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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
(Mark One)
X For the Fiscal Year Ended December 31, 1997
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 New Circle Road NW
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:
Name of each exchange
Title of each class on which registered
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Class A common stock, $.01 par value New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
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 ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
As of February 28, 1998, there were outstanding 68,281,134 shares (excluding
shares held in treasury) of the registrant's Class A common stock, par value
$.01, which is the only class of voting common stock of the registrant, and
there were no shares outstanding of the registrant's Class B common stock, par
value $.01. As of that date, the aggregate market value of the shares of voting
common stock held by non-affiliates of the registrant (based on the closing
price for the Class A common stock on the New York Stock Exchange on February
28, 1998) was approximately $2,610,055,123.
Documents Incorporated by Reference
Certain information in the company's definitive Proxy Statement for the 1998
Annual Meeting of Stockholders, which will be filed with the Securities and
Exchange Commission pursuant to Regulation 14A, not later than 120 days after
the end of the fiscal year, is incorporated by reference in Part III of this
Form 10-K.
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<PAGE>
LEXMARK INTERNATIONAL GROUP, INC.
FORM 10-K
For the Year Ended December 31, 1997
Page of
Form 10-K
PART I
ITEM 1. BUSINESS............................................................3
ITEM 2. PROPERTIES.........................................................17
ITEM 3. LEGAL PROCEEDINGS..................................................18
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS................18
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.............................................19
ITEM 6. SELECTED FINANCIAL DATA...........................................20
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.......................................21
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK........33
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.......................34
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE........................................60
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT................61
ITEM 11. EXECUTIVE COMPENSATION............................................63
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT....63
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS....................63
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K...64
<PAGE>
Part I
Item 1. Business
Lexmark International Group, Inc. ("LIG") is a Delaware corporation that has as
its only significant asset all the outstanding common stock of Lexmark
International, Inc., a Delaware corporation ("Lexmark International").
Hereinafter, "the company" and "Lexmark" will refer to LIG, or to LIG and
Lexmark International, including its subsidiaries, as the context requires. LIG
was formed in 1990 by Clayton, Dubilier & Rice, Inc., a private investment firm
("CD&R"), in connection with the acquisition (the "Acquisition") of IBM
Information Products Corporation (renamed Lexmark International) from IBM. The
Acquisition was completed in March 1991.
General
Lexmark is a global developer, manufacturer and supplier of laser and inkjet
printers and associated consumable supplies for the office and home markets.
Lexmark also sells dot matrix printers for printing single and multi-part forms
by business users. In 1997, revenues from the sale of printers and associated
printer supplies increased 10% from 1996 and accounted for 81% of total company
revenues of approximately $2.5 billion.
The company's installed base of printers supports a large and profitable printer
supplies business. Because consumable supplies must be replaced on average one
to three times a year, depending on type of printer and usage, demand for laser
and inkjet print cartridges is increasing at a higher rate than their associated
printer shipments. This is a relatively high margin, recurring business that
management expects to contribute to the stability of Lexmark's earnings over
time.
In addition to its core printer business, Lexmark develops, manufactures and
markets a broad line of other office imaging products which include supplies for
IBM branded printers, after-market supplies for original equipment manufacturer
("OEM") products, and typewriters and typewriter supplies that are sold under
the IBM trademark. In 1997, revenues from the sale of other office imaging
products decreased 7% from 1996, primarily as a result of lower typewriter sales
and lower typewriter and impact printing supplies volumes reflecting the
continued decline of these markets, and accounted for 19% of total company
revenues.
The company operates in the office products industry segment. Revenues by major
product line are found in Part II, Item 7, Results of Operations.
Revenues derived from international sales, including exports from the United
States, make up over half of the company's revenues. Lexmark's products are sold
in over 150 countries in North and South America, Europe, the Middle East,
Africa, Asia, the Pacific Rim and the Caribbean. While currency translation has
significantly affected international revenues and cost of revenues, it did not
have a material impact on operating income through 1997. Although the company
manages its net exposure to exchange rate fluctuations through operational
hedges, such as pricing actions and product sourcing changes, and financial
instruments, such as forward exchange contracts and currency options, there can
be no assurances that currency fluctuations will not have a material impact on
operating income in the future. As the company's international operations
continue to grow, more management effort will be required to focus on the
operation and expansion of the company's global business and to manage the
cultural, language and legal differences inherent in international operations. A
summary of the company's revenues, operating income and total assets by
geographic area is found in Part II, Item 8, Notes to Consolidated Financial
Statements, Note 18.
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Printers and Associated Supplies
Lexmark competes primarily in the markets for office desktop laser and color
inkjet printers--two of the fastest growing printer categories. Sales of office
desktop laser and color inkjet printers and their associated supplies together
represented approximately 87% and 86% of Lexmark's total printer and associated
supplies revenues in 1997 and 1996, respectively.
Laser Printers. Network laser printer growth is being driven by the office
migration from large mainframe computers to local area networks that link
various types of computers using a variety of protocols and operating systems.
This shift has created strong demand for office desktop laser printers with
network connectivity attributes. Laser printers that print at speeds of 11-30
pages per minute ("ppm") are referred to herein as "office desktop" or "network"
printers, while lower-speed (1-10 ppm) laser printers and inkjet printers are
referred to herein as "personal" printers. With its Optra S laser printers, a
majority of the company's laser printers are office desktop printers, which the
company believes is one of the fastest growing segments of the laser printer
market. For further discussion of the evolving nature of laser printer
classifications, see "Market Overview and Strategy-Printers and Associated
Supplies".
Lexmark develops and owns most of the technology for its desktop laser printers
and consumable supplies, which differentiates the company from a number of its
major competitors, including Hewlett-Packard Company ("HP") which purchases its
laser engines from a third party. Lexmark's integration of research and
development, manufacturing and marketing has enabled the company to design laser
printers with features desired by specific customer groups and has resulted in
substantial market presence for Lexmark within certain industry segments such as
banking, retail/pharmacy, automobile distribution and health care. The company's
critical technology and manufacturing capabilities have allowed Lexmark to
effectively manage quality and to reduce its typical new product introduction
cycle times, for example, in the case of laser printers from 24 months to
approximately 12 to 16 months. Management believes its cycle times are among the
fastest in the industry and that these capabilities have contributed to the
company's success over the last several years.
Inkjet Printers. The color inkjet printer market, the fastest growing segment of
the personal printer market, is expanding rapidly due to growth in personal
computers at home and in business and the development of easy-to-use color
inkjet technology with high quality color and black print capability at low
prices. Based on data from industry analysts, management believes that the
inkjet market grew from 4 million units in 1992 to 33 million units in 1997 and
will continue to grow substantially as a result of the increase in the number of
personal computers and as the inkjet market continues to shift from monochrome
to color and as inkjet printers continue to replace low-speed laser printers.
Lexmark introduced its first color inkjet printer using its own technology in
1994 and has experienced strong sales growth through retail outlets. The company
has increased its product distribution through retail outlets, with the number
of such outlets worldwide rising from approximately 5,000 retail outlets in 1995
to more than 15,000 in 1996, and remaining relatively constant during 1997. The
company's ability to increase or maintain its presence in the retail marketplace
with its branded products may be adversely affected as the company becomes more
successful in its sales and marketing efforts for OEM opportunities. The company
has made substantial capital investments in its inkjet production capacity in
1995 and 1996 to address the growing demand for its color inkjet printers.
Supplies. The company is currently the exclusive source for new print cartridges
for the laser and inkjet printers it manufactures. Management expects that an
increasing percentage of future company earnings will come from its consumable
supplies business due to the consumer's continual usage and replacement of
cartridges. In 1996, the company substantially expanded its inkjet cartridge
manufacturing capacity in both North America and Europe.
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Other Office Imaging Products
The company's other office imaging products category includes many mature
products such as supplies for IBM printers, typewriters and typewriter supplies
and other impact supplies that require little investment but provide a
significant source of cash flow. The company introduced after-market laser
cartridges in May 1995 for the large installed base of a range of laser printers
sold by other manufacturers. Management believes that the potential for an
after-market laser cartridge business is significant. The company's strategy for
other office imaging products is to pursue the after-market OEM laser supplies
opportunity while at the same time managing its mature businesses for cash flow.
Keyboards and Other
In the first quarter of 1996, the company completed the phase-out of its
keyboard business. Keyboard sales accounted for 8% and 3%, respectively, of the
company's revenue and gross profit for 1995.
Market Overview and Strategy
Printers and Associated Supplies
Market Overview
In 1997, estimated industry-wide revenue for printer hardware in the 1-30 ppm
speed category, including network, personal and dot matrix, was approximately
$27 billion. Management believes, based on industry analysts' estimates, that
this market will in the aggregate continue to experience modest growth through
2000. However, the company believes that certain product categories within this
market that it has targeted, such as office desktop laser printers and color
inkjet printers, will experience double-digit growth in volume. An overview of
the printer markets in which the company competes is summarized below:
<TABLE>
<CAPTION>
U.S. Primary Paper
Speed Price Range Print Quality Market Media
----- ----------- ------------- ------- -----
<S> <C> <C> <C> <C> <C>
Color Laser 2-5 ppm $3,000-8,000 Better/Best (300-600 dpi) Office Plain
Mono Laser: $ 400-4,000 Best (1200 x 1200 dpi) Office Plain
Personal 1-10 ppm
Office Desktop/
Network 11-30 ppm
Color Inkjet 1-9 ppm $ 140-3,000 Better (300-1440 dpi) Home Plain/Coated/
Specialty
Dot Matrix 2-4 ppm $ 100-600 Good (240-360 dpi) Office Plain/Multi Parts
</TABLE>
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Laser Printers. The laser printer market is categorized by print speeds. Office
desktop or network monochrome laser printers are those that print 11-30 ppm
while low-speed lasers typically print 1-10 ppm*. Management believes that the
overall printer market is bifurcating into two principal segments: office
desktop printers suitable for an office environment and low-speed, lower cost
printers suitable for recreational and home office use by individuals.
In recent years, businesses have shifted from relying on large mainframe
computers to using local area networks ("LAN") that connect various types of
computers using a variety of protocols and operating systems. With this shift
has come the need for network printers that can communicate with, and adapt to,
the various configurations of the computers they serve. The ability to process
jobs quickly is also important. Most printers employed in the network
environment are office desktop printers with sophisticated software management
tools. Management expects network printers to continue to increase in speed and
that special features will proliferate to enhance network connectivity.
Low-speed laser printers are generally used as personal printers and are not
connected to networks. This segment is characterized by intense price pressure
and is vulnerable to replacement by low cost, color inkjet printers.
Based on the available market data, management believes that between 1991 and
1997 there was steady growth in overall shipments of network and personal laser
printers (1-30 ppm), although different segments of the market experienced
different growth rates. The company's shipments of network and personal laser
printers taken as a whole during 1991 to 1997 increased at a compound annual
rate, which management believes reflected the overall rate of growth of the
market as a whole. Within the office desktop network laser printer category,
Lexmark shipments increased at a rate which enabled the company to gain market
share. Lexmark shipments of low-speed laser printers also grew during the same
period but not as fast as the market growth within that category. Management
expects the market unit volume for low-speed laser printers to grow moderately
but that the market for office desktop laser printers--which includes the
company's Optra S line of laser printers--will experience, on average,
double-digit growth through 2001.
Laser printer unit growth in recent years has generally exceeded the growth rate
of laser printer revenues due to unit price pressure. This is partially offset
by the tendency for customers in the network segment of the market to trade up
to models with faster speeds, greater network connectivity, and other new
features. New models with such enhanced features generally sell at higher price
points and carry higher gross profit margins than the models they replace.
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* Data available from industry analysts as to the size of the laser and inkjet
printer market varies widely. The variance in laser printer market data is
caused in part by the rapid pace of change in laser printer speeds which makes
comparative analyses based on comparable product categories difficult over a
recent historical period. The company bases its analysis of historical market
trends on the data available from several different industry analysts. The
ranges of printing speed used to define and distinguish between laser printer
categories described herein are based on the company's own internal analysis of
the laser printer categories currently used by certain industry analysts to
measure the laser printer market.
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Inkjet Printers. Growth in the market for inkjet printers, which are mainly used
as personal printers, reflects increased penetration of personal computers for
recreational and home office use. Strong market demand also reflects the
availability of low-cost technology capable of providing customers with good
quality printing at affordable prices. Lexmark's shipments of inkjet printers
increased at or near triple-digit rates annually from 1993 through 1996 and at
double-digit rates for 1997 which has enabled the company to gain market share.
Lexmark entered the color inkjet printer market with its own technology in 1994.
Growth in inkjet printer revenue has been slower than unit growth due to rapidly
declining prices. The greater affordability of color inkjet printers has been an
important factor in the explosive growth of this market.
Dot Matrix Printers. The market for dot matrix printers has been declining for
several years and volumes are expected to continue to decline in the future due
in large part to replacement by inkjet printers with higher print quality.
Associated Printer Supplies. Printer supplies products are defined by the
printing technology. Impact supplies are used in printers and typewriters that
put marks on paper through the use of some form of physical force, usually a
wire or hammer which applies force to a ribbon. The majority of impact supplies
are either fabric or film ribbons. Non-impact supplies are used in printers that
do not use force to put marks on paper. For example, the laser printer uses
electrophotography to place toner on paper. Non-impact supplies include toner
and photoconductor as well as ink cartridges used in inkjet printers.
The principal supply product for laser printers is a laser cartridge, which
includes toner and photoconductor. The principal supply product for inkjet
printers is an inkjet print cartridge, which includes ink and a circuit
assembly. The principal supply product for Lexmark's dot matrix printers is an
inked fabric ribbon. As the installed base of Lexmark laser and inkjet printers
continues to grow, the market for their associated supplies will grow as such
supplies are continually purchased throughout the life of the printers.
Strategy
Lexmark's laser printer strategy is to target fast growing industry segments of
the network printer market and to increase market share by providing high
quality, technologically advanced products at competitive prices. To promote
Lexmark brand awareness and market penetration, Lexmark will continue to
identify and focus on customer segments where Lexmark can differentiate itself
by supplying laser printers with features that meet specific customer needs and
represent the best total cost of printing solution. Management intends to
continue to develop and market products with more functions and capabilities
than comparably priced HP printers. The company's inkjet printer strategy is to
generate demand for the Lexmark color inkjet printer by offering high-quality
products at competitive prices to retail, business and OEM customers. Management
expects that the company's associated printer supplies business will continue to
grow as its installed base of laser and inkjet printers increases.
For the business customer, Lexmark expects to continue to offer an array of
advanced laser printer products with superior features and functions, higher
speeds and better print resolution at competitive prices. The company believes
that it is well-positioned to take advantage of the growth potential of LAN
printers due to its development and ownership of both the software and hardware
features that provide network connectivity and management tools. Lexmark has
targeted the office desktop laser printer markets and, as it has with the 1,200
dpi Optra S family, intends to remain one of the few printer companies that
create industry-wide standards for laser printer performance. Lexmark focuses
continually on enhancing the network capability of its laser printers by
introducing new products, like its MarkVision printer management utility, that
enhance the ability of its printers to function efficiently in a LAN environment
and provide significant flexibility to the LAN user.
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Lexmark's large account marketing team focuses on demand generation in Fortune
1000 companies, other large corporations globally and specific industries where
Lexmark can differentiate itself by supplying high function products with
customized features to meet specific needs. These marketing teams work with
Lexmark's development teams to design features requested by large account
customers for specific functions. Lexmark has had recent success in its large
account marketing team's target markets, such as in the finance sector (whose
customers are served by Lexmark's duplex (double-sided printing) and "flash
memory" feature which permits instantaneous printing and updating of forms in
all locations). Another of the company's strategies is to offer its advanced
network management software in products to enable these financial institutions
to more efficiently manage and control their network printing activities.
Lexmark expects that its marketing strategy focusing on significant industry
segments will promote Lexmark brand awareness and provide a platform for greater
penetration of the laser printer market through sales by dealers and
distributors.
For the office and home user, Lexmark focuses on manufacturing well-priced,
reliable, easy-to-use color inkjet printers. The company expects that hardware
improvements in this market will result in faster printing and better print
quality. On the software side, the company expects that enhanced compatibility
with standard PC operating systems, such as Microsoft Windows 95 and Windows NT,
and software features that take advantage of the computing power of the PC for
printing functions will permit the company to reduce manufacturing costs for the
printers and to produce a product that is easier to use. Lexmark believes that
its core product offerings in this market will also permit it to build brand
recognition in the retail channels. The company has increased its product
distribution through retail outlets, with the number of such outlets worldwide
rising from approximately 5,000 retail outlets in 1995 to more than 15,000 in
1996, and remaining relatively constant during 1997. The company's ability to
increase or maintain its presence in the retail marketplace with its branded
products may be adversely affected as the company becomes more successful in its
sales and marketing efforts for OEM opportunities.
On the manufacturing side, the company is continually focusing on ways to reduce
costs and expand capacity while maintaining high quality. The company will also
consider strategic acquisitions in the future to leverage its technological
expertise.
Other Office Imaging Products
Market Overview
Other office imaging products include typewriters for office use and associated
supplies sold under the IBM name, impact supplies for Lexmark printers that are
no longer in production, supplies for IBM branded printers and after-market
printer supplies for other OEM printers. The markets for most of the company's
other office imaging products are generally declining, other than the market for
after-market laser cartridges for other OEM printers, which the company believes
is a market with significant growth potential.
In 1997, non-impact supplies were estimated to be an approximately $31 billion
opportunity worldwide, compared to the impact supplies opportunity of
approximately $2 billion. Based on available industry data, the company
estimates that worldwide impact supplies revenue will decline steadily in future
years, while non-impact supplies revenue will continue to grow.
Management expects that office typewriter market revenue will continue to
decline.
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Strategy
In view of declining revenues and profit margins from sales of typewriters and
typewriter supplies and sales of other office imaging products for IBM printers,
the company's strategy for other office imaging products is to focus on the
after-market OEM supplies opportunity while managing its mature businesses for
cash flow. The company will continue to compete with other OEMs to provide
supplies for their installed bases of laser printers. The company may pursue
selected acquisitions of other office imaging products companies.
Lexmark will make minimal further investment in impact supplies and management
expects profit margins on such products to decline as a result of new agreements
with IBM that generally became effective on March 27, 1996. As a result of its
high quality products, the company benefits from customer loyalty, which has
historically permitted it to continue its premium pricing strategy.
Keyboards and Other
The company historically manufactured keyboards primarily for IBM. Following the
expiration in March 1996 of the company's keyboard agreement with IBM and
management's expectation that the keyboard industry will continue to experience
price declines resulting in low margins and a low return on assets, the company
completed its transition out of the keyboard business by the end of the first
quarter of 1996. Keyboard sales accounted for 8% and 3%, respectively, of the
company's revenue and gross profit for 1995.
Products
The company's current product offerings consist primarily of the Lexmark Optra S
laser printer product line and Optra SC color laser printer, the Optra E+
personal laser printer, a wide range of inkjet printers, a family of network
print servers, typewriters and dot matrix printers. The company also designs,
manufactures and distributes a variety of print cartridges for use in its laser
and inkjet printers as well as approximately 900 other office imaging products,
including typewriter supplies and supplies for other printers, including IBM
printers.
Lexmark's main printer products are listed below:
Category Products U.S. Price Range
-------- -------- ----------------
Office Desktop/Network
Mono Laser Optra S 1250 $1,050-1,400
Optra S 1650/1620 $1,050-1,500
Optra S 2450/2420 $1,600-2,500
Optra N $2,500-3,100
Color Laser Optra SC 1275 $3,900-4,600
Personal Laser Optra E+ $ 400-700
Color Inkjet Color Jetprinter 1000, 2030 & 2050 $ 140-200
Color Jetprinter 3000 $ 200-300
Color Jetprinter 5700 $ 249
Color Jetprinter 7000, 7200 & 7200V $ 300-500
Color Jetprinter 4079+ $2,650-3,000
Dot Matrix 23XX $ 300-600
4227 $1,300-1,800
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The company has upgraded and improved its laser printer product offerings
significantly since the Acquisition with the introduction of several models
adding functionality and performance at lower prices. The company's current
network laser family, the Optra S line, was introduced in the second quarter of
1997 and offers ten products at various price ranges. The Optra S line includes
models at 12, 16 and 24 ppm and include 1,200 dpi printing, high performance
RISC processors and a wide range of paper handling options. The Optra SC color
laser printers offer high quality business color printing at 12 ppm black and 3
ppm color. Another standard feature of the product line is MarkVision, Lexmark's
printer management program, which permits bi-directional communication for
status management between the user or LAN administrator and the printer.
In addition to offering connectivity solutions and management tools as features
on its laser printers, Lexmark also designs and manufactures network print
servers. These products provide a means to connect virtually any printer to a
local or wide area network. The company's current product offering is the
MarkNet Pro series, a family of print servers capable of simultaneous support of
multiple networking environments. The MarkNet Pro 3 provides direct network
connection for multiple printers and can also connect an external fax modem for
printing incoming fax. The MarkNet Pro 1 provides direct network connection for
a single printer at a lower cost.
The company currently markets a number of personal color inkjet printers for
individual home and office use. These printers generally retail in a range of
$140-$500 and offer sharp color printing, fast performance, compatibility with
leading software applications, and ease of installation and use.
The company also markets five dot matrix printers in the $300-$1,800 price range
for customers who print large volumes of multi-part forms.
The company designs, manufactures and distributes a variety of cartridges for
use in its installed base of laser and inkjet printers. Lexmark is currently the
exclusive source for new print cartridges for the printers it manufactures.
The company's other office imaging products include approximately 900 products,
including typewriter products and products for IBM and other OEM printers using
both impact and non-impact technology. The company continues to offer a broad
line of typewriters with the IBM logo, which remain the industry leaders. The
company also provides a wide range of supplies for the large installed base of
IBM printers including toners, ribbons, photoconductors and other printer
accessories. Lexmark also manufacturers and sells after-market laser cartridges
for laser printers sold by other manufacturers.
