
terms and conditions (including the same Option Period) as the
Option and all references herein to the "Option" shall be
deemed to include the Reload Option.
(c) Restrictions on Sale upon Public Offering.
-------------------------------------------------------------
The Optionee hereby agrees that, during the 20 day period
prior to and the 180 days following the effective date of any
registration statement filed by the Company under the
Securities Act of 1933, as amended, with respect to any
underwritten public offering of any shares of the Company's
capital stock, the Optionee will not effect any public sale
or distribution of shares of Common Stock (other than as part
of such underwritten public offering).
4. Termination.
----------- The Option (or the indicated portion thereof) shall
terminate and be canceled immediately upon the first to occur of
any of the following events:
4
<PAGE>
(a) The date of the expiration of the Option Period.
(b) The date of the termination of the Optionee's employment with
the Company or a Subsidiary for Cause.
(c) The date of the termination of the Optionee's employment with
the Company and the Subsidiaries for any reason, other than
for Cause, with respect to any portion of the Option which has
not become vested and exercisable in accordance with Section 2
on or prior to such date of such termination.
(d) In the case of the Optionee's termination of employment with
the Company and the Subsidiaries for any reason other than for
Cause or by reason of the Optionee's Retirement, Disability or
death (as each such term is defined below), with respect to
any portion of the Option which has become vested and
exercisable in accordance with Section 2 on or prior to the
date of such termination of employment, the last day of the 90
day period immediately following the date of such termination
of employment.
(e) Subject to Section 4(h), in the case of the Optionee's
termination of employment with the Company and the
Subsidiaries by reason of the Optionee's Retirement, with
respect to any portion of the Option which has become vested
and exercisable in accordance with Section 2 on or prior to
the date of such termination of employment, the last day of
the 36 month period immediately following the date of such
termination of employment.
(f) Subject to Section 4(h), in the case of the Optionee's
termination of employment with the Company and the
Subsidiaries by reason of the Optionee's Disability, with
respect to any portion of the Option which has become vested
and exercisable in accordance with Section 2 on or prior to
the date of such termination of employment, the last day of
the 12 month period immediately following the date of such
termination of employment.
(g) In the case of the Optionee's termination of employment with
the Company and the Subsidiaries by reason of the Optionee's
death, with respect to the portion of the Option which has
become vested and exercisable in accordance with Section 2 on
or prior to the date of such termination of employment, the
last day of the 12 month period immediately following the date
of such termination of employment.
(h) The last day of the 12 month period immediately following the
date of the Optionee's death during any period during which
the Optionee was entitled to exercise any portion of the
Option pursuant to Section 4(e) or 4(f).
(i) For purposes of this Agreement, the following terms shall have
the following meanings:
"Cause" shall mean (A) the willful failure by the Optionee
to perform substantially his duties as an employee of the
5
<PAGE>
Company or any Subsidiary (other than due to physical or
mental illness) after reasonable notice to the Optionee of
such failure, (B) the Optionee's engaging in serious
misconduct that is injurious to the Company or any
Subsidiary, (C) the Optionee's having been convicted of,
or entered a plea of nolo contendere to, a crime that
---- ----------
constitutes a felony or (D) the breach by the Optionee of
any written covenant or agreement with the Company or any
Subsidiary not to disclose information pertaining to the
Company or any Subsidiary or not to compete or interfere
with the Company or any Subsidiary.
"Disability" shall mean a physical or mental disability or
infirmity of the Optionee as defined in any disability
plan sponsored by the Company or any Subsidiary which
employs the Optionee or, if no such plan is sponsored by
the Optionee's employer, the Lexmark Long-Term Disability
Plan.
"Retirement" shall mean the Optionee's retirement (x) at
or after age 65 or (y) at or after any earlier retirement
age agreed to, in writing, by the Company after the date
hereof and prior to the Optionee's termination of
employment with the Company or any Subsidiary (other than
any such termination with the Company or a Subsidiary in
connection with a contemporaneous reemployment by another
Subsidiary or the Company).
5. Tax Withholding.
--------------- The delivery of any directions to the Company's
stock transfer agent or any certificates for shares of Common
Stock pursuant to Section 3 shall not be made until the Optionee,
or, if applicable, the Optionee's beneficiary or estate, has made
appropriate arrangements for the payment to the Company of an
amount sufficient to satisfy any applicable U.S.federal, state and
local and non-U.S. tax withholding or other tax requirements, as
determined by the Company. To satisfy the Optionee's applicable
withholding and other tax requirements, the Company shall be
entitled, in its sole discretion, to withhold Option Shares having
a Fair Market Value on the Option Exercise Date equal to the
applicable amount of such withholding and other tax requirements,
subject to any rules adopted by the Committee or required to
ensure compliance with applicable law, including, but not limited
to, Section 16(b)of the Securities Exchange Act of 1934, as
amended. Any cash payment made pursuant to Section 11 shall be
made net of any amounts required to be withheld or paid with
respect thereto (and with respect to any shares of Common Stock
delivered contemporaneously therewith) under any applicable U.S.
federal, state and local and non-U.S. tax withholding and other
tax requirements.