Marketing and Distribution
Printers and Associated Supplies
The company markets and distributes its laser printers primarily through its
well-established dealer network, which includes such dealers as Microage
Computers, Ameridata, Vanstar, Tech Data, Merisel, Ingram Micro, Computer 2000,
North Amber and Inacom. The company's products are also sold through value-added
resellers, who offer custom solutions to specific markets.
The company employs large account marketing teams whose mission is to generate
demand for Lexmark printers primarily among Fortune 1000 companies and other
large corporations globally. In recent years, marketing teams have begun to
focus on industry segments such as banking, retail/pharmacy, automobile
distribution and health care. Those teams, in conjunction with the company's
development and manufacturing teams, are able to design products to meet
customer specifications for printing electronic forms, media handling, duplex
printing and other
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custom solutions. Almost all customer orders solicited by these marketing teams
are filled through dealers or resellers.
The company distributes its personal inkjet printers primarily through more than
15,000 retail outlets worldwide including office superstores such as Office
Depot, Office Max and Staples, computer superstores such as Computer City,
consumer electronics stores such as Circuit City, Best Buy and Radio Shack,
other large regional chains and overseas stores such as Dixons, Carrefour,
Harvey Norman and Vobis. The company's ability to increase or maintain its
presence in the retail marketplace with its branded products may be adversely
affected as the company becomes more successful in its sales and marketing
efforts for OEM opportunities.
The company's international sales are an important component of its operations.
The company's sales and marketing activities in its global markets are organized
to meet the needs of the local jurisdictions and the size of their markets. The
company's European marketing operation is structured similarly to its domestic
marketing activity. The company's products are available from major information
technology resellers such as Northamber and in large markets from key retailers
such as Media Markt in Germany, Dixons in the United Kingdom and Carrefour in
France. Canadian marketing activities, like those in the United States, focus on
large account demand generation and vertical markets, with orders filled through
distributors and retailers. The company's Latin American and Asian Pacific
markets are served through a combination of Lexmark sales offices, strategic
partnerships and distributors. The company also has sales and marketing efforts
for OEM opportunities. To the extent these efforts become successful, there may
be an adverse affect on the company's ability to increase or maintain its
presence in the retail marketplace with its branded products.
The company's printer supplies and other office imaging products are generally
available at the customer's preferred point of purchase through multiple
channels of distribution. Although channel mix varies somewhat depending on the
geography, substantially all of the company's supplies products sold
commercially in 1997 were sold through the company's network of
Lexmark-authorized supplies distributors and resellers who sell directly to end
users or to independent office supply dealers. Lexmark's supplies are also
available at office and computer superstores, consumer electronics stores and
mass merchandisers.
Competition
Printers and Associated Supplies
The markets for printers and associated supplies are highly competitive,
especially with respect to pricing and the introduction of new products and
features. The office desktop laser printer market is dominated by HP, which has
a widely recognized brand name and has been estimated to have an approximate 65%
to 70% market share. Several other large manufacturers such as Canon, Apple,
Xerox and IBM also compete in the laser printer market.
The company's strategy is to target fast growing segments of the network printer
market and to increase market share by providing high quality, technologically
advanced products at competitive prices. This strategy requires that the company
continue to develop and market new and innovative products at competitive
prices. New product announcements by the company's principal competitors,
however, can have and in the past have had a material adverse effect on the
company's financial results. Such new product announcements can quickly
undermine any technological competitive edge that one manufacturer may enjoy
over another and set new market standards for quality, speed and function.
Furthermore, knowledge in the marketplace about pending new product
announcements by the company's competitors may also have a material adverse
effect on the company inasmuch
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as purchasers of printers may defer purchasing decisions until the announcement
and subsequent testing of such new products.
In recent years, the company and its principal competitors, all of which have
significantly greater financial, marketing and technological resources than the
company, have regularly lowered prices on printers and are expected to continue
to do so. The company is vulnerable to these pricing pressures which, if not
mitigated by cost and expense reductions, may result in lower profitability and
could jeopardize the company's ability to grow or maintain market share and
build an installed base of Lexmark printers. The company expects that, as it
competes more successfully with its larger competitors, the company's increased
market presence may attract more frequent challenges, both legal and commercial,
from its competitors, including claims of possible intellectual property
infringement.
HP is also the market leader in the personal color inkjet printer market and,
with Canon and Epson, has been estimated to account for approximately 80% to 90%
of worldwide personal color inkjet printer sales. As with laser printers, if
pricing pressures are not mitigated by cost and expense reductions, the
company's ability to maintain or build market share and its profitability could
be adversely affected. In addition, as a relatively new entrant to the retail
marketplace with a less widely recognized brand name, the company must compete
with HP, Canon and Epson for retail shelf space for its inkjet printers. The
company's ability to increase or maintain its presence in the retail marketplace
with its branded products may be adversely affected as the company becomes more
successful in its sales and marketing efforts for OEM opportunities.
Like certain of its competitors (including Xerox), the company is a supplier of
after-market laser cartridges for laser printers using certain models of Canon
engines. There is no assurance that the company will be able to compete
effectively for a share of the after-market cartridge business for its
competitors' base of laser printers. The company's participation in this market
may have an adverse effect on the company's relations with certain of its
suppliers. Although Lexmark is currently the exclusive supplier of new print
cartridges for its laser printers, there can be no assurance that other
companies will not develop new compatible cartridges for Lexmark laser printers.
In addition, refill and remanufactured alternatives for the company's cartridges
are available from independent suppliers and, although generally offering lower
print quality, compete with the company's supplies business. As the installed
base of laser and inkjet printers grows and ages, the company expects
competitive refill and remanufacturing activity to increase.
Other Office Imaging Products
The market for other office imaging products is extremely competitive and the
impact segment of the supplies market is declining. Although the company has
exclusive rights to market certain IBM branded supplies until April 1999, there
are more than 100 independent ribbon manufacturers and more than 25 independent
toner manufacturers competing to provide compatible supplies for IBM branded
printing products. Independent manufacturers compete for the after-market ribbon
business under either their own brand, private label, or both, using price,
aggressive marketing programs, and flexible terms and conditions to attract
customers. Depending on the product, prices for compatible products produced by
independent manufacturers generally range from 15% to 70% below the company's
prices.
The company is less dependent on revenue and profitability from its other office
imaging products business than it has been historically and intends to focus on
the growing portions of that market such as the after-market laser cartridge
supplies category. There is no assurance that the company will be able to
compete in the after-market laser supplies business effectively or that the
declining market areas in its other office imaging products business will not
adversely affect the company's operating results.
12
<PAGE>
The company does not expect any major new entrants into the ribbon market.
However, in response to the declining impact supplies opportunity, many
established competitors are investing in non-impact capacity and joining forces
through acquisitions on a worldwide basis. The company's primary U.S.
competitors in the overall supplies market include Nu-kote, Turbon, GRC and NER.
Internationally, the company's primary competitors are Turbon, Armor, TBS, and
Pelikan (acquired by Nu-kote) in Europe and Fullmark in the Far East.
The company is increasing its efforts to provide laser supplies for other OEM
printers. As an after-market supplier in the all-in-one laser cartridge
business, the company faces competition from both the OEMs and cartridge
remanufacturers. In order to become an effective worldwide supplier of
after-market cartridges, the company will need to compete with HP, Canon and
Xerox.
The company believes the current number of competitors in the declining
worldwide office typewriter market is fewer than 10, down significantly from
over 40 in the mid-1980's. The three primary competitors in the U.S. market are
Canon, Nakajima and Swintec. The company believes that it is dominant in the
U.S. office typewriter market. Remaining office typewriter competitors with
multiple product lines continue to shift focus to other products in their
portfolios (copier, fax, PC, multifunction, etc.). No significant new office
typewriter product announcements have been made by any key competitor since
1993.
Manufacturing
The company's manufacturing facilities are located in Lexington, Kentucky,
Boulder, Colorado, Orleans, France and Sydney, Australia, all of which are ISO
9000 certified. The company opened new facilities during 1996 in Rosyth,
Scotland, which is ISO 9000 certified and Juarez, Mexico. Most of the company's
laser and inkjet technologies are developed in Lexington and Boulder. The
company's manufacturing strategy is to keep processes that are technologically
complex, proprietary in nature and higher value added, such as the manufacture
of inkjet cartridges, at the company's own facilities. Stable technology, labor
intensive and non-strategic operations, such as the manufacture of dot matrix
printers, are typically performed by lower-cost vendors.
Management believes that the Lexington manufacturing facility employs some of
the most modern techniques in the industry. In order to make its facility
capable of implementing new products with a shorter cycle time, the company
revamped the Lexington facility from a fully automated plant to a more flexible
facility. Accordingly, the company has the ability to adapt the plant to the
requirements of a new product and to adopt more efficient manufacturing
techniques as they are developed. The plant's electronic card assembly and test
facility with surface mount technologies also enhances the company's
manufacturing capability.
The company's development and manufacturing operations for laser printer
supplies which include toners, photoconductor drums, developers, charge rolls
and fuser rolls, are located in Boulder. The company has made significant
capital investments in the Boulder facility to expand toner and photoconductor
drum processes.
Raw Materials
The company procures a wide variety of components used in the manufacturing
process, including semiconductors, electro-mechanical components and assemblies,
as well as raw materials, such as plastic resins. Although many of these
components are standard off-the-shelf parts that are available from multiple
sources, the company often utilizes preferred supplier relationships to better
ensure more consistent quality, cost, and delivery. Typically, these preferred
suppliers maintain alternate processes and/or facilities to ensure continuity of
supply. The company generally must place commitments for its projected component
needs approximately three to six months in advance. The company occasionally
faces capacity constraints when there has been more demand for its printers and
associated supplies than initially projected.
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<PAGE>
Some components of the company's products are only available from one supplier,
including certain custom chemicals, microprocessors, application specific
integrated circuits and other semiconductors. In addition, the company sources
some printer engines and finished products from OEMs. Although the company
purchases in anticipation of its future requirements, should these components
not be available from any one of these suppliers, there can be no assurance that
production of certain of the company's products would not be disrupted. Such a
disruption could interfere with the company's ability to manufacture and sell
products and materially adversely affect the company's business.
Research and Development
The company's research and development activity for the past four years has
focused on laser and inkjet printers and associated supplies and on network
connectivity products. The company is selective in targeting its research and
development efforts. For example, anticipating the industry trend, the company
minimized investing in dot matrix technology in 1991 and has instead devoted its
research and development resources to the faster growing markets for laser and
inkjet printers. The company has been able to keep pace with product development
and improvement while spending less than its larger competitors on research and
development. It has even been able to achieve significant productivity
improvements and minimize research and development costs. In the case of certain
products, the company may elect to purchase products and key components from
third party suppliers.
The company is committed to being a technology leader in its targeted areas and
is actively engaged in the design and development of additional products and
enhancements to its existing products. Its engineering effort focuses on laser,
inkjet, and connectivity technologies as well as design features that will
increase efficiency and lower production costs. The process of developing new
technology products is complex and requires innovative designs that anticipate
customer needs and technological trends. Research and development expenditures
were $129 million in 1997, $124 million in 1996 and $116 million in 1995. In
addition, the company must make strategic decisions from time to time as to
which new technologies will produce products in market segments that will
experience the greatest future growth. There can be no assurance that the
company can continue to develop the more technologically advanced products
required to remain competitive.
IBM Relationship
In connection with the Acquisition, IBM entered into numerous agreements to
support the company's operations for a five-year term. These agreements, which
expired on March 27, 1996, included a keyboard supply agreement (which obligated
IBM to acquire essentially all of its desktop keyboard requirements from the
company), an internal use agreement (which obligated IBM to acquire
substantially all of its requirements for desktop printers, typewriters and
associated supplies from the company), an IBM trademark license agreement (which
permitted the company to use the IBM trademark on certain of its products) and a
non-competition agreement (pursuant to which IBM was prohibited from competing
with the company's products).
The company completed its transition out of the keyboard business by the end of
the first quarter of 1996 and entered into an agreement with IBM providing for
the orderly transition of the company's keyboard business to IBM or other
vendors. Under this agreement with IBM, IBM paid the company $36.5 million of
which $24 million related to amounts recorded by the company through September
30, 1995, $6 million of profit recorded through March 1996, and $6.5 million for
the purchase of certain keyboard assets. The company's keyboard business, of
which IBM represented approximately 95%, accounted for revenues of $32 million
and $177 million for the years 1996 and 1995, respectively. Under the original
agreement with IBM, the company's keyboard business was guaranteed a minimum
gross profit, and in the years ended 1996 and 1995 the keyboard business
contributed $6 million and $18 million, respectively, toward the company's
consolidated gross profit.
14
<PAGE>
Sales to IBM (excluding sales of keyboards) were $103 million, $163 million and
$258 million for the years 1997, 1996 and 1995, respectively. The company
believes IBM will continue to be a significant customer but that future revenue
and profitability from IBM sales will continue to decline as the company's core
printer and associated supplies business represents a larger percentage of the
company's total business.
In the third quarter of 1995, the company entered into a profit sharing supplies
agreement with IBM and a related agreement for an extension of the IBM trademark
agreement that allows the company to continue to use the IBM logo on certain
existing printer supplies in its other office imaging products line through
March 31, 1999. Under these agreements, Lexmark has been required since April
1996 to share the profits from the company's sale of certain products bearing
the IBM logo. The company also entered into a royalty agreement for an extension
of the right to use the IBM logo on typewriters, typewriter supplies and certain
other IBM branded printer supplies through March 27, 2001. Since these new
arrangements became effective on March 27, 1996, the company estimates that
operating income has been reduced approximately $7 million to $9 million a
quarter.
Since March 27, 1996, IBM is no longer required to purchase its desktop printers
and typewriters from the company. However, IBM subsequently entered into an
agreement to use its best efforts to buy its printer and typewriter supplies
from the company through March 31, 1999. In addition, since March 27, 1996, IBM
is no longer prohibited from competing with the company's printer business, and
in June 1996, IBM introduced laser printer products that compete with the
company's products.
Although the company and IBM have entered into agreements providing for an
ongoing relationship, the company expects that future revenue and profit
received from IBM will decline significantly and that such decline could have a
material adverse effect on the company. However, the company anticipated the
expiration of these agreements and has redeployed the resources previously
utilized on the declining keyboard and other businesses associated with the
majority of the IBM agreements to the company's strategically important
businesses.
Large Customers
No customer other than IBM has accounted for more than 10% of the company's
consolidated revenues since 1995.
Backlog
The company generally ships its products within 30 days of receiving orders and
therefore has a backlog of generally less than 30 days at any time, which
backlog the company does not consider material to its business.
Employees
As of December 31, 1997, the company had approximately 8,000 employees worldwide
of which 5,500 are located in the U.S. and the remaining 2,500 in Europe,
Canada, Latin America and Asia Pacific. None of the U.S. employees are
represented by any union. Employees in France, Germany and the Netherlands are
represented by Statutory Works Councils. Substantially all regular employees
have stock options. The company's employees have been organized in employee
teams that are able to make rapid decisions and to implement those decisions to
achieve faster development and manufacturing cycle times.
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<PAGE>
Intellectual Property
The company's intellectual property is one of its major assets and the ownership
of the technology used in its products is important to its competitive position.
The company has about 120 patent cross-license agreements of various types with
various third parties. These license agreements include agreements with, for
example, Canon and HP. Most of these license agreements provide cross-licenses
to patents arising from patent applications first filed by the parties to the
agreements before certain dates in the early 1990s, with the date varying from
agreement to agreement. Each of the IBM, Canon and HP cross-licenses grants
worldwide, royalty-free, non-exclusive rights to the company to use the covered
patents to manufacture certain of its products. Certain of the company's
material license agreements, including those that permit the company to
manufacture its current design of laser and inkjet printers and after-market
laser cartridges for certain OEM printers, terminate as to future products upon
certain "changes of control" of the company. The company also holds a number of
specific patent licenses obtained from third parties to permit the production of
particular features in products.
The company holds approximately 1,350 patents worldwide and has approximately
900 pending patent applications worldwide covering a range of subject matter.
The company has filed over 1,000 worldwide patent applications since its
inception in 1991. The company's patent strategy includes obtaining patents on
key features of new products which it develops and patenting a range of
inventions contained in new supply products such as toner and ink cartridges for
printers. Where appropriate, the company seeks patents on inventions flowing
from its general research and development activities. While no single patent or
series of patents is material to the company, the company's patent portfolio in
the aggregate serves to protect its product lines and offers the possibility of
entering into license agreements with others.
The company designs its products to avoid infringing the intellectual property
rights of others. The company's major competitors, such as HP and Canon, have
extensive, ongoing worldwide patenting programs. As is typical in technology
industries, disputes arise from time to time about whether the company's
products infringe the patents or other intellectual property rights of major
competitors and others. As the company competes more successfully with its
larger competitors, more frequent claims of infringement may be asserted.
In October 1996, Lexmark International entered into an agreement with HP to
cross-license each other's patents filed prior to a specified date (the "HP
Agreement"). The HP Agreement generally gives both parties a worldwide
non-exclusive license under the licensed patents for the manufacture and sale of
printers, as well as accessories and consumable supplies designed for use with
each party's own printers. In addition, the HP Agreement resolves issues of
patent infringement that had been raised by both companies and does not involve
any royalty or other payment by either party. The HP Agreement generally permits
licenses granted thereunder to be terminated in the event of a "change of
control," which includes, in very limited circumstances, an acquisition of
substantially less than 50% of the LIG's or Lexmark International's voting
shares.
The company has trademark registrations or pending trademark applications for
the name LEXMARK in approximately 70 countries for various categories of goods.
The company also owns a number of trademark applications and registrations for
product names, such as the OPTRA laser printer name. Although the company
believes the LEXMARK trademark is material to its business, it does not believe
any other trademarks are material.
The company holds worldwide copyrights in computer code, software and
publications of various types.
16
<PAGE>
Environmental and Regulatory Matters
The company's operations, both domestically and internationally, are subject to
numerous laws and regulations, particularly relating to environmental matters
that impose limitations on the discharge of pollutants into the air, water and
soil and establish standards for the treatment, storage and disposal of solid
and hazardous wastes. The company is also required to have permits from a number
of governmental agencies in order to conduct various aspects of its business.
Compliance with these laws and regulations has not had and is not expected to
have a material effect on the capital expenditures, earnings or competitive
position of the company. There can be no assurance, however, that future changes
in environmental laws or regulations, or in the criteria required to obtain or
maintain necessary permits, will not have an adverse effect on the company's
operations.
Item 2. Properties
The company's manufacturing and other material operations are conducted at the
facilities set forth below:
Location Square Feet Activities Status
-------- ----------- ---------- ------
Lexington, KY 2,966,000 Headquarters, Manufacturing,
Development, Administrative,
Distribution, Warehouse,
Marketing Owned
266,000 Warehouses, Development Leased(1)
Boulder, CO 332,000 Manufacturing, Development,
Warehouse Leased(2)
Dietzenbach, Germany 49,000 Administrative, Warehouse Leased(3)
Juarez, Mexico 95,000 Manufacturing, Administrative Owned
Markham, Ontario 31,000 Administrative, Marketing,
Warehouse Leased(4)
Orleans, France 452,000 Manufacturing, Administrative,
Warehouse Owned
Ormes, France 192,000 Warehouse Leased(5)
Paris, France 48,000 Administrative, Marketing Leased(6)
Rosyth, Scotland 92,000 Manufacturing, Administrative Owned
Sydney, Australia 64,000 Manufacturing, Administrative,
Warehouse, Marketing Leased(7)
- --------------------------------------------------
(1) Leases covering 151,000 square feet expire September 1998 and carry one-year
renewal options. Lease covering 115,000 square feet expires August 1998 and
carries five three-year renewal options.
(2) Lease covering 278,000 square feet expires May 2001 and carries three five-
year renewal options. Lease covering 54,000 square feet expires December
1998 and carries two one-year renewal options.
(3) Leases covering this property expire September 2004 and there are no renewal
options.
(4) Lease covering this property expires September 2001 and carries
two five-year renewal options.
(5) Lease covering this property expires
February 1999 and carries one three-year renewal option.
(6) Leases covering
this property expire December 2006 and there are no renewal options.
(7) Lease covering this property expires March 2002 and carries one six-year
renewal option.
The company believes its facilities are in good operating condition.
17
<PAGE>
Item 3. Legal Proceedings
The company is party to various litigation and other legal matters that are
being handled in the ordinary course of business. The company does not believe
that any legal proceedings to which it is a party or to which any of its
property is subject will have a material adverse effect on the company's
financial position or results of operations. As the company competes more
successfully with its larger competitors, the company's increased market
presence may attract more frequent legal challenges from its competitors,
including claims of possible intellectual property infringement. Although the
company does not believe that the outcome of any current claims of intellectual
property infringement is likely to have a material adverse effect on the
company's future operating results and financial condition, there can be no
assurance that such claims will not result in litigation. In addition, there can
be no assurance that any litigation that may result from the current claims or
any future claims by these parties or others would not have a material adverse
effect on the company's business.
Item 4. Submission of Matters to a Vote of Security Holders
None
18
<PAGE>
Part II
Item 5. Market For Registrant's Common Equity and Related Stockholder Matters
Lexmark International Group's Class A common stock is traded on the New York
Stock Exchange under the symbol LXK. As of February 28, 1998, there were
approximately 1,207 holders of record of the Class A common stock and there were
no holders of record of the Class B common stock. Information regarding the
market prices of the company's Class A common stock appears in Part II, Item 8,
Notes to Consolidated Financial Statements, Note 19.
Other than the dividend to stockholders of record on April 3, 1998 of one right
to purchase under certain circumstances one one-hundredth of a share of Series A
Junior Participating preferred stock, the company has never declared or paid any
cash dividends on the Class A common stock and has no current plans to pay cash
dividends on the Class A common stock. The payment of any future cash dividends
will be determined by the company's Board of Directors in light of conditions
then existing, including the company's earnings, financial condition and capital
requirements, restrictions in financing agreements, business conditions, certain
corporate law requirements and other factors.
The company is a holding company and thus its ability to pay cash dividends on
the Class A common stock depends on the company's subsidiaries' ability to pay
cash dividends to the company.
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<PAGE>
Item 6. Selected Financial Data
The table below summarizes recent financial information for the company. For
further information, refer to the company's financial statements and notes
thereto presented under Part II, Item 8 of this Form 10-K.
(Dollars in Millions, Except Share Data)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
Statement of Earnings Data:
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues $2,493.5 $2,377.6 $2,157.8 $1,852.3 $1,675.7
Cost of revenues 1,623.5 1,630.2 1,487.9 1,298.8 1,107.4
- -----------------------------------------------------------------------------------------------------------------
Gross profit 870.0 747.4 669.9 553.5 568.3
Research and development 128.9 123.9 116.1 101.0 111.7
Selling, general and administrative 466.5 388.0 359.1 292.9 322.0
Option compensation related to IPO (1) - - 60.6 - -
Amortization of intangibles (2) - 5.1 25.6 44.7 64.0
- -----------------------------------------------------------------------------------------------------------------
Operating income 274.6 230.4 108.5 114.9 70.6
Interest expense 10.8 20.9 35.1 50.6 63.9
Amortization of deferred financing costs
and other 9.1 7.9 10.1 13.6 13.1
- -----------------------------------------------------------------------------------------------------------------
Earnings (loss) before income taxes 254.7 201.6 63.3 50.7 (6.4)
Provision for income taxes 91.7 73.8 15.2 6.1 3.0
- -----------------------------------------------------------------------------------------------------------------
Earnings (loss) before extraordinary item 163.0 127.8 48.1 44.6 (9.4)
Extraordinary loss (14.0) - (15.7) - -
(3)
- -----------------------------------------------------------------------------------------------------------------
Net earnings (loss) $ 149.0 $ 127.8 $ 32.4 $ 44.6 $ (9.4)
Diluted earnings (loss) per common share
before extraordinary item (4) (11) $ 2.17 $ 1.69 $ 0.65 $ (0.46) $ (0.34)
Diluted net earnings (loss) per common
share (4) (11) $ 1.98 $ 1.69 $ 0.44 $ (0.46) $ (0.34)
Shares used in per share calculation 75,168,776 75,665,734 74,200,279 61,430,896 61,458,241
Statement of Financial Position Data:
- -----------------------------------------------------------------------------------------------------------------
Working capital $ 228.6 $ 343.8 $ 227.7 $ 237.5 $ 293.6
Total assets 1,208.2 1,221.5 1,142.9 960.9 1,215.0
Total long-term debt (including current
portion) 75.0 165.3 195.0 290.0 650.7
Redeemable senior preferred stock (5) - - - - 85.0
Stockholders' equity (5) 500.7 540.3 390.2 295.5 173.7
Other Key Data:
- -----------------------------------------------------------------------------------------------------------------
Operating income before amortization and
unusual item (6) $ 274.6 $ 235.5 $ 194.7 $ 159.6 $ 134.6
Diluted earnings (loss) per share before
unusual items (7) (11) $ 2.17 $ 1.69 $ 1.17 $ 0.51 $ (0.34)
Cash from operations (8) 274.9 118.0 307.5 361.9 176.4
Capital expenditures 69.5 145.0 106.8 58.1 62.4
Debt to total capital ratio 13% 23% 33% 50% 72%
Return on average equity before unusual
items (9) 30% 27% 25% 21% (6%)
Number of employees (10) 7,985 6,573 7,477 5,934 5,885
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The company recognized a non-cash compensation charge of $60.6 million
($38.5 million net of tax benefit) in the fourth quarter of 1995 for
certain of the company's outstanding employee stock options upon the
consummation of the initial public offerings.
(2) Acquisition-related intangibles were fully amortized by March 31, 1996.
(3) In 1997, represents extraordinary after-tax loss caused by the early
extinguishment of the Company's senior subordinated notes and in 1995,
represents extraordinary after-tax loss caused by an early extinguishment
of debt related to the refinancing of the company's term loan.
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<PAGE>
(4) Earnings (loss) per common share are net of dividends of $11.8 million and
$11.5 million paid on the company's redeemable senior preferred stock in
1994 and 1993. Earnings attributable to common stock in 1994 are also net
of a $61.3 million preferred stock redemption premium related to the
exchange of redeemable senior preferred stock for Class A common stock
on December 30, 1994.
(5) Redeemable senior preferred stock with a liquidation preference of $85.0
million was exchanged for 9,750,000 shares of Class A common stock on
December 30, 1994.
(6) Unusual item in 1995 reflects the non-cash compensation charge discussed
in (1) above.
(7) Unusual item in 1997 represents the extraordinary after-tax loss discussed
in (3) above. Unusual items in 1995 includes the non-cash compensation
charge discussed in (1) above and the extraordinary after-tax loss
discussed in (3) above. The unusual item in 1994 represents the preferred
stock redemption premium discussed in (4) above.
(8) Cash flows from investing and financing activities, which are not
presented, are integral components of total cash flow activity.
(9) Unusual item in 1997 represents the extraordinary loss discussed in (3)
above. Unusual items in 1995 includes the non-cash compensation charge
discussed in (1) above and the extraordinary after-tax loss discussed in
(3) above.
(10) Represent the number of full-time equivalent employees at December 31st of
each year.
(11) Earnings per share amounts have been calculated and presented under the
provisions of SFAS No. 128.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following discussion and analysis should be read in conjunction with the
consolidated financial statements and notes thereto.
OVERVIEW
Lexmark International Group, Inc. (together with its subsidiaries, the "company"
or "Lexmark") is a global developer, manufacturer and supplier of laser and
inkjet printers and associated consumable supplies. The company also sells dot
matrix printers for printing single and multi-part forms by business users. The
company's core printer business targets the office and home markets. In addition
to its core printer business, Lexmark develops, manufactures and markets a broad
line of other office imaging products which include supplies for International
Business Machines Corporation ("IBM") branded printers, after-market supplies
for other original equipment manufacturer ("OEM") products, and typewriters and
typewriter supplies that are sold under the IBM trademark. The company's
"keyboard and other" product category was phased out by the end of the first
quarter of 1996.
In the past few years, the worldwide printer industry has seen substantial
growth in demand for laser and inkjet printers as a result of increasing
penetration of personal computers into the office and home markets. During this
period, the company's own product mix has evolved, with its laser and inkjet
printers and associated supplies representing an increasingly larger percentage
of its sales volume and revenues, particularly as the increasing base of
installed Lexmark printers generates additional revenues from recurring sales of
supplies for those printers (primarily laser and inkjet cartridges). In 1997,
revenues from the sale of printers and associated printer supplies increased 10%
from 1996 and accounted for 81% of total company revenues of approximately $2.5
billion. Most of this growth was derived from increasing sales of laser and
inkjet printers and printer cartridge supplies, offset in part by slowing demand
for dot matrix printers which depend on older impact-printing technology and
declines in the traditional IBM branded supplies business.
Lexmark believes that its total revenues will continue to grow due to overall
market growth and increases in the company's market share in both the network
and color inkjet printer categories. Management believes that this growth will
more than offset reduced demand for dot matrix impact printers which depend on
older impact-printing technology and declines in the traditional IBM branded
supplies business.
In recent years, the company's growth rate in sales of printer units generally
exceeded the growth rate of its printer revenues due to price pressures and the
introduction of new lower priced products in both the laser and inkjet printer
markets. In the laser printer market, unit price pressure is partially offset by
the tendency of
21
<PAGE>
customers to move up to higher priced printer models with faster speeds, greater
network connectivity and other new features. In the inkjet printer market,
advances in color inkjet technology have resulted in lower prices for printers
with sharper resolution and improved performance. The greater affordability of
color inkjet printers has been an important factor in the recent growth of this
market.
The company's other office imaging products category includes many mature
products such as supplies for IBM printers, typewriters and typewriter supplies
and other impact supplies that require little investment but provide a
significant source of cash flow. The company expects that the market for these
products and the profitability from the sale of these products will continue to
decline, but the company will attempt to mitigate these declines through the
introduction of new supplies for non-impact technologies, such as after-market
laser cartridges. Lexmark introduced its first after-market laser cartridges in
May 1995 for the large installed base of a range of laser printers sold by other
manufacturers. The company's strategy for other office imaging products is to
pursue the after-market OEM laser supplies opportunity while managing its mature
businesses for cash flow.
The company expects that its overall margins will remain relatively stable as
its associated printer supplies business becomes an increasingly larger part of
its business, offsetting the decline in the company's other office imaging
products supplies business. Although the company expects continuing declines in
printer prices, it expects to reduce costs in line with price decreases.
The company's operations have been significantly impacted by a number of key
agreements with IBM which were negotiated as part of the acquisition of
Information Products Corporation from IBM in March 1991. In general, these
agreements expired on March 27, 1996. Although the company and IBM have entered
into a number of new agreements, which extend some of the original agreements
(although on less favorable terms) and provide for an ongoing relationship in
other areas, management expects that future revenue and profit attributable to
sales to IBM will continue to decline.
In February 1997, the public offering of 10,148,100 shares of the company's
Class A common stock by certain of its stockholders was completed at a public
offering price of $24.875 per share. In November 1997, the public offering of
10,145,000 shares of the company's Class A common stock by certain of its
stockholders was completed at a public offering price of $31.00 per share. The
company and current members of management chose not to sell any shares in either
offering and, therefore, did not receive any of the proceeds from the sale of
the shares.
In November 1997, the company repurchased an additional 3 million shares (the
"Repurchase Shares") from certain of the stockholders participating in the
November 1997 offering at a price of $29.90 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 $90 million. See
"Liquidity and Capital Resources".
In January 1998, the company entered into a new $300 million unsecured,
revolving credit facility with a group of banks. Upon entering the new
agreement, the company repaid the amounts outstanding on its existing term loan
and revolving credit facility.
RESULTS OF OPERATIONS
1997 compared to 1996
Consolidated revenues in 1997 were $2,494 million, an increase of 5% over 1996.
Revenues were adversely affected by foreign currency exchange rates due to the
strengthening of the U.S. dollar. Without the currency
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effect, year-to-year revenue growth would have been 10%. Printers and associated
supplies revenues were $2,017 million, an increase of 10%, and revenues from
other office imaging products were $477 million, a decrease of 7%. Excluding the
keyboard business in 1996, revenues for 1997 were up $149 million or 6% from
1996. Total U.S. revenues were up slightly and international revenues were up
$115 million or 11%.
[GRAPH APPEARS HERE]
. REVENUES
... printers and associated supplies represen an increasingly larger
proportion of company's operations
in percent
1994 1995 1996 1997
---- ---- ---- ----
Printers and associated supplies 58.5% 68.5% 77.0% 80.9%
Other 41.5 31.5 23.0 19.1
The company's results were primarily driven by printers and associated supplies.
The company introduced the Optra S family of monochrome and color laser printers
in May 1997, and also made inkjet product announcements in the second and third
quarters of 1997, with the introduction of the 1000, 3000 and 7000 Color
Jetprinters, along with the 7200 series of Color Jetprinters. Even though the
product line was in transition, printer volumes grew at double-digit rates and
printer supplies revenues increased during 1997 as compared to 1996 due
primarily to the continued growth of the company's installed printer base.
The color inkjet market, the fastest growing segment of the personal printer
market (printers in the 1-10 pages per minute ("ppm") category), expanded
rapidly due to growth in personal computers and home offices, and the
development of easy-to-use color inkjet technology with good quality color print
capability at low prices. Lexmark introduced its first color inkjet printer
using its own technology in 1994 and experienced strong sales growth through
retail outlets. The company increased its product distribution through retail
outlets, with the number of such outlets worldwide rising from approximately
5,000 retail outlets in 1995 to more than 15,000 in 1996, and remaining
relatively constant during 1997. The company's ability to increase or maintain
its presence in the retail marketplace with its branded products may be
adversely affected as the company becomes more successful in its sales and
marketing efforts for OEM opportunities. The company made substantial capital
investments in its inkjet production capacity in 1995 and 1996 to address the
growing demand for its color inkjet printers.
With its Optra S laser printers, a majority of the company's laser printers are
office desktop printers (laser printers that print at speeds of 11-30 ppm),
which the company believes is one of the fastest growing segments of the laser
printer market. Office desktop laser printer growth is being driven by the
office migration from large mainframe computers to local area networks that link
various types of computers using a variety of protocols and operating systems.
The company's installed base of printers supports a large and profitable printer
supplies business. Because consumable supplies must be replaced on average one
to three times a year, depending on type of printer and usage, demand for laser
and inkjet print cartridges is increasing at a higher rate than printer
shipments. The company expects this recurring and relatively high margin
business to contribute to the stability of the company's earnings over time.
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<PAGE>
Consolidated gross profit was $870 million for 1997, an increase of 16% from
1996. This was mainly driven by improved printer margins and a richer mix of
supplies versus printer hardware. Gross profit as a percentage of revenues for
1997 increased to 34.9% from 31.4% in 1996. Gross profit attributable to
printers and associated supplies increased 24%, principally due to reductions in
product costs and growth in higher margin associated consumable supplies.
Total operating expenses increased 15% for 1997 compared to 1996. Expenses as a
percentage of revenues were 23.9% in 1997 compared to 21.5% (excluding the
amortization of intangibles) in 1996. These increases versus 1996 principally
reflect planned increases in marketing and sales expenses to launch new products
and provide continuing support for Lexmark's products in the marketplace.
Consolidated operating income was $275 million for 1997, an increase of 19% over
1996. This increase was due principally to product cost reductions, growth in
associated consumable supplies and the absence of amortization of intangibles,
which were fully amortized in the first quarter of 1996.
[GRAPH APPEARS HERE]
. OPERATING INCOME BEFORE AMORTIZATION
dollars in millions
1994 1995 1996 1997
---- ---- ---- ----
After unusual item $159.6 $134.1 $235.5 $274.6
Before unusual item 159.6 194.7 235.5 274.6
The following table sets forth the percentage of total revenues represented by
certain items reflected in the company's statements of earnings.
1997 1996 1995 1994
- ---------------------------------------------------------------------------
Revenues 100% 100% 100% 100%
Cost of revenues 65 69 69 70
- ---------------------------------------------------------------------------
Gross profit 35 31 31 30
Research and development 5 5 5 6
Selling, general & administrative 19 16 17 16
Option compensation related to IPO - - 3 -
Amortization of intangibles - - 1 2
- ---------------------------------------------------------------------------
Operating income 11% 10% 5% 6%
- ---------------------------------------------------------------------------
Earnings before income taxes and extraordinary item were $255 million, an
increase of 26% over 1996, principally due to the operating performance and
lower interest expense resulting from lower debt levels and lower interest
rates.
Earnings before extraordinary item were $163 million, an increase of 28% over
1996. The income tax provision was 36% of earnings before tax in 1997 as
compared to approximately 37% in 1996.
Net earnings were $149 million, up 17% over 1996 net earnings. Net earnings for
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 in the first quarter of
1997.
24
<PAGE>
Basic net earnings per share were $2.09 for 1997, or $2.29 before extraordinary
item, compared to $1.78 in 1996, an increase of 17% and 28%, respectively.
Diluted net earnings per share were $1.98 in 1997, or $2.17 before extraordinary
item, compared to $1.69 in 1996, an increase of 17% and 28%, respectively.
[GRAPH APPEARS HERE]
. IMPACT OF UNUSUAL ITEMS
in dollars
1994 1995 1996 1997
---- ---- ---- ----
Diluted net earnings per share
after unusual items $(0.46) $0.44 $1.69 $1.98
Diluted net earnings per share
before unusual items 0.51 1.17 1.69 2.17
1996 compared to 1995
Consolidated revenues in 1996 were $2,378 million, an increase of 10% over 1995.
Printers and associated supplies revenues were $1,832 million, an increase of
24%, and revenues from other office imaging products were $513 million, an
increase of 2%. The transition out of the keyboard business was completed in
March 1996 and, excluding this business, revenues were up $365 million or 18%.
Total U.S. revenues increased $10 million or 1%, and excluding the keyboard
business, were up 14%. International revenues were up $210 million or 24%.
The increase in consolidated revenues was principally due to growth in the core
printer and associated supplies business. Hardware volumes have shown
significant growth in the sales of inkjet printers while printer supplies
revenues increased due to the continued growth of the company's installed
printer base. These revenue increases more than offset price reductions on
certain printers. Foreign currency translation effects were slightly unfavorable
for 1996 compared to 1995.
Revenues from other office imaging products increased primarily due to the
growth of the after-market laser cartridge business which more than offset the
declines in the traditional IBM branded supplies business.
The company increased its product distribution through retail outlets, with the
number of such outlets worldwide rising from approximately 5,000 retail outlets
in 1995 to more than 15,000 in 1996. The company has made substantial capital
investments in its inkjet production capacity in 1995 and 1996 to address the
growing demand for its color inkjet products.
Consolidated gross profit was $747 million for 1996, an increase of 12% from
1995, principally due to increased printer and associated supplies volumes,
lower costs through better cost management, the absence of the lower-margin
keyboard business in 1996 and more favorable product sales mix. Gross profit as
a percentage of revenues was 31.4% in 1996, slightly better than 31.0% in 1995.
Gross profit attributable to printers and associated supplies increased 25%,
principally due to higher revenues and the mix of these revenues. Gross profit
margin held steady as competitive price pressures on printers were offset by
lower costs and growth in the higher margin associated consumable supplies.
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<PAGE>
Total operating expenses decreased 8% for 1996 compared to 1995. In 1995,
operating expenses included a non-cash option compensation charge of $61 million
($39 million net of tax benefit) recognized for certain of the company's
outstanding employee stock options upon the consummation of the initial public
offering in November 1995. Operating expense comparisons were also affected by
amortization of intangible assets, which were fully amortized by March 1996.
Excluding the 1995 non-cash option compensation charge and the amortization of
intangibles, operating expenses as a percentage of revenues were 21.5% in 1996
versus 22.0% in 1995.
Consolidated operating income was $230 million for 1996, an increase of 112%
over 1995. Excluding the non-cash option compensation charge and the
amortization of intangibles, consolidated operating income was up 21%. This
increase was due to stronger 1996 sales volumes and cost and expense controls.
Earnings before income taxes and extraordinary item were $202 million, up 218%
over 1995 and up 63% before the non-cash option compensation charge, principally
due to the stronger operating performance and lower interest expense as a result
of lower debt levels and lower interest rates.
The income tax provision was approximately 37% of earnings before tax for 1996
as compared to 24% in 1995. The effective tax rate for 1995 was favorably
impacted by research and development tax credits and the benefit of a foreign
sales corporation.
Net earnings were $128 million, up 294%, and up 166% over earnings before
extraordinary item in 1995. Excluding the non-cash option compensation charge,
earnings before extraordinary item were up 48% to $128 million, up from $87
million in 1995. Net earnings per share were $1.69 for 1996, compared to $0.44,
or $0.65 before extraordinary item in 1995, an increase of 287% and 161%,
respectively.
LIQUIDITY AND CAPITAL RESOURCES
Lexmark's primary source of liquidity has been cash generated by operations,
which totaled $275 million, $118 million and $307 million in 1997, 1996 and
1995, respectively. Cash from operations has been sufficient to allow the
company to repay significant amounts of debt, fund the company's working capital
needs and finance its capital expenditures during these periods along with the
repurchase of $182 million of its Class A common stock during 1997.
The increase in cash provided by operating activities for 1997 was principally
due to stronger earnings before extraordinary loss, the increase in amounts
outstanding under the trade accounts receivable programs, the increase of net
deferred tax liabilities and favorable changes in working capital accounts. The
decrease in cash provided by operating activities for 1996 primarily reflects
higher working capital requirements in support of sales growth. Trade
receivables were up principally due to higher revenues while accounts payable
and accrued liabilities were down primarily due to the timing of payments. The
1996 cash from operations was reduced by $21 million due to lower trade
receivables outstanding under the trade receivables financing programs than in
1995. Cash from operations was favorably impacted by $25 million due to
effective management of inventory levels. Cash from operations in 1995 was
unusually high. Cash from operations for 1995 was favorably impacted by $30
million due to increased sales of trade receivables in an accounts receivable
financing program and increases in accounts payable and accrued liabilities of
$148 million, primarily due to the timing of payments.
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<PAGE>
Cash flows from operations in 1998 may be less than in 1997 due primarily to
higher working capital requirements in support of sales growth and higher
capital expenditures to support continued new product introductions. Increased
cash flow from earnings is expected to partially offset this decrease.
At December 31, 1997, the company's term loan had a balance of $37 million and
the company had $20 million outstanding under its revolving credit facility. The
revolving credit facility and term loan at December 31, 1997 were classified as
long-term, as the company had the intent and ability, supported by the terms of
the new revolving credit facility mentioned below, to obtain long-term
financing. In January 1998, the company entered into a new $300 million
unsecured, revolving credit facility with a group of banks. Upon entering the
agreement, the company repaid the amounts outstanding on its existing term loan
and revolving credit facility. The interest rate on the new credit facility
ranges from 0.2% to 0.7% above the London Interbank Offered Rate ("LIBOR"), as
adjusted under certain limited circumstances, based upon the company's debt
rating, if available, or based upon certain performance ratios. Any amounts
outstanding under the new revolving credit facility are due upon the maturity of
the facility on January 27, 2003. The new revolving credit facility is available
for general corporate purposes, including acquisitions and share repurchases,
and is expected to be sufficient to meet the company's working capital and
capital expenditure requirements. See "Capital Expenditures".
[GRAPH APPEARS HERE]
. CAPITAL STRUCTURE
in percent
1994 1995 1996 1997
---- ---- ---- ----
Equity 50.5% 66.7% 76.6% 87.0%
Debt 49.5 33.3 23.4 13.0
As of December 31, 1997, the company had short-term debt outstanding of $18
million.