6. Assignability.
------------- This Option may not be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated by the Optionee
otherwise than by will or the laws of descent and distribution and
is exercisable during Optionee's lifetime only by the Optionee.
7. Adjustment in Capitalization.
----------------------------
(a) The aggregate number of shares of Common Stock subject to the
Option and the option exercise price and/or exercisability
criteria applicable to the Option shall be proportionately
6
<PAGE>
adjusted to reflect, as deemed equitable and appropriate by
the Committee, an Adjustment Event. To the extent deemed
equitable and appropriate by the Committee, subject to any
required action by stockholders, in any merger, consolidation,
reorganization, liquidation, dissolution or other similar
transaction, the Option shall pertain to the securities and
other property to which a holder of the number of shares of
Common Stock then covered by the Option would have been
entitled to receive in connection with such event.
(b) Any shares of stock (whether Common Stock, shares of stock
into which shares of Common Stock are converted or for which
shares of Common Stock are exchanged or shares of stock
distributed with respect to Common Stock) or cash or other
property received with respect to the Option as a result of
any Adjustment Event, any distribution of property or any
merger, consolidation, reorganization, liquidation,
dissolution or other similar transaction shall, except as
otherwise provided by the Committee, be subject to the same
terms and conditions, including restrictions on exercisability
or transfer, as are applicable to the Option with respect to
which such shares, cash or other property is received and
stock certificate(s) representing or evidencing any shares of
stock or other property so received shall be legended as
appropriate.
8. Preemption by Applicable Laws and Regulations.
------------------------------------------------- Notwithstanding
anything in the Plan or this
Agreement to the contrary, the issuance of shares of Common Stock
hereunder shall be subject to compliance with all applicable U.S.
federal, state and non-U.S. securities laws. Without limiting the
foregoing, if any law, regulation or requirement of any
governmental authority having jurisdiction shall require either
the Company or the Optionee (or the Optionee's beneficiary or
estate) to take any action in connection with the issuance of any
shares of Common Stock hereunder, the issuance of such shares
shall be deferred until such action shall have been taken to the
satisfaction of the Company.
9. Interpretation; Construction.
----------------------------
All of the powers and authority
conferred upon the Committee pursuant to any term of the Plan
or the Agreement shall be exercised by the Committee, in its
discretion. All determinations, interpretations or other actions
made or taken by the Committee pursuant to the provisions of the
Plan or the Agreement shall be final, binding and conclusive
for all purposes and upon all persons and, in the event of any
judicial review thereof, shall be overturned only if arbitrary
and capricious. The Committee may consult with legal counsel,
who may be counsel to the Company, and shall not incur any
liability for any action taken in good faith in reliance upon the
advice of counsel.
10. Amendment.
--------- The Committee shall have the right, in its sole
discretion, to alter or amend this Agreement, from time to time,
as provided in the Plan in any manner for the purpose of
promoting the objectives of the Plan, provided that no such
amendment shall impair the Optionee's rights under this Agreement
without the Optionee's consent. Subject to the preceding
sentence, any alteration or amendment of this
Agreement by the Committee shall, upon adoption thereof by the
Committee, become and be binding and conclusive on all persons
affected thereby without requirement for consent or other action
with respect thereto by any such person. The Company shall give
written notice to the Optionee of any such alteration or amendment
of this Agreement as promptly as practicable after the adoption
thereof. This Agreement may also be amended by a writing signed by
both the Company and the Optionee.
7
<PAGE>
11. Change of Control.
-----------------
(a) Subject to Section 11(b), in the event of a Change in Control,
the Option shall promptly be canceled in exchange for a
payment in cash of an amount equal to the product of (i) the
excess of the Change in Control Price over the per share
option exercise price for such Option and (ii) the number of
Option Shares then subject to such Option.
(b) Notwithstanding the foregoing, no cancellation, acceleration
of exercisability, vesting, cash settlement or other payment
shall occur with respect to the Option if the Committee
reasonably determines in good faith prior to the occurrence of
a Change in Control that such Option shall be honored or
assumed, or new rights substituted therefor (such honored,
assumed or substituted award hereinafter called an
"Alternative Award"), by the Optionee's employer (or the
parent or a subsidiary of such employer) immediately following
the Change in Control, provided that any such Alternative
Award must:
(i) be based on stock which is traded on an established
securities market, or which will be so traded within 60
days following the Change in Control;
(ii)provide the Optionee with rights and entitlements
substantially equivalent to or better than the rights and
entitlements applicable under the Option, including, but
not limited to, an identical or better exercise and
vesting schedule and identical or better timing and
methods of payment;
(iii) have substantially equivalent economic value to the
Option (determined by the Committee as constituted
immediately prior to the Change in Control, in its sole
discretion, promptly after the Change in Control); and
(iv)have terms and conditions which provide that, in the event
the Optionee's employment is involuntarily terminated or
constructively terminated (other than for Cause) upon or
following the Change in Control, any conditions on the
Optionee's rights under, or any restrictions on the
exercisability applicable to, the Alternative Award shall
be waived or shall lapse, as the case may be.
For this purpose, a constructive termination shall mean a
termination of the Optionee's employment upon or following
a Change in Control by the Optionee following a material
reduction in the Optionee's compensation, a material
reduction in the Optionee's responsibilities or the
relocation of the Optionee's principal place of employment
to another location a material distance farther away from
the Optionee's home, in each case, without the Optionee's
prior written consent.
12. No Rights as a Stockholder.
--------------------------- The Optionee shall have no voting or
other rights as a stockholder of the Company with respect to any
8
<PAGE>
Option Shares until the exercise of the Option and the recording
of the Optionee's ownership of the Option Shares on the stock
transfer records for the Common Stock. No adjustment shall be made
for dividends or other rights issued with respect to the Common
Stock for which the record date is prior to the recording of such
ownership of the Option Shares.
13. Miscellaneous.
-------------
(a) Notices.
------- All notices and other communications required or
permitted to be given under this Agreement shall be in writing
and shall be deemed to have been given if delivered personally
or sent by certified or express mail, return receipt
requested, postage prepaid, or by any recognized international
equivalent of such delivery, to the Company or the Optionee,
as the case may be, at the following addresses or to such
other address as the Company or the Optionee, as the case may
be, shall specify by notice to the others delivered in
accordance with this Section 13(a):
(i) if to the Company, to it at:
740 New Circle Rd. NW
Lexington, Kentucky 40511-1876
Attention: Secretary
---------
(ii)if to the Optionee, to the Optionee at the address set
forth on the signature page hereof.
All such notices and communications shall be deemed to have
been received on the date of delivery or on the third business
day after the mailing thereof.
(b) Binding Effect; Benefits.
------------------------ This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and
their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended or shall be
construed to give any person other than the parties to this
Agreement or their respective successors or assigns any legal
or equitable right, remedy or claim under or in respect of any
agreement or any provision contained herein.
(c) Waiver.
------ Any party hereto may by written notice to the other
party (i) extend the time for the performance of any of the
obligations or other actions of the other party under this
Agreement, (ii) waive compliance with any of the conditions or
covenants of the other party contained in this Agreement and
(iii) waive or modify performance of any of the obligations of
the other party under this Agreement. Except as provided in
the preceding sentence, no action taken pursuant to this
Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained
herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed
as a waiver of any preceding or succeeding breach and no
failure by a party to exercise any right or privilege
9
<PAGE>
hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or
times hereunder.
(d) Assignability.
------------- Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof
shall be assignable by the Company or the Optionee without the
prior written consent of the other party.
(e) Applicable Law.
--------------- This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware, regardless of the law that might be applied under
principles of conflict of laws.
(f) Section and Other Headings, Etc.
----------------------------------- The section and other
headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or
interpretation of this Agreement. In this Agreement all
references to "dollars" or "$" are to United States dollars.
(g) Counterparts.
------------ This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
instrument.
10
<PAGE>
IN WITNESS WHEREOF, the Company and the Optionee have executed
this Agreement as of the date first above written.
LEXMARK INTERNATIONAL GROUP, INC.
By:
------------------------------------
Name: Kathleen J. Affeldt
Title: Vice President of Human Resources
OPTIONEE:
By:
------------------------------------
Name:
Title:
Address of the Optionee:
--------------------------------
Beneficiary Name
Number of shares of Common Stock
subject to the Option:
11
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LEXMARK INTERNATIONAL GROUP, INC. FOR THE SIX
MONTHS ENDED JUNE 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 34
<SECURITIES> 0
<RECEIVABLES> 391
<ALLOWANCES> 18
<INVENTORY> 412
<CURRENT-ASSETS> 880
<PP&E> 407
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,311
<CURRENT-LIABILITIES> 558
<BONDS> 149
0
0
<COMMON> 1
<OTHER-SE> 496
<TOTAL-LIABILITY-AND-EQUITY> 1,311
<SALES> 1,369
<TOTAL-REVENUES> 1,369
<CGS> 866
<TOTAL-COSTS> 866
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5
<INCOME-PRETAX> 155
<INCOME-TAX> 52
<INCOME-CONTINUING> 103
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 103
<EPS-PRIMARY> 1.53
<EPS-DILUTED> 1.44
</TABLE>