In March 1997, the company prepaid its $120 million 14.25% senior subordinated
notes due in 2001. The prepayment resulted in an extraordinary charge of $22
million ($14 million net of tax benefit) caused by a prepayment premium and
other fees. Senior notes in the principal amount of $20 million were redeemed in
March 1996.
In March 1997, the company entered into three-year interest rate swaps with a
total notional amount of $60 million, whereby the company pays interest at a
fixed rate of approximately 6.5% and receives interest at a floating rate equal
to the three-month LIBOR. The swaps serve as a hedge of financings based on
floating interest rates.
Through its hedging programs, the company attempts to insulate a portion of its
foreign denominated cash flows from the impact of exchange rate fluctuations.
The company utilizes interest rate/currency swaps and has utilized interest rate
caps to reduce its interest rate risks. Interest expense incurred in connection
with these instruments amounted to $1 million, $1 million and $8 million in
1997, 1996 and 1995, respectively.
At December 31, 1997, substantially all tangible and intangible assets of the
company (including shares of capital stock of the company's subsidiaries) served
as collateral for the term loan and revolving credit facility. This credit
agreement contained customary covenant restrictions with which the company was
in compliance as of December 31, 1997. The new revolving credit facility that
the company entered into in January 1998, is an unsecured credit facility which
also contains customary default provisions, leverage and interest coverage
27
<PAGE>
restrictions and certain restrictions on the incurrence of additional debt,
liens, mergers or consolidations and investments.
The company is party to an agreement to sell, on a limited recourse basis, up to
$100 million of its U.S. trade receivables under a revolving arrangement.
Proceeds from any such sales are available for general corporate purposes. At
December 31, 1997, trade receivables of $100 million were outstanding under this
program and, as collections reduce previously sold receivables, the company may
replenish these with new receivables. The agreement, which contains net worth
and fixed charge coverage restrictions, must be renewed annually and is expected
to be renewed upon its expiration in April 1998. This arrangement provides the
company with lower cost funding than is currently available under its revolving
credit facility.
The company is also a party to an agreement to sell up to 22 million deutsche
marks of Germany trade receivables on a limited recourse basis. At December 31,
1997, 22 million deutsche marks of receivables (approximately $12 million at
December 31, 1997 exchange rates) were outstanding under this program and, as
collections reduce previously sold receivables, the company may replenish these
with new receivables.
In April 1996, the company's board of directors authorized the repurchase of up
to $50 million of its Class A common stock. In May 1997, the company's board of
directors authorized the repurchase of an additional $150 million of its Class A
common stock. As of December 31, 1997, the company had repurchased 6,438,114
shares at prices ranging from $21.25 to $33.75 per share for an aggregate cost
of approximately $182 million, including the Repurchase Shares mentioned
earlier. In February 1998, the company's board of directors authorized the
repurchase of up to an additional $200 million of its Class A common stock. This
repurchase authority, like the prior authorizations, allows the company at
management's discretion to selectively repurchase its stock from time to time in
the open market or in privately negotiated transactions depending upon market
price and other factors.
In October 1995, 50,000 shares of junior preferred stock owned by the company's
savings plan were exchanged for 750,000 shares of Class A common stock. The
junior preferred stock was then retired.
CAPITAL EXPENDITURES
Capital expenditures totaled $70 million, $145 million and $107 million in 1997,
1996 and 1995, respectively. The 1997 expenditures were mostly made in support
of new products. Both 1996 and 1995 expenditures were higher due to expansion of
the inkjet printer products manufacturing capacity, which included the
conversion of a Lexington facility and the establishment of facilities in Mexico
and Scotland to manufacture inkjet cartridges. Looking forward to 1998, the
company expects capital expenditures to be between $90 and $100 million and to
be funded primarily through cash from operations.
EFFECT OF CURRENCY EXCHANGE RATES AND EXCHANGE RATE RISK MANAGEMENT
Revenues derived from international operations, including exports from the
United States, make up over half of the company's consolidated revenues, with
European revenues accounting for about 69% of international revenues.
Substantially all foreign subsidiaries maintain their accounting records in
their local currencies. Consequently, period-to-period comparability of results
of operations is affected by fluctuations in exchange rates. While currency
translation has significantly affected international revenues and cost of
revenues, it did not have a material impact on operating income for the years
1995 - 1997. The company attempts to reduce its
28
<PAGE>
exposure to exchange rate fluctuations through the use of operational hedges,
such as pricing actions and product sourcing decisions.
[GRAPH APPEARS HERE]
. REVENUES BY GEOGRAPHIC AREA*
dollars in millions
1994 1995 1996 1997
---- ---- ---- ----
U.S $1,023 $1,112 $1,100 $1,110
Europe 615 791 896 951
Other Intl. 214 255 382 433
*International revenues include exports from the U.S.
The company's exposure to exchange rate fluctuations generally cannot be
minimized solely through the use of operational hedges. Therefore, the company
utilizes financial instruments such as forward exchange contracts and currency
options to reduce the impact of exchange rate fluctuations on firm and
anticipated cash flow exposures and certain assets and liabilities which arise
from transactions denominated in currencies other than the functional currency.
The company does not purchase currency related financial instruments for
purposes other than exchange rate risk management.
The company believes that international operations in new geographic markets
will be less profitable than operations in 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. Although the current economic
conditions in some of the Asian geographies may adversely affect the company's
growth in that region, management does not expect the impact will result in the
company's not being able to achieve its 1998 operating income growth objective.
TAX MATTERS
The company's effective tax rate for 1997 was 36%, for 1996 was approximately
37%, and for 1995 was 24%. The effective tax rate in 1995 was favorably impacted
by research and development tax credits and the benefit of a foreign sales
corporation.
As of December 31, 1997, the company had non-U.S. tax loss carryforwards of $53
million, including $20 million which expire between the years 2000 and 2004.
Portions of these non-U.S. tax loss carryforwards (approximately $13 million)
are not expected to provide a future benefit because they are attributable to
income of certain non-U.S. entities that are also taxable in the U.S.
INFLATION
The company is subject to the effects of changing prices. The company operates
in an industry where product prices are very competitive and subject to downward
price pressures. As a result, future increases in production costs or raw
material prices could have an adverse effect on the company's business. However,
the company actively manages its product costs and manufacturing processes in an
effort to minimize the impact on earnings of any such increases.
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<PAGE>
IMPACT OF THE YEAR 2000 ISSUE
The company has conducted a comprehensive review of its computer systems to
identify the systems that could be affected by the Year 2000 Issue and has
developed a comprehensive plan to resolve the issue. The Year 2000 Issue is the
result of computer programs that fail to utilize the full four-digit
representation of a year which would cause date-sensitive software to recognize
a date using "00" as the year 1900 rather than the year 2000. This could result
in a system failure or miscalculation causing disruptions of operations,
including, among other things, a temporary inability to process transactions,
send invoices, or engage in similar normal business activities. The company
plans to complete the Year 2000 Issue Project by December 31, 1998.
Due to the company's major information technology systems operating in a client
server environment, the total cost associated with the required modifications
and conversions is not expected to be material to the company's financial
position or results of operations and is being expensed as incurred.
The company is communicating with its significant suppliers, customers and
others with which it conducts business to help them identify and resolve their
own Year 2000 Issue. If necessary modifications and conversions by the company
and those with which it conducts business are not completed timely, the Year
2000 Issue may have a material adverse effect on the company's results of
operations.
The costs of the project and the date on which the company expects to complete
the Year 2000 Issue modifications are based on management's best estimates,
which were derived utilizing numerous assumptions of future events, including
the continued availability of certain resources, third party modification plans
and other factors. However, there can be no guarantee that these estimates will
be achieved and actual results could differ materially from expectations.
NEW ACCOUNTING STANDARDS
Effective January 1, 1997, the company adopted Statement of Financial Accounting
Standard ("SFAS") No. 125, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities. SFAS No. 125 provides standards for
distinguishing transfers of financial assets that are sales from transfers that
are secured borrowings and addresses programs such as the company's trade
receivables programs in the U.S. and Germany. With the adoption of SFAS No. 125,
the company continues to account for the transfer of receivables under both
programs as sale transactions. In response to SFAS No. 125 for purposes of the
U.S. program, the company formed and sells its receivables to a wholly owned
subsidiary, Lexmark Receivables Corporation ("LRC"), which then sells the
receivables to an unrelated third party. LRC is a separate legal entity with its
own separate creditors who, in a liquidation of LRC, would be entitled to be
satisfied out of LRC's assets prior to any value in LRC becoming available for
equity claims of an LRC stockholder.
In February 1997, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 128, Earnings per Share. Effective December 15, 1997, the company adopted
this statement and has restated all prior period earnings per share ("EPS") data
presented. This statement replaces the presentation of primary EPS and fully
diluted EPS with a presentation of basic EPS and diluted EPS, respectively.
In June 1997, the FASB issued SFAS No. 130, Reporting Comprehensive Income,
effective for fiscal years beginning after December 15, 1997. This statement
requires that all items that are required to be recognized under accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements. This statement does not require a specific
30
<PAGE>
format for that financial statement but requires that an entity display an
amount representing total comprehensive income for the period in that financial
statement. This statement requires that an entity classify items of other
comprehensive income by their nature in a financial statement. For example,
other comprehensive income may include foreign currency items, minimum pension
liability adjustments, and unrealized gains and losses on certain investments in
debt and equity securities. In addition, the accumulated balance of other
comprehensive income must be displayed separately from retained earnings and
additional paid-in capital in the equity section of a statement of financial
position. Reclassification of financial statements for earlier periods, provided
for comparative purposes, is required. Based on current accounting standards,
this new accounting standard is not expected to have a material impact on the
company's financial position, results of operations or liquidity. The company
will adopt this accounting standard on January 1, 1998, as required.
In June 1997, the FASB issued SFAS No. 131, Disclosures about Segments of an
Enterprise and Related Information, effective for fiscal years beginning after
December 15, 1997. This statement establishes standards for reporting
information about operating segments in annual financial statements and requires
selected information about operating segments in interim financial reports
issued to stockholders. It also establishes standards for related disclosures
about products and services, geographic areas and major customers. Operating
segments are defined as components of an enterprise about which separate
financial information is available that is evaluated regularly by the
enterprise's chief operating decision maker in deciding how to allocate
resources and in assessing performance. This statement requires reporting
segment profit or loss, certain specific revenue and expense items and segment
assets. It also requires reconciliations of total segment revenues, total
segment profit or loss, total segment assets, and other amounts disclosed for
segments to corresponding amounts reported in the consolidated financial
statements. Restatement of comparative information for earlier periods presented
is required in the initial year of application. Interim information is not
required until the second year of application, at which time comparative
information is required. This statement's requirements are disclosure oriented
and, therefore, will not have a material impact on the company's financial
position, results of operations or liquidity. The company will adopt this
accounting standard on January 1, 1998, as required.
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, including,
without limitation, (i) statements in this "Management's Discussion and Analysis
of Financial Condition and Results of Operations" concerning (a) the company's
belief that its total revenues will continue to grow due to overall market
growth and increases in the company's market share in both the network and color
inkjet printer categories and that this growth will more than offset reduced
demand in sales of certain of its products, (b) the company's expectation that
printer prices will continue to decline and that it expects to reduce costs in
line with price decreases, (c) the company's expectation that its overall
margins will remain relatively stable as new product introductions contribute to
growth in printer unit volumes and the associated printer supplies business
becomes a larger part of the company's business, offsetting the decline in sales
of certain of the company's other office imaging products, (d) the company's
belief that office desktop printers are one of the fastest growing segments of
the laser printer market, (e) the company's statement that higher working
capital requirements are expected to be partially offset by earnings growth, (f)
the company's expectations with respect to its 1998 capital expenditures, (ii)
the statements in "Item 1. Business -- Market Overview and Strategy -- Printers
and Associated Supplies -- Market Overview" concerning the company's belief
about growth in the printer hardware market, including double-digit growth in
volume of certain product categories such as office desktop laser printers and
color inkjet printers, continued growth in the company's associated printer
supplies business, and the after-market laser cartridge market being a market
with significant growth potential and "-- Environmental and Regulatory Matters"
concerning the company's belief that compliance with all laws and
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<PAGE>
regulations applicable to it is not expected to have a material effect on its
capital expenditures, earnings and competitive position, (iii) the statements in
"Item 3. Legal Proceedings" concerning the company's belief with respect to the
possible effect of certain legal proceedings, and current or future claims of
intellectual property infringement on its financial position or results of
operations, (iv) other statements as to management's expectations and belief
presented in this "Management's Discussion and Analysis of Financial Condition
and Results of Operations", (v) other statements as to management's expectations
and belief presented elsewhere in this Report and (vi) variations in the
foregoing statements whenever they appear in this Report. 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. There are a number of factors that could cause
actual results to differ materially from estimates or expectations reflected in
such forward-looking statements, including, without limitation, the factors set
forth below:
~ The company's future operating results may be adversely affected if it is
unable to continue to develop, manufacture and market products that meet
customers' needs. 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. The
company and its major competitors, all of which have significantly greater
financial, marketing and technological resources than the company, have
regularly lowered prices on their printers and are expected 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 and jeopardize
the company's ability to grow or maintain its market share.
~ The life cycles of the company's products, as well as delays in product
development and manufacturing, variations in the cost of component parts, 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 buildup 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. Moreover, margins on
international sales tend to be lower than those on domestic sales, and the
company believes that international operations in new geographic markets will be
less profitable than operations in the 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.
~ The company's success depends in part on its ability to obtain patents,
copyrights and trademarks, maintain trade secret protection and operate without
infringing the proprietary rights of others. Current or future claims of
intellectual property infringement could prevent the company from obtaining
technology of others and could otherwise adversely affect its operating results,
cash flows, financial position or business, as could expenses incurred by the
company in enforcing its intellectual property rights against others.
32
<PAGE>
~ Part of the company's business strategy is to expand its business through the
acquisition of related businesses. There can be no assurance that suitable
acquisitions can be accomplished on terms favorable to the company. Further,
there can be no assurance that the company will be able to operate profitably
any businesses or other assets it may acquire, effectively integrate the
operations of such acquisitions or otherwise achieve the intended benefits of
such acquisitions.
~ Factors unrelated to the company's operating performance, including 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; and the ability to retain and attract key personnel, could
also adversely affect the company's operating results. In addition, trading
activity in the company's common stock, particularly in light of the substantial
number of shares owned by the original investor group that are available for
resale, may affect the company's common stock price.
While the company reassesses material trends and uncertainties affecting the
company's financial condition and results of operations in connection with its
preparation of its quarterly and annual reports, the company does not intend to
review or revise, in light of future events, any particular forward-looking
statement contained in this Report.
The information referred to above should be considered by investors when
reviewing any forward-looking statements contained in this Report, in any of the
company's public filings or press releases or in any oral statements made by the
company or any of its officers or other persons acting on its behalf. The
important factors that could affect forward-looking statements are subject to
change, and the company does not intend to update the foregoing list of certain
important factors. By means of this cautionary note, the company intends to
avail itself of the safe harbor from liability with respect to forward-looking
statements that is provided by Section 27A and Section 21E referred to above.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Not applicable
33
<PAGE>
Item 8. Financial Statements and Supplementary Data
Lexmark International Group, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF EARNINGS
For the years ended December 31, 1997, 1996 and 1995
(Dollars in Millions, Except Per Share Amounts)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Revenues $2,493.5 $2,377.6 $2,157.8
Cost of revenues 1,623.5 1,630.2 1,487.9
- --------------------------------------------------------------------------------
Gross profit 870.0 747.4 669.9
Research and development 128.9 123.9 116.1
Selling, general and administrative 466.5 388.0 359.1
Option compensation related to IPO - - 60.6
Amortization of intangibles - 5.1 25.6
- --------------------------------------------------------------------------------
Operating expenses 595.4 517.0 561.4
- --------------------------------------------------------------------------------
Operating income 274.6 230.4 108.5
Interest expense 10.8 20.9 35.1
Amortization of deferred financing
costs and other 9.1 7.9 10.1
- --------------------------------------------------------------------------------
Earnings before income taxes
and extraordinary item 254.7 201.6 63.3
Provision for income taxes 91.7 73.8 15.2
- --------------------------------------------------------------------------------
Earnings before extraordinary
item 163.0 127.8 48.1
Extraordinary loss on extinguishment of
debt
(net of related tax benefit of $8.4
in 1997 and $6.4 in 1995) (14.0) - (15.7)
- --------------------------------------------------------------------------------
Net earnings $ 149.0 $ 127.8 $ 32.4
Basic earnings per share:
Before extraordinary item $ 2.29 $ 1.78 $ 0.70
Extraordinary loss (0.20) - (0.23)
- --------------------------------------------------------------------------------
Net earnings per share $ 2.09 $ 1.78 $ 0.47
Diluted earnings per share:
Before extraordinary item $ 2.17 $ 1.69 $ 0.65
Extraordinary loss (0.19) - (0.21)
- --------------------------------------------------------------------------------
Net earnings per share $ 1.98 $ 1.69 $ 0.44
Shares used in per share calculation:
Basic 71,314,311 71,629,572 68,859,900
Diluted 75,168,776 75,665,734 74,200,279
</TABLE>
- --------------------------------------------------------------------------------
See notes to consolidated financial statements.
34
<PAGE>
Lexmark International Group, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
As of December 31, 1997 and 1996
(Dollars in Millions, Except Share Amounts)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1997 1996
---- ----
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 43.0 $ 119.3
Trade receivables, net of allowance of
$19 in 1997 and $18 in 1996 318.9 304.7
Inventories 353.8 271.0
Prepaid expenses and other current assets 60.4 70.1
- --------------------------------------------------------------------------------
Total current assets 776.1 765.1
Property, plant and equipment, net 409.6 434.1
Other assets 22.5 22.3
- --------------------------------------------------------------------------------
Total assets $1,208.2 $1,221.5
- --------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term debt $ 18.0 $ 2.1
Accounts payable 302.0 197.2
Accrued liabilities 227.5 222.0
- --------------------------------------------------------------------------------
Total current liabilities 547.5 421.3
Long-term debt 57.0 163.2
Other liabilities 103.0 96.7
- --------------------------------------------------------------------------------
Total liabilities 707.5 681.2
- --------------------------------------------------------------------------------
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;
67,539,935 and 70,213,603 outstanding
in 1997 and 1996, respectively 0.7 0.7
Class B, 10,000,000 shares authorized;
410,537 and 2,446,523 outstanding
in 1997 and 1996, respectively - -
Capital in excess of par 537.2 519.3
Retained earnings 168.8 19.8
Accumulated translation adjustment (23.8) 0.5
Treasury stock, at cost; 6,438,114 shares
in 1997 (182.2) -
- --------------------------------------------------------------------------------
Total stockholders' equity 500.7 540.3
- --------------------------------------------------------------------------------
Total liabilities and stockholders'
equity $1,208.2 $1,221.5
</TABLE>
- --------------------------------------------------------------------------------
See notes to consolidated financial statements.
35
<PAGE>
Lexmark International Group, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the years ended December 31, 1997, 1996 and 1995
(Dollars In Millions)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
Cash flows from operating activities:
<S> <C> <C> <C>
Net earnings $149.0 $127.8 $ 32.4
Adjustments to reconcile net earnings
to net cash
provided by operating activities:
Depreciation and amortization 77.5 69.2 99.1
Option compensation related to IPO - - 60.6
Extraordinary loss on extinguishment
of debt 22.4 - 15.7
Deferred taxes 40.7 12.3 (30.8)
Other non-cash charges to operations 24.6 22.6 45.5
- --------------------------------------------------------------------------------
314.2 231.9 222.5
Change in assets and liabilities:
Trade receivables (47.5) (70.1) (52.5)
Trade receivables programs 33.3 (21.0) 30.0
Inventories (82.8) 25.3 (17.3)
Accounts payable 104.8 (12.4) 71.3
Accrued liabilities 5.5 (36.4) 76.5
Other assets and liabilities (52.6) 0.7 (23.0)
- --------------------------------------------------------------------------------
Net cash provided by operating
activities 274.9 118.0 307.5
Cash flows from investing activities:
Purchases of property, plant and
equipment (69.5) (145.0) (106.8)
Proceeds from sale of property,
plant and equipment 1.1 3.6 6.6
- --------------------------------------------------------------------------------
Net cash used for investing
activities (68.4) (141.4) (100.2)
Cash flows from financing activities:
Increase in short-term debt 35.8 2.1 -
Proceeds from issuance of long-term debt,
net of issue costs of $2.8 in 1995 0.2 5.7 147.2
Principal payments on long-term debt (125.5) (38.0) (245.0)
Charges related to extinguishment of debt (22.4) - -
Purchase of treasury stock (182.2) - -
Exercise of stock options and warrants 15.2 23.0 -
Preferred dividends paid - - (2.2)
- --------------------------------------------------------------------------------
Net cash used for financing
activities (278.9) (7.2) (100.0)
Effect of exchange rate changes on cash (3.9) (0.6) 1.2
- --------------------------------------------------------------------------------
Net increase (decrease) in cash and cash
equivalents (76.3) (31.2) 108.5
Cash and cash equivalents - beginning of
period 119.3 150.5 42.0
- --------------------------------------------------------------------------------
Cash and cash equivalents - end of period $ 43.0 $119.3 $150.5
</TABLE>
- --------------------------------------------------------------------------------
See notes to consolidated financial statements.
36
<PAGE>
Lexmark International Group, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
For the years ended December 31, 1997, 1996 and 1995
(Dollars in Millions, Except Share Amounts)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Junior Class A
Preferred Stock Common Stock
--------------- ------------
Shares Amount Shares Amount
------ ------ ------ ------
<S> <C> <C> <C> <C>
Balance at December 31, 1994 50,000 $ 5.0 60,387,105 $0.6
Issuance of common stock less notes receivable of $0.1 3,600
Conversion of Class B to Class A common stock 2,361,377
Conversion of junior preferred stock to Class A common stock (50,000) (5.0) 750,000
Shares issued upon exercise of warrants 254,385
Option compensation related to IPO
Long-term incentive plan compensation
Net shares issued upon exercise of options 547,152
Cash received for payments on notes receivable for common
stock issued to management and certain other individuals
Translation adjustment
Net earnings
- --------------------------------------------------------------------------------------------------------------
Balance at December 31, 1995 ---- ---- 64,303,619 0.6
Conversion of Class B to Class A common stock 3,442,100 0.1
Option compensation expense
Long-term incentive plan compensation
Net shares issued upon exercise of options 2,467,884
Tax benefit related to stock options and warrants
Cash received for payments on notes receivable for common
stock issued to management and certain other individuals
Translation adjustment
Net earnings
- --------------------------------------------------------------------------------------------------------------
Balance at December 31, 1996 ---- ---- 70,213,603 0.7
Conversion of Class B to Class A common stock 2,035,986
Shares issued upon exercise of warrants 531,284
Option compensation expense
Long-term incentive plan compensation
Deferred stock plan compensation
Shares issued upon exercise of options 1,197,176
Tax benefit related to stock options and warrants
Treasury shares repurchased
Cash received for payments on notes receivable for common
stock issued to management and certain other individuals
Translation adjustment
Net earnings
- --------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 ---- $---- 73,978,049 $0.7
- --------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
37
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Class B
Common Stock
-------------------- Retained Accumulated
Capital in Earnings Translation Treasury
Shares Amount Excess of Par (Deficit) Adjustment Stock Total
------ ------ ------------- --------- ----------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
8,250,000 $ 0.1 $430.2 $(140.4) $---- $---- $295.5
----
(2,361,377) ----
5.0 ----
1.7 1.7
58.7 58.7
0.6 0.6
(1.8) (1.8)
0.2 0.2
2.9 2.9
32.4 32.4
- -----------------------------------------------------------------------------------------------------------------
5,888,623 0.1 494.6 (108.0) 2.9 ---- 390.2
(3,442,100) (0.1) ----
1.2 1.2
0.8 0.8
15.1 15.1
7.4 7.4
0.2 0.2
(2.4) (2.4)
127.8 127.8
- -----------------------------------------------------------------------------------------------------------------
2,446,523 ---- 519.3 19.8 0.5 ---- 540.3
(2,035,986) ----
1.1 1.1
0.6 0.6
0.1 0.1
1.8 1.8
7.8 7.8
6.4 6.4
(182.2) (182.2)
0.1 0.1
(24.3) (24.3)
149.0 149.0
- -----------------------------------------------------------------------------------------------------------------
410,537 $---- $537.2 $168.8 $(23.8) $(182.2) $500.7
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
38
<PAGE>
Lexmark International Group, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Millions, Except Share Amounts)
1. ORGANIZATION AND BUSINESS
Lexmark International Group, Inc. (together with its subsidiaries, the
"company") is a global developer, manufacturer and supplier of laser and inkjet
printers and associated consumable supplies. The company also sells dot matrix
printers for printing single and multi-part forms by business users. The
company's core printer business targets the office and home markets. In addition
to its core printer business, the company develops, manufactures and markets a
broad line of other office imaging products which include supplies for
International Business Machines Corporation ("IBM") branded printers,
after-market supplies for other original equipment manufacturer ("OEM")
products, and typewriters and typewriter supplies that are sold under the IBM
trademark. The principal customers for the company's products are dealers,
retailers and distributors worldwide. The company employs marketing teams which
target large accounts to generate demand in selected industries worldwide. The
company's products are sold in over 150 countries in North and South America,
Europe, the Middle East, Africa, Asia, the Pacific Rim and the Caribbean.
2. SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation:
The accompanying consolidated financial statements include the accounts
of Lexmark International Group, Inc. and its subsidiaries. All significant
intercompany accounts and transactions have been eliminated.
Foreign Currency Translation:
Assets and liabilities of non-U.S. subsidiaries that operate in a local
currency environment are translated into U.S. dollars at period-end exchange
rates. Income and expense accounts are translated at average exchange rates
prevailing during the period. Adjustments arising from the translation of assets
and liabilities are accumulated as a separate component of stockholders' equity.
Use of Estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions. These estimates and assumptions affect the reported amounts of
assets and liabilities, disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates. Estimates are used when accounting for such items as the allowance
for doubtful accounts, inventory reserves, product warranty, depreciation,
employee benefit plans and taxes.
39
<PAGE>
Cash Equivalents:
All highly liquid investments with an original maturity of three months
or less at the company's date of purchase are considered to be cash equivalents.
Inventories:
Inventories are stated at the lower of average cost or market. The
company considers all raw materials to be in production upon their receipt.
Property, Plant and Equipment:
Property, plant and equipment are stated at cost and depreciated over
their estimated useful lives using the straight-line method. Property, plant and
equipment accounts are relieved of the cost and related accumulated depreciation
when assets are disposed of or otherwise retired.
Revenue Recognition:
Sales are recognized when products are shipped to customers. A
provision for estimated sales returns is recorded in the period in which related
sales are recognized.
Advertising Costs:
The company expenses advertising costs when incurred. Advertising
expense was approximately $56.9 million, $49.3 million and $43.0 million in
1997, 1996 and 1995, respectively.
Income Taxes:
The company utilizes the liability method of accounting for income
taxes. This method requires recognition of deferred tax assets and liabilities
for the expected future tax consequences of events that have been included in
the financial statements or tax returns. Under this method, deferred tax assets
and liabilities are determined based on the difference between the financial
statement carrying amounts and tax bases of assets and liabilities using enacted
tax rates in effect for the year in which the differences are expected to
reverse.
Earnings Per Share:
In February 1997, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standard ("SFAS") No. 128, Earnings per
Share. Under SFAS No. 128, the company presents two earnings per share ("EPS")
amounts. Basic EPS are computed by dividing earnings available to common
stockholders by the weighted average number of common shares outstanding for the
period. Diluted EPS reflect the potential dilution of securities that could
share in the earnings, including stock options and warrants. EPS amounts have
been calculated and presented under the provisions of SFAS No. 128.
40
<PAGE>
3. INVENTORIES
Inventories consisted of the following at December 31:
1997 1996
- ----------------------------------------------------
Work in process $211.2 $144.6
Finished goods 142.6 126.4
- ----------------------------------------------------
$353.8 $271.0
- ----------------------------------------------------
4. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consisted of the following at December
31:
1997 1996
- ---------------------------------------------------
Land and improvements $ 16.2 $ 15.9
Buildings and improvements 171.9 184.9
Machinery and equipment 428.9 392.2
Information systems and furniture 124.4 118.7
- ---------------------------------------------------
741.4 711.7
Less accumulated depreciation 331.8 277.6
- ---------------------------------------------------
$409.6 $434.1
- ---------------------------------------------------
Depreciation expense was $76.8 million, $62.3 million and $71.2 million
for 1997, 1996 and 1995, respectively.
5. ACCRUED LIABILITIES
Accrued liabilities consisted of the following at December 31:
1997 1996
- -------------------------------------------------------
Compensation $ 58.7 $ 57.6
Income taxes payable 9.5 7.0
Fixed assets 9.0 26.8
Warranty 30.6 31.0
Value added tax 6.6 15.5
Deferred revenue 27.8 17.4
Other 85.3 66.7
- -------------------------------------------------------
$227.5 $222.0
- -------------------------------------------------------
41
<PAGE>
6. DEBT
Long-term debt consisted of the following at December 31:
1997 1996
- ---------------------------------------------------------
Revolving credit facility
refinanced $20.0 $ -
Term loan refinanced 37.0 37.0
Senior subordinated notes, 14.25%
interest rate, due in 2001 - 120.0
Other - 6.2
- ---------------------------------------------------------
$57.0 $163.2
- ---------------------------------------------------------
In March 1997, the company prepaid its $120.0 million, 14.25 percent
senior subordinated notes due in 2001. The prepayment resulted in an
extraordinary charge of $22.4 million ($14.0 million net of tax benefit) caused
by a prepayment premium and other fees. In 1995, the company refinanced its term
loan and revolving credit facility. This early extinguishment of debt resulted
in an extraordinary charge of $22.1 million ($15.7 million net of tax benefit)
caused by the mark to market of a related hedging instrument and other fees.
In March 1997, the company entered into three-year interest rate swaps
with a total notional amount of $60.0 million, whereby the company pays interest
at a fixed rate of approximately 6.5% and receives interest at a floating rate
equal to the three-month London Inter Bank Offered Rate (LIBOR). The swaps serve
as a hedge of financings based on floating interest rates. The company also has
an interest rate/currency swap with a notional amount remaining of $36.7
million. The interest rate/currency swap matures on March 27, 1998. The
effective rate of interest on the term loan (after giving effect to the interest
rate/currency swap) was 6.7% at December 31, 1997.
In January 1998, the company entered into a new $300.0 million
unsecured, revolving credit facility with a group of banks. Upon entering the
new agreement, the company repaid the amounts outstanding on its existing term
loan and revolving credit facility. The revolving credit facility and term loan
at December 31, 1997 were classified as long-term, as the company had the intent
and ability, supported by the terms of the new revolving credit facility, to
obtain long-term financing.
The interest rate on the new credit facility ranges from 0.2% to 0.7%
above LIBOR, as adjusted under certain limited circumstances, based upon the
company's debt rating, if available, or based upon certain performance ratios.
In addition, the company pays a facility fee on the $300.0 million of 0.1% to
0.3% based upon the company's debt rating, if available, or based upon certain
performance ratios. The interest and facility fee rates are calculated
quarterly.
The $300.0 million credit agreement contains customary default
provisions, leverage and interest coverage restrictions and certain restrictions
on the incurrence of additional debt, liens, mergers or consolidations and
investments. Any amounts outstanding under the $300.0 million credit facility
are due upon the maturity of the facility on January 27, 2003.
Interest expense of $0.9 million, $1.2 million and $7.7 million in
1997, 1996 and 1995, respectively, related to the swaps discussed above,
previously outstanding interest rate/currency swaps and interest rate caps and
options is included in interest expense in the statement of earnings.
42
<PAGE>
Total cash paid for interest amounted to $13.2 million, $24.2 million
and $41.4 million in 1997, 1996 and 1995, respectively.
7. STOCKHOLDERS' EQUITY
The Class A common stock is voting and exchangeable for Class B common
stock in very limited circumstances. The Class B common stock is non-voting and
is convertible, subject to certain limitations, into Class A common stock.
At December 31, 1997, approximately 77,300,000 and 1,750,000 shares of
Class A and Class B common stock were unissued and unreserved. These shares are
available for a variety of general corporate purposes, including future public
offerings to raise additional capital and for facilitating acquisitions.
The remaining warrants outstanding in connection with a technology
agreement with an unrelated party to purchase 634,365 shares of Class A common
stock at $6.67 per share were exercised during 1997.
In April 1996, the company's board of directors authorized the
repurchase of up to $50 million of its Class A common stock. In May 1997, the
company's board of directors authorized the repurchase of an additional $150
million of its Class A common stock. The repurchase authority allows the company
at management's discretion to selectively repurchase its stock from time to time
in the open market or in privately negotiated transactions depending upon market
price and other factors. During the year ended December 31, 1997, the company
repurchased 6,438,114 shares at prices ranging from $21.25 to $33.75 per share
for an aggregate cost of approximately $182.2 million. In February 1998, the
company's board of directors authorized the repurchase of up to an additional
$200 million of its Class A common stock. This repurchase authority, like the
prior authorizations, allows the company at management's discretion to
selectively repurchase its stock from time to time in the open market or in
privately negotiated transactions depending upon market price and other factors.
In February 1998, the company's board of directors adopted a
stockholder rights plan (the "Rights Plan") which provides existing stockholders
with the right to purchase one one-hundredth (0.01) of a share of Series A
Junior Participating preferred stock for each share of common stock held in the
event of certain changes in the company's ownership. The Rights Plan may serve
as a deterrent to certain abusive takeover tactics which are not in the best
interest of stockholders. The rights will expire on January 31, 2008, unless
earlier redeemed by the company.
8. STOCK INCENTIVE PLANS
The company has established various stock incentive plans to encourage
employees and non-employee directors to remain with the company and to more
closely align their interests with those of the company's stockholders. Under
the employee plans, as of December 31, 1997 approximately 1,300,000 shares of
Class A common stock are reserved for future grants in the form of stock
options, stock appreciation rights, restricted stock, performance shares or
deferred stock units. Under the director plan, as of December 31, 1997
approximately 42,000 shares of Class A common stock are reserved for future
grants in the form of stock options and deferred stock units. As of December 31,
1997, awards under the programs have been limited to stock options, restricted
stock, performance shares and deferred stock units.
43
<PAGE>
The exercise price of options awarded under these plans is equal to the
fair market value of the underlying common stock on the date of grant. All
options expire ten years from the date of grant and become fully vested at the
end of five years based upon continued employment or the completion of three
years of service on the board of directors.
The company recognized a non-cash compensation charge in 1995 of $60.6
million ($38.5 million net of tax benefit) for certain stock options outstanding
prior to the initial public offering in November 1995.
The company applies APB Opinion 25, Accounting for Stock Issued to
Employees, and related interpretations in accounting for its plans. Accordingly,
no compensation expense has been recognized for its stock-based compensation
plans other than for restricted stock, performance-based awards and the non-cash
compensation charge mentioned in the preceding paragraph. Had compensation
expense for the company's stock-based compensation plans been determined based
on the fair value at the grant date for awards under these plans consistent with
the methodology prescribed under SFAS No. 123, Accounting for Stock-Based
Compensation, net earnings and earnings per share would have been reduced to the
pro forma amounts indicated in the table below:
1997 1996 1995
- -----------------------------------------------------------------------------
Net earnings - as reported $149.0 $127.8 $32.4
Net earnings - pro forma 145.1 125.0 29.9
Basic EPS - as reported $ 2.09 $ 1.78 $0.47
Basic EPS - pro forma 2.04 1.74 0.44
Diluted EPS - as reported $ 1.98 $ 1.69 $ 0.44
Diluted EPS - pro forma 1.93 1.65 0.40
- -----------------------------------------------------------------------------
The fair value of each option grant was estimated on the date of grant
using the Black-Scholes option-pricing model with the following assumptions:
1997 1996 1995
- -------------------------------------------------------------------------
Expected dividend yield - - -
Expected stock price volatility 44% 45% 45%
Weighted average risk-free 6.2% 5.8% 5.9%
interest rate
Weighted average expected life of options
(years) 4.8 3.9 4.4
- -------------------------------------------------------------------------
The weighted average fair value of options granted during 1997, 1996
and 1995 was $11.84, $7.67 and $8.16 per share, respectively.
The pro forma effects on net income for 1997, 1996 and 1995 are not
representative of the pro forma effect on net income in future years because
they do not take into consideration pro forma compensation expense related to
grants made prior to 1995.
A summary of the status of all of the company's stock incentive plans
as of December 31, 1997, 1996 and 1995 and changes during the years then ended
is presented below:
44
<PAGE>
Weighted
Average
Exercise
Number Price
- ---------------------------------------------------------------
Outstanding at January 1, 1995 8,048,010 $ 7.26
Granted 2,609,007 19.14
Exercised (987,108) 7.09
Forfeited or canceled (241,128) 8.20
- ---------------------------------------------------------------
Outstanding at December 31, 1995 9,428,781 10.54
Granted 508,532 19.39
Exercised (2,664,363) 7.11
Forfeited or canceled (321,088) 14.81
- ---------------------------------------------------------------
Outstanding at December 31, 1996 6,951,862 12.31
Granted 1,355,755 25.67
Exercised (1,276,408) 7.82
Forfeited or canceled (239,284) 18.40
- ---------------------------------------------------------------
Outstanding at December 31, 1997 6,791,925 $15.58
- ---------------------------------------------------------------
As of December 31, 1997, 1996, and 1995 there were 3,678,324, 4,574,734
and 6,787,426 options exercisable, respectively.
The following tables summarize information about stock options
outstanding at December 31, 1997:
Options Outstanding
- ------------------------------------------------------------------------
Number Weighted-Average
Range of Outstanding Remaining Weighted-Average
Exercise Prices at Contractual Exercise Price
12/31/97 Life
- ------------------------------------------------------------------------
$ 6.67 to $14.75 2,817,330 4.0 years $ 7.52
15.00 to 19.75 603,574 7.3 16.19
20.00 to 36.44 3,371,021 8.4 22.25
- ------------------------------------------------------------------------
$ 6.67 to $36.44 6,791,925 6.5 $15.58
- ------------------------------------------------------------------------
Options Exercisable
- ----------------------------------------------------
Number
Range of Exercisable Weighted-Average
Exercise Prices at 12/31/97 Exercise Price
- ----------------------------------------------------
$ 6.67 to $14.75 2,701,118 $ 7.37
15.00 to 19.75 282,646 16.07
20.00 to 36.44 694,560 20.40
- ----------------------------------------------------
$ 6.67 to $36.44 3,678,324 $10.50
- ----------------------------------------------------
45
<PAGE>
9. INCOME TAXES
The provision for income taxes consisted of the following:
1997 1996 1995
- --------------------------------------------------------
Currently payable:
Federal $37.8 $50.0 $32.3
Non-U.S. 9.9 5.3 5.1
State and local 3.3 6.2 8.6
- --------------------------------------------------------
51.0 61.5 46.0
Deferred payable (benefit):
Federal 34.1 12.0 (23.9)
Non-U.S. 2.6 0.1 (0.4)
State and local 4.0 0.2 (6.5)
- --------------------------------------------------------
40.7 12.3 (30.8)
- --------------------------------------------------------
Provision for income taxes $91.7 $73.8 $15.2
- --------------------------------------------------------
Earnings before income taxes were as follows:
1997 1996 1995
- ---------------------------------------------------------
U.S. $166.7 $129.6 $27.3
Non-U.S. 88.0 72.0 36.0
- ----------------------------------------------------------
Earnings before income taxes $254.7 $201.6 $63.3
- ----------------------------------------------------------
The U.S. and non-U.S. earnings before income taxes reflect write-offs
of certain intercompany obligations owed to the U.S. totaling $10.6 million in
1995.
The company realized an income tax benefit from the exercise of certain
stock options and warrants in 1997 and 1996 of $6.4 million and $7.4 million,
respectively. This benefit resulted in a decrease in current income taxes
payable and an increase in capital in excess of par.
Significant components of deferred income taxes were as follows:
1997 1996
- --------------------------------------------------------
Deferred tax assets:
Tax loss carryforwards $ 14.9 $ 24.2
Intangible assets 7.0 10.3
Alternative minimum tax credits - 6.3
Unexercised stock options 6.4 12.4
Inventories 17.5 20.2
Valuation allowance (20.8) (32.3)
- --------------------------------------------------------
Total deferred tax assets 25.0 41.1
- --------------------------------------------------------
Deferred tax liabilities:
Prepaid expenses 3.1 4.6
Property, plant and equipment 19.9 17.2
Other 24.1 0.7
- --------------------------------------------------------
Total deferred tax liabilities 47.1 22.5
- --------------------------------------------------------
Net deferred tax asset (liability) $(22.1) $ 18.6
- --------------------------------------------------------
46
<PAGE>
The net decrease in the total valuation allowance for the years ended
December 31, 1997 and 1996 was $11.5 million and $44.9 million, respectively.
The company has non-U.S. tax loss carryforwards of $53.0 million including $19.7
million which expire between the years 2000 and 2004. Of these non-U.S. tax loss
carryforwards, $13.4 million are not expected to provide a future benefit
because they are attributable to certain non-U.S. entities that are also taxable
in the U.S.
A reconciliation of the provision for income taxes using the U.S.
statutory rate and the company's effective tax rate was as follows:
<TABLE>
<CAPTION>
1997 1996 1995
---------------- --------------- ---------------
Amount % Amount % Amount %
- ------------------------------------------------------------------------------------------------
Provision for income taxes at
<S> <C> <C> <C> <C> <C> <C>
statutory rate $89.2 35.0% $70.5 35.0% $22.2 35.0%
State and local income taxes, net of
federal tax benefi 7.3 2.9 6.4 3.2 1.4 2.2
Losses providing no tax benefit 5.8 2.3 45.1 22.3 31.2 49.3
Change in the beginning-of-the-year
balance of the valuation allowance
for deferred tax assets affecting
provision (11.5) (4.5) (44.9) (22.3) (33.6) (53.1)
Research and development credit (5.5) (2.2) (2.9) (1.4) (3.8) (6.0)
Foreign sales corporation (2.6) (1.0) (5.0) (2.5) (2.3) (3.6)
Non-U.S. income exempt from tax - - - - (3.7) (5.8)
Other 9.0 3.5 4.6 2.3 3.8 6.0
- ------------------------------------------------------------------------------------------------
Provision for income taxes $91.7 36.0% $73.8 36.6% $15.2 24.0%
- ------------------------------------------------------------------------------------------------
</TABLE>
Cash paid for income taxes was $36.3 million, $60.7 million and $24.1
million in 1997, 1996 and 1995, respectively.
10. EMPLOYEE PENSION PLANS
The company and its subsidiaries have retirement plans covering
substantially all regular employees. The total pension expense of all defined
benefit plans is determined using the projected unit credit actuarial method.
Plan assets are invested in government securities, corporate debt,
annuity contracts and equity securities. It is the company's policy to fund
amounts for pensions sufficient to meet the minimum requirements prescribed by
various government regulations and such additional amounts as the company may
determine to be appropriate.
U.S. Plans: Regular full-time employees in the U.S. are covered by a
noncontributory defined benefit plan, which is funded by company contributions
to an irrevocable trust fund held for the sole benefit of employees. Monthly
retirement benefits are based on service and compensation. Benefits become
vested upon completion of five years of service. The company has a supplemental
retirement plan for employees whose benefits under the defined benefit plan are
limited because of restrictions imposed by federal tax laws.
Non-U.S. Plans: Most subsidiaries have retirement plans covering
substantially all employees funded through various fiduciary-type arrangements.
Retirement benefits are generally based on years of service and compensation
during a fixed number of years immediately prior to retirement.
47
<PAGE>
Net periodic pension expense included the following components:
<TABLE>
<CAPTION>
U.S. Plans Non-U.S. Plans
--------------------------- -------------------------
1997 1996 1995 1997 1996 1995
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Service cost $10.9 $15.5 $12.3 $2.1 $2.0 $1.9
Interest cost 24.3 23.0 20.3 4.2 4.5 4.5
Actual (gain) loss return on
plan assets (70.2) (27.2) (82.4) (4.7) (4.3) (4.9)
Net amortization and deferral 38.3 (5.8) 56.3 1.1 0.6 1.3
Settlement/curtailment losses - - - 0.3 0.9 -
- ----------------------------------------------------------------------------------------------------------
Net periodic pension expense $ 3.3 $ 5.5 $ 6.5 $3.0 $3.7 $2.8
- ----------------------------------------------------------------------------------------------------------
</TABLE>
The funded status at December 31 was as follows:
<TABLE>
<CAPTION>
U.S. Plans Non-U.S. Plans
-------------------- ---------------------
1997 1996 1997 1996
- ----------------------------------------------------------------------------------------------------------
Actuarial present value of benefit obligations:
<S> <C> <C> <C> <C>
Vested benefit obligation $266.2 $218.5 $ 57.7 $ 53.7
- ----------------------------------------------------------------------------------------------------------
Accumulated benefit obligation $305.8 $256.0 $ 61.1 $ 57.3
- ----------------------------------------------------------------------------------------------------------
Plan assets at fair value $386.5 $322.8 $ 56.3 $ 54.9
Projected benefit obligation 380.3 303.2 70.6 66.7
- ----------------------------------------------------------------------------------------------------------
Plan assets in excess of (or less than) projected
benefit obligation 6.2 19.6 (14.3) (11.8)
Unrecognized net (gain) loss (1.6) (11.8) 7.1 3.9
Additional minimum liability - - (3.1) (2.5)
- ----------------------------------------------------------------------------------------------------------
Prepaid pension cost (pension liability) $ 4.6 $ 7.8 $(10.3) $(10.4)
- ----------------------------------------------------------------------------------------------------------
</TABLE>
Significant actuarial assumptions used to determine the projected
benefit obligation and to compute the expected long-term return on assets were
as follows:
<TABLE>
<CAPTION>
U.S. Plans Non-U.S. Plans
----------------------------- ------------------------------
1997 1996 1995 1997 1996 1995
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Discount rate 7.0% 7.5% 7.0% 6.3% 6.8% 7.5%
Long-term rate of compensation increase 4.5% 5.0% 4.5% 3.9% 4.3% 4.8%
Expected long-term rate of return on
plan assets 10.0% 10.0% 10.0% 7.2% 7.4% 8.1%
- ------------------------------------------------------------------------------------------------------------
</TABLE>
The actuarial assumptions for non-U.S. plans represent weighted
averages reflecting the combined assumptions for all non-U.S. plans.
The company also sponsors various defined contribution plans for
employees in certain countries. Company contributions are based upon a
percentage of employees' contributions. The company's expense under these plans
amounted to $4.5 million, $4.4 million and $2.9 million in 1997, 1996 and 1995,
respectively.
48
<PAGE>
11. OTHER POSTRETIREMENT BENEFIT PLANS
The company and certain of its non-U.S. subsidiaries have medical,
dental and life insurance plans for retirees. Most retirees outside the U.S. are
covered by government-sponsored programs. The company provides U.S. retirees
with medical benefits similar to those provided to full-time employees, subject
to certain maximums. The company does not fund its postretirement benefit plans.
All U.S. full-time employees who meet certain years of service requirements are
eligible for postretirement benefits.
Net periodic U.S. postretirement benefit expense included the following
components:
1997 1996 1995
- --------------------------------------------------------
Service cost $3.0 $3.1 $1.7
Interest cost 2.0 1.8 1.4
Amortization of net loss
from earlier periods - 0.2 -
- --------------------------------------------------------
Net periodic U.S.
postretirement benefit expense $5.0 $5.1 $3.1
- --------------------------------------------------------
The U.S. postretirement benefit liability at December 31 was as follows:
1997 1996
- -----------------------------------------------------------
Active employees, not fully eligible
for benefits $23.2 $22.3
Fully eligible active plan participants 9.8 4.8
- -----------------------------------------------------------
Accumulated postretirement benefit
obligation 33.0 27.1
Unrecognized net loss (4.3) (3.0)
- -----------------------------------------------------------
Postretirement benefit liability $28.7 $24.1
- -----------------------------------------------------------
Assumed medical cost inflation for 1998, 1999, and 2000 is projected to
be 8.7%, 7.9% and 4.0%, respectively, for an average annual medical cost
increase over the next three years of 6.9%. No medical inflation is assumed
after 2000, by which time medical costs are assumed to have doubled from 1991
levels. Since the plan caps medical costs at twice the 1991 levels, the effect
of a 1% increase in the assumed medical inflation rate is not material. The
assumed discount rate for postretirement medical benefits is 7.2%, 7.7% and 7.2%
for 1997, 1996 and 1995, respectively.
IBM agreed to pay for its pro rata share (currently estimated at $66.5
million) of future postretirement benefits for all company employees based on
relative years of service with IBM and the company.
12. COMMITMENTS
The company is committed under operating leases (containing various
renewal options) for rental of office and manufacturing space and equipment.
Rent expense (net of rental income of $5.6 million, $5.8 million and $5.6
million) was $16.0 million, $13.0 million and $9.9 million in 1997, 1996 and
1995, respectively. Future minimum rentals under terms of non-cancelable
operating leases at December 31 are: 1998-$18.3 million; 1999-$15.2 million;
2000-$11.5 million; 2001-$7.6 million; 2002-$4.3 million and thereafter-$3.2
million.
49
<PAGE>
13. DERIVATIVE FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
The company manages risk arising from fluctuations in interest rates
and currency exchange rates by using derivative financial instruments. The
company manages exposure to counterparty credit risk by entering into derivative
financial instruments with highly rated institutions that can be expected to
fully perform under the terms of such agreements. The company does not hold or
issue financial instruments for trading purposes. Where appropriate, the company
arranges master netting agreements.
Instruments used as hedges must be effective at reducing the risk
associated with the exposure being hedged and must be designated as a hedge at
the inception of the contract. Accordingly, changes in market values of hedge
instruments must be highly correlated with changes in market values of
underlying hedged items both at inception of the hedge and over the life of the
hedge contract. Any instrument not qualifying as a hedge or designated but
ineffective as a hedge is marked to market and recognized in earnings
immediately.
Interest Rate Risk Management: The company has, from time to time,
utilized interest rate swaps, caps and options to maintain an appropriate
balance between fixed and floating rate debt in order to minimize the effect of
changing interest rates on earnings.
Interest rate swaps and interest rate/currency swaps are included in
the statement of financial position as accrued liabilities and other
liabilities, respectively. Interest differentials resulting from interest rate
swap agreements used to change the interest rate characteristics of debt are
recorded on an accrual basis as an adjustment to interest expense. Premiums paid
for interest rate cap and option agreements are included in the statement of
financial position as current assets and non-current assets and are charged to
interest expense over the terms of the agreements or when written off, if the
option expires unexercised. Amounts receivable under cap agreements and gains
realized on options are recognized as reductions of interest expense over the
terms of the agreements. In the event of an early termination of an interest
rate swap agreement designated as a hedge, the gain or loss is deferred,
recorded in non-current assets or liabilities, and recognized as an adjustment
to interest expense over the remaining term of the contract.
For additional information related to derivative financial instruments
used to manage interest rate risk, see Note 6.
Foreign Exchange Risk Management: The company enters into foreign
currency swaps, options, and forward exchange contracts in its management of
foreign currency exposures. Realized and unrealized gains and losses on
contracts that are designated as hedges are recognized in earnings in the same
period as the underlying hedged transactions. Contracts that do not qualify as
hedges for accounting purposes are marked to market and the resulting gains and
losses are recognized in current earnings. The cash flows resulting from hedge
contracts are classified as cash flows from operating activities.
Notional amounts at December 31 were as follows:
1997 1996
- ---------------------------------------------------
Forward contracts $205.7 $102.4
Options purchased 249.8 241.3
Options written (104.9) (97.3)
- ---------------------------------------------------
Forward contracts and purchased options are used to hedge firm and
anticipated purchases of inventory and are included in the statement of
financial position as current assets and accrued liabilities. These instruments
50
<PAGE>
typically have remaining terms of one year or less. Gains and losses receiving
hedge accounting treatment are recognized in earnings in the same period as the
underlying hedged transactions. In the event of an early termination of a
currency exchange agreement designated as a hedge, the gain or loss and any fees
paid continue to be deferred and are included in the settlement of the
underlying transaction.
The company purchases and writes offsetting foreign currency options,
which do not qualify for hedge accounting treatment, for the purpose of reducing
the net cost of its hedging strategies. These instruments are included in the
statement of financial position as current assets and accrued liabilities,
respectively.
Concentrations of Credit Risk: The company's main concentrations of
credit risk consist primarily of temporary cash investments and trade
receivables. Temporary cash investments are placed with various financial
institutions. Company guidelines have been established relating to the amount of
deposits or investments that may be held by each financial institution. IBM is
the most significant trade customer of the company (see Note 16); otherwise,
credit risk related to trade receivables is dispersed across a large number of
customers located in various geographic areas. The company also has off-balance
sheet credit risk for the reimbursement from IBM of its pro rata share of
postretirement benefits to be paid by the company (see Note 11).
14. FAIR VALUE OF FINANCIAL INSTRUMENTS
The following table summarizes the carrying amounts and fair values of
financial instruments with fair values different than their carrying amounts at
December 31:
1997 1996
Asset (Liability) Asset(Liability)
- -------------------------------------------------------------------------------
Carrying Fair Carrying Fair
Amount Value Amount Value
------ ----- ------ -----
Non-derivatives:
Long-term debt (senior subordinated notes) $- $- $(120.0) (129.0)
Derivatives:
Prepaid expenses and other current assets 1.4 3.0 1.5 2.2
Accrued liabilities - (0.7) - (0.6)
Other assets (liabilities) 0.4 0.6 (6.0) (7.7)
- --------------------------------------------------------------------------------
The carrying amounts in the table are included in the statement of
financial position under the indicated captions. The amounts in the table are
presented net of amounts offset in accordance with FASB Interpretation No. 39,
Offsetting of Amounts Related to Certain Contracts.
Cash and cash equivalents and trade receivables are valued at their
carrying amounts as recorded in the statement of financial position, and are
reasonable estimates of fair value given the relatively short period to maturity
for these instruments. The carrying value of the term loan approximates its fair
value given its variable rate interest provisions. Derivative financial
instruments which do not qualify for hedge accounting are recorded in the
statement of financial position at their fair value. The fair value of the
senior subordinated notes was estimated based on current rates available to the
company for debt with similar characteristics. Fair values for the company's
derivative financial instruments are based on quoted market prices of comparable
instruments or, if none are available, on pricing models or formulas using
current assumptions.
51
<PAGE>
15. SALES OF RECEIVABLES
The company entered into an agreement to sell up to $100.0 million of
U.S. trade receivables on a limited recourse basis. As collections reduce
previously sold receivables, the company may replenish these with new
receivables. At December 31, 1997, U.S. trade receivables of $100.0 million had
been sold and, due to the revolving nature of the agreement, $100.0 million also
remained outstanding. At December 31, 1996, trade receivables of $65.0 million
were sold and outstanding. The agreement, which contains net worth and fixed
charge coverage restrictions, must be renewed annually, and is expected to be
renewed upon its expiration in April 1998. The risk the company bears from bad
debt losses on U.S. trade receivables sold is limited to approximately 10% of
the outstanding balance of receivables sold. The company addresses this risk of
loss in its allowance for doubtful accounts. Receivables sold may not include
amounts over 60 days past due or concentrations over certain limits with any one
customer.
The company entered into an agreement to sell up to 22 million deutsche
marks of Germany trade receivables on a limited recourse basis. At December 31,
1997, Germany trade receivables of 21.8 million deutsche marks ($12.3 million at
December 31, 1997 exchange rates) were outstanding under this program and, as
collections reduce previously sold receivables, the company may replenish these
with new receivables. At December 31, 1996, German trade receivables of 21.8
million deutsche marks ($14.0 million at December 31, 1996 exchange rates) were
sold and outstanding.
During 1997, the company adopted SFAS No. 125, Accounting for Transfers
and Servicing of Financial Assets and Extinguishments of Liabilities. SFAS No.
125 provides standards for distinguishing transfers of financial assets that are
sales from transfers that are secured borrowings and addresses programs such as
the company's trade receivables programs in the U.S. and Germany. With the
adoption of SFAS No. 125, the company continues to account for the transfer of
receivables under both programs as sale transactions. In response to SFAS No.
125 for purposes of the U.S. program, the company formed and sells its
receivables to a wholly owned subsidiary, Lexmark Receivables Corporation
("LRC"), which then sells the receivables to an unrelated third party. LRC is a
separate legal entity with its own separate creditors who, in a liquidation of
LRC, would be entitled to be satisfied out of LRC's assets prior to any value in
LRC becoming available for equity claims of an LRC stockholder.
The company sells a portion of its non-U.S. trade receivables on a
recourse basis. Proceeds from these sales totaled $18.6 million, $48.9 million
and $86.9 million in 1997, 1996 and 1995, respectively. All amounts had been
collected at December 31, 1997 and approximately $5.3 million remained
uncollected at December 31, 1996.
Expenses incurred under these programs totaling $5.2 million, $5.4
million and $3.5 million for 1997, 1996 and 1995 respectively, are included in
other non-operating expense.
16. MAJOR CUSTOMER
IBM was considered a major customer prior to 1996, and accounted for
approximately 4%, 8% and 20% of the company's total revenues in 1997, 1996 and
1995, respectively.
52
<PAGE>
17. EARNINGS PER SHARE
For the Year Ended December 31, 1997
--------------------------------------------
Earnings Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
Earnings before extraordinary item $ 163.0
Basic EPS
Earnings available to common
stockholders 163.0 71,314,311 $ 2.29
Effect of Dilutive Securities
Warrants - 324,238
Long-term incentive plan - 10,430
Stock options - 3,519,797
------- ----------
Diluted EPS
Earnings available to common
stockholders plus assumed
conversions $ 163.0 75,168,776 $ 2.17
--------------------------------------------
Options to purchase an additional 42,948 shares of Class A common stock at
prices between $32.56 and $36.44 per share were outstanding at December 31, 1997
but were not included in the computation of diluted earnings per share because
the options' exercise prices were greater than the average market price of the
common shares.
For the Year Ended December 31, 1996
--------------------------------------------
Earnings Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
Earnings before extraordinary item $127.8
Basic EPS
Earnings available to common
stockholders 127.8 71,629,572 $1.78
Effect of Dilutive Securities
Warrants - 424,285
Long-term incentive plan - 34,563
Stock options - 3,577,314
------ ----------
Diluted EPS
Earnings available to common
stockholders plus assumed
conversions $127.8 75,665,734 $1.69
--------------------------------------------
Options to purchase an additional 25,124 shares of Class A common stock at
prices between $24.75 and $26.75 per share were outstanding at December 31, 1996
but were not included in the computation of diluted earnings per share because
the options' exercise prices were greater than the average market price of the
common shares.
53
<PAGE>
For the Year Ended December 31, 1995
--------------------------------------------
Earnings Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
Earnings before extraordinary item $48.1
Basic EPS
Earnings available to common
stockholders 48.1 68,859,900 $0.70
Effect of Dilutive Securities
Warrants - 548,421
Long-term incentive plan - 37,165
Stock options - 4,754,793
----- ----------
Diluted EPS
Earnings available to common
stockholders plus assumed
conversions $48.1 74,200,279 $ 0.65
--------------------------------------------
Options to purchase an additional 2,114,321 shares of Class A common stock at
prices between $19.75 and $22.25 per share were outstanding at December 31, 1995
but were not included in the computation of diluted earnings per share because
the options' exercise prices were greater than the average market price of the
common shares.
54
<PAGE>
18. INTERNATIONAL OPERATIONS
The company operates in the office products industry segment and
manufactures its products in the U.S., France, Australia, Mexico and Scotland
and markets them throughout the world. Intergeographic transfers are accounted
for on an arm's length pricing basis. Revenues from international operations,
including exports from the U.S., represent approximately half of consolidated
revenues. Summarized financial data by region follows:
1997 1996 1995
- ------------------------------------------------------------------------------
Revenues:
U.S.
Trade (1) $1,283.6 $1,282.5 $1,278.4
Intercompany 575.7 546.6 443.7
- ------------------------------------------------------------------------------
Total U.S. 1,859.3 1,829.1 1,722.1
Europe
Trade 919.1 858.7 731.7
Intercompany 100.5 23.1 3.2
- ------------------------------------------------------------------------------
Total Europe 1,019.6 881.8 734.9
Other international
Trade 290.8 236.4 147.7
Intercompany 7.2 2.9 2.8
- ------------------------------------------------------------------------------
Total other international 298.0 239.3 150.5
- ------------------------------------------------------------------------------
3,176.9 2,950.2 2,607.5
Eliminations (683.4) (572.6) (449.7)
- ------------------------------------------------------------------------------
Total $2,493.5 $2,377.6 $2,157.8
- ------------------------------------------------------------------------------
Operating income: (2)
U.S. $ 178.0 $ 154.3 $ 65.8
Europe 96.4 77.5 46.2
Other international (1.1) 3.5 2.3
Eliminations 1.3 (4.9) (5.8)
- ------------------------------------------------------------------------------
Total $ 274.6 $ 230.4 $ 108.5
- ------------------------------------------------------------------------------
Total assets:
U.S. $1,024.4 $1,034.3 $1,016.1
Europe 545.9 385.9 319.8
Other international 119.8 92.7 53.8
Eliminations (481.9) (291.4) (246.8)
- ------------------------------------------------------------------------------
Total $1,208.2 $1,221.5 $1,142.9
- ------------------------------------------------------------------------------
(1) U.S. trade revenues include exports to international locations.
(2) Includes non-cash compensation charge in 1995 of $45.7 million, $13.6
million and $1.3 million for the U.S., Europe, and other international,
respectively.
55
<PAGE>
19. QUARTERLY FINANCIAL DATA (UNAUDITED)
First Second Third Fourth
Quarter Quarter Quarter Quarter
- --------------------------------------------------------------------------------
1997:
Revenues $583.4 $556.3 $618.3 $735.5
Gross profit 199.8 193.4 215.6 261.2
Operating income 55.7 57.5 67.0 94.4
Earnings before extraordinary item 30.7 34.3 41.0 57.0
Net earnings 16.7 34.3 41.0 57.0
Basic EPS before extraordinary item* $ 0.42 $ 0.48 $ 0.57 $ 0.83
Diluted EPS before extraordinary item* 0.40 0.45 0.54 0.78
Basic EPS* 0.23 0.48 0.57 0.83
Diluted EPS* 0.22 0.45 0.54 0.78
Stock prices:
High $29.63 $30.50 $36.31 $38.00
Low 22.00 19.13 26.88 29.56
1996:
Revenues $587.8 $555.3 $547.6 $686.9
Gross profit 182.4 172.2 173.9 218.9
Operating income 44.0 52.9 55.1 78.4
Net earnings 21.6 30.8 30.2 45.2
Basic EPS* $ 0.31 $ 0.42 $ 0.42 $ 0.62
Diluted EPS* 0.29 0.40 0.40 0.59
Stock prices:
High $23.25 $23.13 $20.88 $27.75
Low 16.00 17.88 13.38 18.88
- --------------------------------------------------------------------------------
*The sum of the quarterly earnings per share amounts do not equal the
year-to-date earnings per share due to changes in average share calculations.
This is in accordance with prescribed reporting requirements.
First quarter 1997 net earnings were reduced by an extraordinary charge
of $22.4 million ($14.0 million net of tax benefit) caused by an early
extinguishment of the company's senior subordinated notes.
20. NEW ACCOUNTING STANDARDS
In June 1997, the FASB issued SFAS No. 130, Reporting Comprehensive
Income, effective for fiscal years beginning after December 15, 1997. This
statement requires that all items that are required to be recognized under
accounting standards as components of comprehensive income be reported in a
financial statement that is displayed with the same prominence as other
financial statements. This statement does not require a specific format for that
financial statement but requires that an entity display an amount representing
total comprehensive income for the period in that financial statement. This
statement requires that an entity classify items of other comprehensive income
by their nature in a financial statement. For example, other comprehensive
income may include foreign currency items, minimum pension liability
adjustments, and unrealized gains and losses on certain investments in debt and
equity securities. In addition, the accumulated balance of other comprehensive
income must be displayed separately from retained earnings and additional
56
<PAGE>
paid-in capital in the equity section of a statement of financial position.
Reclassification of financial statements for earlier periods, provided for
comparative purposes, is required. Based on current accounting standards, this
new accounting standard is not expected to have a material impact on the
company's consolidated financial statements. The company will adopt this
accounting standard on January 1, 1998, as required.
In June 1997, the FASB issued SFAS No. 131, Disclosures about Segments
of an Enterprise and Related Information, effective for fiscal years beginning
after December 15, 1997. This statement establishes standards for reporting
information about operating segments in annual financial statements and requires
selected information about operating segments in interim financial reports
issued to stockholders. It also establishes standards for related disclosures
about products and services, geographic areas and major customers. Operating
segments are defined as components of an enterprise about which separate
financial information is available that is evaluated regularly by the
enterprise's chief operating decision maker in deciding how to allocate
resources and in assessing performance. This statement requires reporting
segment profit or loss, certain specific revenue and expense items and segment
assets. It also requires reconciliations of total segment revenues, total
segment profit or loss, total segment assets, and other amounts disclosed for
segments to corresponding amounts reported in the consolidated financial
statements. Restatement of comparative information for earlier periods presented
is required in the initial year of application. Interim information is not
required until the second year of application, at which time comparative
information is required. This statement's requirements are disclosure oriented
and, therefore, will not have a material impact on the company's financial
position, results of operations or liquidity. The company will adopt this
accounting standard on January 1, 1998, as required.
57
<PAGE>
MANAGEMENT'S REPORT ON
FINANCIAL STATEMENTS
The consolidated financial statements and related information included in this
Financial Report are the responsibility of management and have been reported in
conformity with generally accepted accounting principles. All other financial
data in this Annual Report have been presented on a basis consistent with the
information included in the consolidated financial statements. Lexmark
International Group, Inc. maintains a system of financial controls and
procedures, which includes the work of corporate auditors, which we believe
provides reasonable assurance that the financial records are reliable in all
material respects for preparing the consolidated financial statements and
maintaining accountability for assets. The concept of reasonable assurance is
based on the recognition that the cost of a system of financial controls must be
related to the benefits derived and that the balancing of those factors requires
estimates and judgment. This system of financial controls is reviewed, modified
and improved as changes occur in business conditions and operations, and as a
result of suggestions from the corporate auditors and Coopers & Lybrand L.L.P.
The Finance & Audit Committee, composed of outside members of the Board of
Directors, meets periodically with management, the independent accountants and
the corporate auditors, for the purpose of monitoring their activities to ensure
that each is properly discharging its responsibilities. The Finance & Audit
Committee, independent accountants, and corporate auditors have free access to
one another to discuss their findings.
/s/ Marvin L. Mann
Marvin L. Mann
Chairman and chief executive officer
/s/ Gary E. Morin
Gary E. Morin
Vice president and chief financial officer
58
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the board of directors of Lexmark International Group, Inc.
We have audited the accompanying consolidated statements of financial
position of Lexmark International Group, Inc. and subsidiaries as of December
31, 1997 and 1996, and the related consolidated statements of earnings, cash
flows and stockholders' equity for each of the three years in the period ended
December 31, 1997. These consolidated financial statements are the
responsibility of the company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Lexmark International Group, Inc. and subsidiaries as of December 31, 1997 and
1996, and the consolidated results of their operations and their cash flows for
each of the three years in the period ended December 31, 1997, in conformity
with generally accepted accounting principles.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Lexington, Kentucky
February 18, 1998
59
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None
60
<PAGE>
Part III
Item 10. Directors and Executive Officers of the Registrant
Information required by Part III, Item 10 of this Form 10-K is incorporated by
reference from the company's definitive Proxy Statement for its 1998 Annual
Meeting of Stockholders, which will be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, not later that 120 days after the end of
the fiscal year, and of which information is hereby incorporated by reference
in, and made part of, this Form 10-K, except that the information with respect
to executive officers of the Registrant is presented below.
The executive officers of the company and their respective ages, positions and
years of service with the company are set forth below.
<TABLE>
<CAPTION>
Years With
Name of Individual Age Position The Company
- ------------------ --- -------- -----------
<S> <C> <C> <C>
Marvin L. Mann 65 Chairman of the Board and Chief Executive Officer 7
Paul J. Curlander 45 Director, President and Chief Operating Officer 7
Gary E. Morin 49 Vice President and Chief Financial Officer 2
Kathleen J. Affeldt 49 Vice President, Human Resources 7
Daniel P. Bork 46 Director of Taxes 1
Vincent J. Cole, Esq. 41 Vice President, General Counsel and Secretary 7
David L. Goodnight 45 Corporate Controller 4
Clifford D. Gookin 40 Vice President, Corporate Development 2
Thomas B. Lamb 40 Vice President 2
Bernard V. Masson 50 Vice President 2
John C. Mitchell 51 Vice President 1
Donald C. Shropshire, Jr. 59 Vice President and General Manager 7
John A. Stanley 60 Vice President and President of Lexmark Europe 7
Alfred A. Traversi 46 Vice President, Information Technology and Operations 1
</TABLE>
Mr. Mann has been Chairman of the Board and Chief Executive Officer of the
company since March 1991 and President of the company from March 1991 to
February 1997. Prior to such time, Mr. Mann held numerous positions with IBM,
which he joined in 1958. During his IBM career, Mr. Mann held executive
positions in marketing, research and development, manufacturing and general
management, including President of the Information Products Division and
President and Chief Executive Officer of Satellite Business Systems. He was
elected an IBM Vice President in 1985. Mr. Mann also serves on the board of
directors of M.A. Hanna Company and Imation Corp. and is a member of the board
of trustees of Fidelity Investments.
Dr. Curlander has been a Director, President and Chief Operating Officer of the
company since February 1997 and Executive Vice President, Operations of Lexmark
International, Inc. ("Lexmark International") from January 1995 to February
1997. In 1993, Dr. Curlander became a Vice President of Lexmark International.
Prior to such time, commencing in March 1991, Dr. Curlander served as General
Manager of Lexmark International's Printing Systems Business. Prior to joining
the company, Dr. Curlander was employed with IBM, which he joined in 1974. He
received a Ph.D. in Electrical Engineering from MIT in 1979 while on leave of
absence from IBM. After returning to IBM, Dr. Curlander held management and
executive positions in development, manufacturing
61
<PAGE>
and general management, including leading the development of IBM's first LED
printer and the company's first desktop laser printer.
Mr. Morin has been Vice President and Chief Financial Officer of the company
since January 1996. Prior to joining the company, Mr. Morin held various
executive and senior management positions with Huffy Corporation, including most
recently, the position of Executive Vice President and Chief Operating Officer.
Ms. Affeldt has been Vice President of Human Resources since July 1996. Prior to
such time and since 1991, Ms. Affeldt served as Director of Human Resources.
Prior to 1991, Ms. Affeldt held various human resource management positions with
IBM.
Mr. Bork has been Director of Taxes of the company since he joined the company
in October 1996. Prior to joining the company, Mr. Bork was Director of Taxes
with Cray Research, Inc. Prior to his tenure at Cray Research, Inc., Mr. Bork
was with the accounting firm of Coopers & Lybrand, most recently serving as
Director of International Tax in Coopers & Lybrand's Minneapolis office.
Mr. Cole has been Vice President and General Counsel of the company since July
1996 and Corporate Secretary since February 1996. Prior to such time, commencing
in March 1991, Mr. Cole served as Corporate Counsel and then Assistant General
Counsel. Prior to joining the company, Mr. Cole was associated with the law firm
of Cahill Gordon & Reindel.
Mr. Goodnight has been Controller of the company since February 1997. Prior to
such time and since January 1994, when he joined the company, Mr. Goodnight
served as CFO for the Company's Business Printer Division. Prior to joining the
company, Mr. Goodnight held various Controller positions with Calcomp, Inc.
Mr. Gookin has been Vice President of Corporate Development of Lexmark
International since November 1995. Prior to joining the company, Mr. Gookin
served as managing director of the Mergers and Acquisition Group at Rauscher
Pierce Refsnes, Inc. Prior to 1991, Mr. Gookin held positions in the Investment
Banking Department of CS First Boston Corporation.
Mr. Lamb has been Vice President and President of the Imaging Solutions Division
of Lexmark International since August 1997. He served as Vice President and
General Manager of the Imaging Solutions Division from January 1996 up to his
appointment as division president. Prior to joining the company, Mr. Lamb held
various senior management positions with General Chemical Corporation, including
most recently, the position of Vice President and General Manager of the
Industrial Chemicals Division.
Mr. Masson has been Vice President and President of the Consumer Printer
Division of Lexmark International since August 1997. He served as Vice President
and General Manager of the Consumer Printer Division from December 1995 up to
his appointment as division president. Prior to joining the company, Mr. Masson
was Vice President and General Manager of DH Technology's DHPRINT unit, a
publicly-held manufacturer of specialty printers, primarily for the financial,
retail and gaming markets worldwide. Prior to 1992, Mr. Masson served as Senior
Vice President and General Manager - Plotter Division of Calcomp, Inc.
Mr. Mitchell has been Vice President and President of the Business Printer
Division of Lexmark International since August 1997. He served as Vice President
and General Manager of the Business Printer Division from the time he joined the
company in January 1997 up to his appointment as division president. Prior to
joining the company, Mr. Mitchell held various executive and senior management
positions with Nabisco, including most recently, the position of President -
Planters and Lifesavers Companies.
62
<PAGE>
Mr. Shropshire has been Vice President and General Manager of Lexmark
International since October 1994. Prior to such time, he served as Vice
President and General Manager, Asia Pacific, Canada, and Latin America and
Information Technology. When he joined the company in 1991, Mr. Shropshire
served as Vice President, Marketing and Sales, U.S., Canada, Latin America, and
Asia Pacific. In his prior 27 years with IBM, he held various executive
positions in marketing, development and general management.
Mr. Stanley has been Vice President of Lexmark International and President of
Lexmark Europe since March 1991. Prior to such time, Mr. Stanley worked for IBM,
which he originally joined in the United Kingdom in 1968. He held several
executive positions with IBM in Europe and the U.S. in marketing, human
resources and operations. Immediately before joining the company, he was the
director of marketing and services for IBM Europe.
Mr. Traversi has been President of Customer Services since October 1997. He
served as Vice President of Information Technology and Operations of Lexmark
International from the time he joined the company in October 1996 up to his
appointment as President of Customer Services. Prior to joining the company, Mr.
Traversi was Vice President - Operations Services with Taco Bell Corporation.
Prior to 1994, Mr. Traversi held various senior management positions with
Digital Equipment Corporation.
Item 11. Executive Compensation
Information required by Part III, Item 11 of this Form 10-K is incorporated by
reference from the company's definitive Proxy Statement for its 1998 Annual
Meeting of Stockholders, which will be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, not later that 120 days after the end of
the fiscal year, and of which information is hereby incorporated by reference
in, and made part of, this Form 10-K.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information required by Part III, Item 12 of this Form 10-K is incorporated by
reference from the company's definitive Proxy Statement for its 1998 Annual
Meeting of Stockholders, which will be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, not later that 120 days after the end of
the fiscal year, and of which information is hereby incorporated by reference
in, and made part of, this Form 10-K.
Item 13. Certain Relationships and Related Transactions
Information required by Part III, Item 13 of this Form 10-K is incorporated by
reference from the company's definitive Proxy Statement for its 1998 Annual
Meeting of Stockholders, which will be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, not later that 120 days after the end of
the fiscal year, and of which information is hereby incorporated by reference
in, and made part of, this Form 10-K.
63
<PAGE>
Part IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) 1 Financial Statements:
Financial statements filed as part of this Form 10-K are included under
Part II, Item 8.
(a) 2 Financial Statement Schedules: Pages In Form 10-K
------------------
Report of Independent Accountants 65
For the years ended December 31, 1997, 1996, and 1995:
Schedule II - Valuation and Qualifying Accounts 66
All other schedules are omitted as the required information is inapplicable or
the information is presented in the Consolidated Financial Statements or related
notes.
64
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
Our report on the consolidated financial statements of Lexmark International
Group, Inc. and subsidiaries as of December 31, 1997 and 1996 and for each of
the years in the three year period ended December 31, 1997 is included on page
59 of this Form 10-K. In connection with our audits of such financial
statements, we have also audited the related financial statement schedule listed
in the index on page 66 of this Form 10-K.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Lexington, Kentucky
February 18, 1998
65
<PAGE>
LEXMARK INTERNATIONAL GROUP, INC. AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
For the Years Ended December 31, 1995, 1996, and 1997
(Dollars in Millions)
<TABLE>
<CAPTION>
(A) (B) (C) (D) (E)
Additions
--------------------------
Balance at Charged to Charged to Balance at
Beginning Costs and other End of
Description of Period Expenses Accounts Deductions Period
- -------------------------------------- ---------- ---------- ---------- ---------- ----------
1995:
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts $19.4 $13.2 $ - $ (5.5) $27.1
Inventory reserves 36.0 36.9 - (27.9) 45.0
Deferred tax assets valuation
allowance 110.8 4.5 - (38.1) 77.2
1996:
Allowance for doubtful accounts $27.1 $ 3.0 $ - $(12.1) $18.0
Inventory reserves 45.0 30.0 - (41.4) 33.6
Deferred tax assets valuation
allowance 77.2 0.8 - (45.7) 32.3
1997:
Allowance for doubtful accounts $18.0 $ 5.1 $ - $ (3.7) $19.4
Inventory reserves 33.6 26.5 - (20.5) 39.6
Deferred tax assets valuation
allowance 32.3 3.8 - (15.3) 20.8
</TABLE>
66
<PAGE>
Item 14(a)(3). Exhibits
Exhibits for the company are listed in the Index to Exhibits beginning on page
E-1.
(b) Reports on Form 8-K
A Current Report on Form 8-K dated October 20, 1997, with respect to a press
release announcing the company's financial results for the three and nine months
ended September 30, 1997, was filed with the Securities and Exchange Commission
by the company.
A Current Report on Form 8-K dated October 21, 1997, with respect to the company
entering into an agreement, and issuing a press release announcing its agreement
to repurchase three million shares of its outstanding Class A common stock from
certain of its stockholders participating in the secondary offering of shares of
the company's Class A common stock, was filed with the Securities and Exchange
Commission by the company.
67
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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 in the City of Lexington,
State of Kentucky, on March 6, 1998.
LEXMARK INTERNATIONAL GROUP, INC.
By /s/ Marvin L. Mann
-------------------------------
Name: Marvin L. Mann
Title: Chairman of the Board &
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the following capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Marvin L. Mann Chairman of the March 6, 1998
- ------------------------ Board/Chief Executive
Marvin L. Mann Officer (Principal
Executive Officer)
/s/ Gary E. Morin Vice President/Chief March 6, 1998
- ------------------------ Financial Officer
Gary E. Morin (Principal Financial
Officer)
/s/ David L. Goodnight Corporate Controller March 6, 1998
- ------------------------ (Principal Accounting
David L. Goodnight Officer)
/s/ B. Charles Ames Director March 6, 1998
- ------------------------
B. Charles Ames
/s/ Roderick H. Carnegie Director March 6, 1998
- ------------------------
Roderick H. Carnegie
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Frank T. Cary Director March 6, 1998
- ------------------------
Frank T. Cary
/s/ Paul J. Curlander Director March 6, 1998
- ------------------------
Paul J. Curlander
/s/ William R. Fields Director March 6, 1998
- ------------------------
William R. Fields
/s/ Donald J. Gogel Director March 6, 1998
- ------------------------
Donald J. Gogel
/s/ Ralph E. Gomory Director March 6, 1998
- ------------------------
Ralph E. Gomory
/s/ Stephen R. Hardis Director March 6, 1998
- ------------------------
Stephen R. Hardis
/s/ Michael J. Maples Director March 6, 1998
- ------------------------
Michael J. Maples
/s/ Martin D. Walker Director March 6, 1998
- ------------------------
Martin D. Walker
<PAGE>
Index to Exhibits
Number Description of Exhibits
- ------ -----------------------
3.1 Third Restated Certificate of Incorporation of Lexmark
International Group, Inc. (the "company"). (1)
3.2 Company By-Laws, as Amended and Restated as of October 26,
1995, and Amended by Amendment No. 1 dated as of February 13,
1997. (7)
4.1 Amended and Restated Secured U.S. Credit Agreement, dated as
of April 21, 1995 (the "U.S. Credit Agreement"), among Lexmark
International, Inc. ("International"), the company, the
Lenders listed therein ("Lenders") and Morgan Guaranty Trust,
as agent (the "Agent"). (2)
4.2 Amendment No. 1 to the U.S. Credit Agreement, dated as of
September 26, 1995, among International, the company, the
Lenders and the Agent. (3)
4.3 Amendment No. 2 to the U.S. Credit Agreement, dated as of
April 3, 1996, among International, the company, the Lenders
and the Agent. (4)
4.4 Amendment No. 3 to the U.S. Credit Agreement, dated as of
March 14, 1997, among International, the company, the Lenders
and the Agent. (8)
4.5 Amendment No. 4 to the U.S. Credit Agreement, dated as of May
1, 1997, among International, the company, the Lenders and the
Agent. (8)
4.6 Rights Agreement, dated as of February 18, 1998, between the
company and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent. (9)
4.7 Registration and Participation Agreement, dated as of March
27, 1991, among the company, The Clayton & Dubilier Private
Equity Fund IV Limited Partnership ("C&D Fund IV"), and the
stockholders of the company named therein. (2)
4.8 Amendment, Waiver and Consent Under Registration and
Participation Agreement, dated as of December 21, 1994,
executed by C&D Fund IV, Leeway & Co., Mellon Bank N.A., as
Trustee for First Plaza Group Trust ("Mellon Bank", and with
Leeway & Co., the "Institutional Investors"), and the
Equitable Investors. (2)
4.9 Registration Agreement, dated as of March 27, 1991, among the
company, International, the Equitable Investors and the
Institutional Investors. (2)
4.10 Amendment No. 1 to the Registration Agreement, dated as of
December 31, 1991, among the company, International, the
Equitable Investors and the Institutional Investors. (2)
4.11 Letter Agreement, dated as of March 27, 1991, among the
company, C&D Fund IV and International Business Machines
Corporation ("IBM"). (1)
E-1
<PAGE>
4.12 Securities Purchase Agreement, dated as of March 27, 1991,
among the company and the Institutional Investors. (2)
4.13 Amendment No. 1 to the Securities Purchase Agreement, dated
as of March 27, 1991, among the company and the Institutional
Investors. (2)
4.14 Amendment No. 2 to the Securities Purchase Agreement, dated
as of December 21, 1992, among the company and the
Institutional Investors. (2)
4.15 Specimen of Class A common stock certificate. (1)
4.16 Warrant Agreement, dated as of April 1, 1991, among
International, Spectrum Sciences B.V., a Netherlands
corporation, and the company. (2)
4.17 Letter Agreement, dated December 31, 1992, from Keys
Foundation to the company. (2)
9.1 Voting Trust Agreement, dated as of August 28, 1991, among
Clayton & Dubilier Associates IV Limited Partnership ("C&D
Associates IV"), as voting trustee, the company and Larry H.
Holswade, Thomas L. Millner, Tadd C. Seitz and Peter C. Valli.
(2)
9.2 Voting Trust Agreement, dated as of March 27, 1991, among C&D
Associates IV, as voting trustee, the company and M. Lee
Pearce. (2)
10.1 Supplies Agreement, dated August 14, 1995, between IBM and
International. (3)*
10.1A Category I Supplies Trademark Agreement, dated as of August
16, 1995 and effective as of March 27, 1996, between IBM and
International. (1)
10.2 Agreement, dated as of August 1, 1990, between IBM and
International, and Amendment thereto. (3)*
10.3 Agreement, dated as of May 31, 1990, between International
and Canon Inc., and Amendment thereto. (3)*
10.4 Agreement, dated as of March 26, 1991, between International
and Hewlett-Packard Company. (3)*
10.5 Patent Cross-License Agreement, effective October 1, 1996,
between Hewlett-Packard Company and International. (5)*
10.6 Amended and Restated Lease Agreement, dated as of January 1,
1991, between IBM and Lexmark, and First Amendment thereto.
(2)
10.7 Board Investor Promissory Note and Pledge Agreement, dated as
of December 19, 1994,
between the company and Sir Roderick H. Carnegie. (2)
10.8 Receivables Purchase Agreement, dated as of January 31, 1994,
among International, Delaware Funding Corporation and J.P.
Morgan Delaware, as Administrative Agent. (2)
E-2
<PAGE>
10.9 Purchase Agreement, dated as of March 31, 1997, between
International, as Originator, and Lexmark Receivables
Corporation ("LRC"), as Buyer. (8)
10.10 Receivables Purchase Agreement, dated as of March 31, 1997,
among LRC, as Seller, International, as Servicer and in its
individual capacity, Delaware Funding Corporation, as Buyer,
and Morgan Guaranty Trust Company of New York, as
Administrative Agent. (8)
10.11 Indemnification Agreement, dated as of March 27, 1991, among
the company, International, Clayton & Dubilier, Inc. and C&D
Fund IV. (2)
10.12 Form of Stock Subscription Agreement, between the company and
Board investors (including a schedule of Board investors,
purchase dates and number of shares purchased). (1)
10.13 Form of Management Stock Subscription Agreement, among the
company, International and Named Executive Officers (including
a schedule of Named Executive Officers, purchase dates and
number of shares purchased). (1) +
10.14 Lexmark International Group, Inc. Stock Option Plan for
Executives and Senior Officers. (2) +
10.15 First Amendment to the Stock Option Plan for Executives and
Senior Officers, dated as of October 31, 1994. (1) +
10.16 Second Amendment to the Stock Option Plan for Executive and
Senior Officers, dated as of September 13, 1995. (1) +
10.17 Form of Management Stock Option Agreement, among the company,
International and Named Executive Officers (including a
schedule of Named Executive Officers, grant dates and number
of shares granted pursuant to options). (1) +
10.18 First Amendment to Management Stock Option Agreement, dated
as of October 31, 1994, between the company and Marvin L.
Mann. (1) +
10.19 Lexmark International Group, Inc. Stock Incentive Plan. (1) +
10.20 Form of Non-Qualified Stock Option Agreement, pursuant to the
company's Stock Incentive Plan. (1) +
10.21 Lexmark International Group, Inc. Stock Incentive Plan,
Amended and Restated Effective May 2, 1997, as amended by
Amendment No. 1 thereto dated as of July 31, 1997. (8)+
10.22 1995-1997 Long Term Incentive Plan. (2) +
10.23 Form of Management Stock Subscription Agreement, among the
company, International and Named Executive Officers (including
a schedule of Named Executive Officers, grant dates and number
of shares granted pursuant to options). (1) +
10.24 Employment Agreement, dated as of March 18, 1997, between
Marvin L. Mann and International. +
E-3
<PAGE>
10.25 Employment Agreement, dated as of March 18, 1997, between
Paul J. Curlander and International. +
10.26 Employment Agreement, dated as of March 18, 1997, between
Donald C. Shropshire and International. +
10.27 Employment Agreement, dated as of September 13, 1995, between
John A. Stanley and International U.K. Ltd. (1) +
10.28 Amendment, dated April 1, 1997, to the John A. Stanley
Employment Agreement. +
10.29 Employment Agreement, dated as of March 18, 1997, between
Gary E. Morin and International. +
10.30 Lexmark International Group, Inc. Non-Employee Director Stock
Plan, Amended and Restated Effective December 12, 1996. (6) +
10.31 Lexmark International Group, Inc. Nonemployee Director Stock
Plan, Amended and Restated Effective May 2, 1997, as amended
by Amendment No. 1 thereto dated as of July 31, 1997. (8)+
10.32 Credit Agreement, dated as of January 27, 1998, among the
company, as Parent Guarantor, International, as Borrower, the
Lenders party thereto, Fleet National Bank, as Documentation
Agent, Morgan Guaranty Trust Company of New York, as
Syndication Agent, and The Chase Manhattan Bank, as
Administrative Agent.
21 Subsidiaries of the company as of December 31, 1997.
23 Consent of Coopers & Lybrand L.L.P.
27 Financial Data Schedule.
- ----------
*Confidential treatment previously granted by the Securities and Exchange
Commission.
+ Indicates management contract or compensatory plan, contract or arrangement.
(1) Incorporated by reference to company's Form S-1 Registration
Statement, Amendment No. 1 (Registration No. 33-97218) filed
with the Commission on October 27, 1995.
(2) Incorporated by reference to company's Form S-1 Registration
Statement, (Registration No. 33-97218) filed with the
Commission on September 22, 1995.
(3) Incorporated by reference to company's Form S-1 Registration
Statement, Amendment No. 2 (Registration No. 33-97218) filed
with the Commission on November 13, 1995.
(4) Incorporated by reference to company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1996 (Commission
File No. 1-14050).
(5) Incorporated by reference to company's Quarterly Report on
Form 10-Q/A for the quarter ended September 30, 1996
(Commission File No. 1-14050).
(6) Incorporated by reference to company's Form S-3 Registration
Statement (Registration No. 333-19377) filed with the
Commission on January 8, 1997.
(7) Incorporated by reference to the company's Annual Report on
Form 10-K for the fiscal year end December 31, 1996
(Commission File No. 1-14050).
E-4
<PAGE>
(8) Incorporated by reference to the company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1997 (Commission
File No. 1-14050).
(9) Incorporated by reference to the company's Current Report on
Form 8-K dated February 27, 1998 (Commission File No.
1-14050).
E-5
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT, dated as of March 18, 1996, among Lexmark
International, Inc., a Delaware corporation (the "Employer"), Lexmark
International Group, Inc., a Delaware corporation ("Group"), and Marvin L. Mann
(the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer, Group and Employee desire to enter into an
employment agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Term; Position and Responsibilities.
-----------------------------------
(a) Term of Employment.
------------------ Unless the Employee's employment shall
sooner terminate pursuant to Section 6, the Employer shall employ the Employee
for a term commencing on April 1, 1997 and ending on March 31, 1998 (the
"Initial Term"), and the Employee's employment shall continue thereafter at
will.
(b) Position and Responsibilities.
----------------------------- The Employee will serve as
Chairman of the Board and Chief Executive Officer and in such other executive
capacity or capacities as may be determined from time to time by or under the
authority of the Board of Directors of the Employer ("Employer's Board"), and
the Employee will devote all of his skill, knowledge and working time (except
for reasonable vacation time and absence for sickness or similar disability) to
the conscientious performance of his duties. The Employee represents that he is
entering into this Agreement voluntarily and that his employment hereunder and
compliance by him with the terms and conditions of this Agreement will not
conflict with or result in the breach of any agreement to which he is a party or
by which he may be bound.
2. Base Salary.
----------- As compensation for the services to be performed by the
Employee hereunder, the Employer will pay the Employee an annual base salary of
$675,000 during the term of his employment hereunder. The Employer will review
the Employee's base salary from time to time during the period of his employment
hereunder and, in the discretion of the Employer, may increase such base salary
from time to time based upon the performance of the Employee, the financial
condition of the Employer, prevailing industry salary scales and such other
factors as the Employer shall consider relevant. (The annual base salary payable
to the Employee under this Section 2, as the same may be increased from time to
time, shall hereinafter be referred to as the "Base Salary".) The Base Salary
<PAGE>
payable under this Section 2 shall be reduced to the extent that the Employee
elects to defer such Base Salary under the terms of any deferred compensation or
savings plan maintained or established by the Employer or Group, provided that
any such reduction of the Base Salary shall not be taken into account for
purposes of calculating the Base Amount (as defined in Section 3). The Employer
shall pay the Employee the Base Salary in bi-weekly installments, or in such
other installments as may be mutually agreed upon by the Employer and the
Employee.
3. Short-Term Incentive Compensation.
----------------------------------- The Employee shall receive an
annual incentive bonus award (the "Annual Bonus") for each calendar year ending
during the term of the Employee's employment hereunder equal to:
(a) if the Operating Result (as defined below) for such year
is equal to or greater than the Maximum Operating Target (as defined
below) for such year, 200% of the amount of the Employee's Base Salary
paid to the Employee during the calendar year for which such bonus is
payable (such amount is hereinafter referred to as the "Base Amount");
(b) if the Operating Result for such year is greater than the
Operating Target but less than the Maximum Operating Target for such
year, 80% of the Base Amount plus, for each increase of 1/25 of the
difference between the Operating Target and the Maximum Operating
Target, an additional 4.8% of the Base Amount;
(c) if the Operating Result for such year is equal to 100% of
the Operating Target for such year, 80% of the Base Amount;
(d) if the Operating Result for such year is greater than the
Minimum Operating Target (as defined below) but less than the Operating
Target for such year, 30% of the Base Amount plus, for each increase of
1/20 of the difference between the Minimum Operating Target and the
Operating Target (100%), an additional 2.5% of the Base Amount; and
(e) if the Operating Result for such year is equal to the
Minimum Operating Target for such year, 30% of the Base Amount.
No Annual Bonus shall be paid if the Operating Result is less than the Minimum
Operating Target for such year. The "Operating Target", the "Maximum Operating
Target" and the "Minimum Operating Target" in any year shall be jointly
established by the Chief Executive Officer of the Employer and Employer's Board.
The "Operating Result" for any year shall be equal to the annual financial
results for the components that make up the Operating Target as of December 31
in such year, using United States generally accepted accounting principles
consistently applied and taking into account such other factors as may be
approved by Employer's Board. The Annual Bonus, if any, shall be paid as soon as
practicable after the close of the year for which the Annual Bonus is payable,
unless the Employee elects to defer such amounts under the terms of any deferred
2
<PAGE>
compensation or savings plan maintained or established by the Employer or Group.
4. Employee Benefits.
-----------------
(a) Employee Benefits.
------------------ During the term of the Employee's
employment hereunder, employee benefits, including life, medical, dental and
disability insurance, will be provided to the Employee in accordance with
programs at the Employer then available to executive employees. The Employee
shall also be entitled to participate in all of Employer's profit sharing,
pension, retirement, deferred compensation and savings plans, as the same may be
amended and in effect from time to time, at levels and having interests
commensurate with the Employee's then current period of service, compensation
and position.
(b) Supplemental Retirement Benefit.
--------------------------------- In addition to the
employee benefits provided to employee pursuant to Section 4(a), Employer shall
provide the Employee, from its general corporate assets, a straight life
annuity, payable in approximately equal monthly installments, with the first
installment payable as of the first day of the month following the month in
which the Employee's employment with Employer terminates (the "Supplemental
Benefit"). The annual amount of the Supplemental Benefit shall be equal to (i)
times (ii), minus (iii), plus (iv) and (v), where (i), (ii), (iii), (iv) and (v)
are:
(i) $150,000
(ii) the lesser of (A) one and (B) a fraction (1) the
numerator of which is the number of full and partial months of
Employee's service with Employer and (2) the denominator of
which is 60;
(iii) the amount of any pension benefit payable to
the Employee under the Lexmark Retirement Plan for services
and earnings prior to March 31, 1996; and
(iv) 1.35% of Compensation (as defined in Section
2.11 of the Lexmark Retirement Plan, without regard to any IRS
limitations) earned after March 31, 1996 multiplied by the
Lexmark Retirement Plan 100% Joint and Survivor Factor; and
(v) the Post-1996 PRP account divided by 7.5 and
multiplied by the Lexmark Retirement Plan 100% Joint and
Survivor Factor. The Post-1996 PRP account, which account may
be amended from time to time, is currently 3% of Compensation
earned after March 31, 1996 accumulated with the same rate of
interest that is accumulated under the Lexmark Retirement
Plan.
3
<PAGE>
The Supplemental Benefit shall be payable monthly as a 100% Joint and Survivor
Benefit with Employee's wife as beneficiary. Employee may elect, prior to the
termination of his employment with Employer, to receive the Supplemental Benefit
in any optional benefit form permitted under the Lexmark Retirement Plan that is
the actuarial equivalent of the benefit payable to the Employee as a straight
life annuity, based on the actuarial assumptions then in effect under such Plan.
5. Perquisites and Expenses.
------------------------
(a) General.
------- During the term of the Employee's employment
hereunder, the Employee shall be entitled to participate in any special benefit
or perquisite program available from time to time to executive employees of the
Employer on the terms and conditions then prevailing under such program.
(b) Business Travel, Lodging, etc.
---------------------------------- The Employer shall
reimburse the Employee for reasonable travel, lodging and meal expenses incurred
by him in connection with his performance of services hereunder upon submission
of evidence, satisfactory to the Employer, of the incurrence and purpose of each
such expense.
(c) Club Dues and Fees.
------------------- The Employer shall reimburse the
Employee for membership dues and fees of a country club of the Employee's
choosing and a luncheon club of the Employee's choosing.
(d) Financial Advisory Services.
--------------------------- The Employer shall reimburse
the Employee for the fees and expenses of a financial advisor, in an aggregate
amount up to $8,000 in each year during the term of the Employee's employment
hereunder, which amount may be increased from time to time in the discretion of
Employer's Board.
6. Termination of Employment.
-------------------------
(a) Termination Due to Death or Disability.
-------------------------------------- In the event that
the Employee's employment hereunder terminates due to death or is terminated by
the Employer due to the Employee's Disability (as defined below), no termination
benefits shall be payable to or in respect of the Employee except as provided in
Section 6(f)(ii). For purposes of this Agreement, "Disability" shall mean a
physical or mental disability that prevents the performance by the Employee of
his duties hereunder lasting (or likely to last, based on competent medical
evidence presented to Employer's Board) for a continuous period of six months or
longer. The reasoned and good faith judgment of Employer's Board as to the
Employee's Disability shall be final and shall be based on such competent
medical evidence as shall be presented to it by the Employee or by any physician
or group of physicians or other competent medical experts employed by the
Employee or the Employer to advise Employer's Board.
4
<PAGE>
(b) Termination by the Employer for Cause.
------------------------------------- The Employee may be
terminated for Cause by the Employer. "Cause" shall mean (i) the willful failure
of the Employee substantially to perform his duties hereunder (other than any
such failure due to physical or mental illness) after a demand for substantial
performance is delivered to the Employee by the executive to which the Employee
reports or by Employer's Board, which notice identifies the manner in which such
executive or Employer's Board, as the case may be, believes that the Employee
has not substantially performed his duties, (ii) the Employee's engaging in
willful and serious misconduct that is injurious to Group or Employer or any of
their subsidiaries, (iii) the Employee's conviction of, or entering a plea of
nolo contendere to, a crime that constitutes a felony, or (iv) the willful and
material breach by the Employee of any of his obligations hereunder, or the
willful and material breach by the Employee of any written covenant or agreement
with the Employer or any of its affiliates not to disclose any information
pertaining to the Employer or any of its affiliates or not to compete or
interfere with the Employer or any of its affiliates.
(c) Termination Without Cause.
-------------------------- A termination "Without Cause"
shall mean a termination of employment by the Employer other than due to
Disability as defined in Section 6(a) or Cause as defined in Section 6(b).
(d) Termination by the Employee.
---------------------------- The Employee may terminate
his employment for "Good Reason". "Good Reason" shall mean a termination of
employment by the Employee within 30 days following (i) any assignment to the
Employee of any duties, functions or responsibilities that are significantly
different from, and result in a substantial diminution of, the duties, functions
or responsibilities that the Employee has on the date hereof or (ii) the failure
of the Employer to obtain the assumption of this Agreement by any successor as
contemplated by Section 11.
(e) Notice of Termination.
---------------------- Any termination by the Employer
pursuant to Section 6(a), 6(b) or 6(c), or by the Employee pursuant to Section
6(d), shall be communicated by a written "Notice of Termination" addressed to
the other parties to this Agreement. A "Notice of Termination" shall mean a
notice stating that the Employee's employment hereunder has been or will be
terminated, indicating the specific termination provisions in this Agreement
relied upon and setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination of employment.
(f) Payments Upon Certain Terminations.
----------------------------------
(i) In the event of a termination of the Employee's employment
Without Cause or a termination by the Employee of his employment for
Good Reason, the Employer shall pay to the Employee (A) (1) the greater
of (x) his Base Salary, if any, for the period from the Date of
Termination through the last day of the Initial Term, provided that
Employer may, at any time, pay to the Employee in a single lump sum an
amount equal to the Base Salary remaining to be paid to the Employee as
5
<PAGE>
of the date of such lump sum payment and (y) an amount equal to one
year's Base Salary, less (2) any amounts paid or to be paid to the
Employee under the terms of any severance plan or program of Employer,
if any, as in effect on the Date of Termination and (B) a Pro Rata
Share of the Annual Bonus (as defined below). If the Employee's
employment shall terminate and he is entitled to receive salary
continuation payments under this Section 6(f)(i), and if the Employee
obtains new employment, any salary continuation payments to which the
Employee may be entitled pursuant to this Section 6(f)(i) shall be
reduced or canceled to the extent that the Employee receives salary and
other cash compensation from such employment. Any benefits payable to
the Employee under any otherwise applicable plans, policies and
practices of Employer shall not be limited by this provision.
(ii) If the Employee's employment shall terminate upon his
death or Disability or if Employer shall terminate the Employee's
employment for Cause, Employer shall pay the Employee his full Base
Salary through the Date of Termination, plus, in the case of
termination upon the Employee's death or Disability, a Pro Rata Share
of the Annual Bonus. Any benefits payable to or in respect of the
Employee under any otherwise applicable plans, policies and practices
of the Employer shall not be limited by this provision.
(iii) For purposes of this Section 6, the "Pro Rata Share of
the Annual Bonus" shall be calculated and paid as follows. If the
Employee is terminated prior to July 1 of any year, the Pro Rata Share
of the Annual Bonus (A) will be equal to the product of (1) the Annual
Bonus, calculated assuming that 100% of the Operating Target is
achieved in such year, and (2) a fraction equal to the number of full
months in such year prior to the Date of Termination over 12, and (B)
will be paid to the Employee within 30 days after the Date of
Termination. If the Employee is terminated on or after July 1 of any
year, the Pro Rata Share of the Annual Bonus (A) will be equal to the
product of (1) the Annual Bonus, calculated based on the actual
Operating Result for such year, and (2) a fraction equal to the number
of full months in such year prior to the Date of Termination over 12,
and (B) will be paid to the Employee within 90 days after the close of
the year in respect of which the Pro Rata Share of the Annual Bonus is
payable.
(g) Date of Termination.
------------------- As used in this Agreement, the term
"Date of Termination" shall mean (i) if the Employee's employment is terminated
by his death, the date of this death, (ii) if the Employee's employment is
terminated for Cause, the date on which Notice of Termination is given as
contemplated by Section 6(e), and (iii) if the Employee's employment is
terminated Without Cause, due to the Employee's Disability or by the Employee
for Good Reason, 30 days after the date on which Notice of Termination is given
as contemplated by Section 6(d) or, if no such Notice is given, 30 days after
the date of termination of employment.
(h) Condition to Payments.
--------------------- The Employer's obligation to make
6
<PAGE>
any payments hereunder shall be conditioned upon the Employer's receipt of an
appropriately signed "General Release and Covenant Not to Sue" in form and
substance satisfactory to the Employer.
7. Unauthorized Disclosure.
----------------------- During and after the term of his employment
hereunder, the Employee shall not, without the written consent of Employer's
Board or a person authorized thereby, disclose to any person (other than an
employee or director of the Employer or its affiliates, or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Employee of his duties as an executive of the Employer) any
confidential or proprietary information, knowledge or data that is not
theretofore publicly known and in the public domain obtained by him while in the
employ of the Employer with respect to the Employer or any of its subsidiaries
or affiliates or with respect to any products, improvements, formulas, recipes,
designs, processes, customers, methods of distribution, operation or
manufacture, sales, prices, profits, costs, contracts, suppliers, business
prospects, business methods, techniques, research, trade secrets or know-how of
the Employer or any of its subsidiaries or affiliates (collectively,
"Proprietary Information"), except as may be required by law or in connection
with any judicial or administrative proceedings or inquiry.
8. Non-Competition.
--------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee shall not engage directly or indirectly in, become employed by, serve
as an agent or consultant to, or become a partner, principal or stockholder of,
any partnership, corporation or other entity which competes with a business that
represents 5% or more of the aggregate gross revenues of the Employer and its
subsidiaries and which is then engaged in such competition in any geographical
area in which the Employer or any of its subsidiaries is then engaged in such
business, provided that the Employee's ownership of less than 1% of the issued
and outstanding stock of any corporation whose stock is traded on an established
securities market shall not constitute competition with the Employer.
9. Non-Interference.
---------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee will not, directly or indirectly, for his own account or the account of
any other person or entity, (a) employ in a business of the kind in which the
Employer is engaged on the date of such termination, or solicit or endeavor to
entice away from the Employer, or otherwise intentionally interfere with the
Employer's relationship with, any person or entity who or which is at the time
employed by or otherwise engaged to perform services for the Employer or (b)
intentionally interfere with the Employer's relationship with any person or
7
<PAGE>
entity who or which is, or has been within the previous year, a customer, client
or supplier of the Employer.
10. Return of Documents.
--------------------- In the event of the termination of the
Employee's employment for any reason, the Employee will deliver to the Employer
all non-personal documents and data of any nature pertaining to his work with
the Employer, and he will not take with him any documents or data of any
description or any reproduction thereof, or any documents containing or
pertaining to any Proprietary Information.
11. Assumption of Agreement.
------------------------ The Employer will require any successor
(by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Employer, by agreement in form and substance
reasonably satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as the Employee would be entitled hereunder if the Employer terminated his
employment Without Cause as contemplated by Section 6, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
12. Entire Agreement.
---------------- Except as otherwise expressly provided herein,
this Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and all promises, representations,
understandings, arrangements and prior agreements relating to such subject
matter (including those made to or with the Employee by any other person or
entity) are merged herein and superseded hereby.
13. Indemnification.
--------------- The Employer agrees that it shall indemnify and
hold harmless the Employee to the fullest extent permitted by Delaware law from
and against any and all liabilities, costs, claims and expenses arising out of
the employment of the Employee hereunder, except to the extent arising out of or
based upon the gross negligence or willful misconduct of the Employee.
14. No Mitigation.
-------------- The Employee shall not be required to mitigate the
amount of any payment that the Employer becomes obligated to make in connection
with this Agreement, by seeking other employment or otherwise.
15. Miscellaneous.
-------------
(a) Binding Effect.
--------------- This Agreement shall be binding on and
inure to the benefit of the Employer and its successors and permitted assigns.
This Agreement shall also be binding on and inure to the benefit of the Employee
and his heirs, executors, administrators and legal representatives.
8
<PAGE>
(b) Governing Law.
-------------- This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware without
reference to principles of conflict of laws.
(c) Taxes.
----- The Employer may withhold from any payments made
under the Agreement all federal, state, city or other applicable taxes or social
security governmental regulation or ruling.
(d) Amendments.
---------- No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by Employer's Board or a person authorized thereby and is agreed to in
writing by the Employee and such officer as may be specifically designated by
Employer's Board. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No waiver of any provision of this Agreement shall be implied
from any course of dealing between or among the parties hereto or from any
failure by any party hereto to assert its rights hereunder on any occasion or
series of occasions.
(e) Severability.
------------ In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(f) Notices.
------- Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii) deemed to have
been received on the date of delivery or on the third business day after the
mailing thereof, and (iv) addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) if to the Employer or Group, to it at:
One Lexmark Centre Drive
740 New Circle Road N.W.
Lexington, Kentucky 40550
Attention: General Counsel
---------
(B) if to the Employee, to him at the address
listed on the signature page hereof.
9
<PAGE>
(g) Survival.
-------- Sections 7, 8, 9 and 10 and, if the Employee's
employment terminates in a manner giving rise to a payment under Section 6(f),
Section 6(f) shall survive the termination of the employment of the Employee
hereunder.
(h) Counterparts.
------------ This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(i) Headings.
-------- The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, the Employer and Group have duly executed this
Agreement by their authorized representatives and the Employee has hereunto set
his hand, in each case effective as of the date first above written.
LEXMARK INTERNATIONAL, INC.
By: /s/ Kathleen J. Affeldt
-----------------------
Kathleen J. Affeldt
Vice President of Human Resources
LEXMARK INTERNATIONAL GROUP, INC.
By: /s/ Kathleen J. Affeldt
-----------------------
Kathleen J. Affeldt
Vice President of Human Resources
THE EMPLOYEE:
/s/ Marvin L. Mann
------------------
Address:
10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of March 18, 1997,
among Lexmark International, Inc., a Delaware corporation (the "Employer"),
Lexmark International Group, Inc., a Delaware corporation ("Group"), and Paul J.
Curlander (the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer, Group and Employee previously entered into an
Employment Agreement dated as of October 1, 1995 (the "Original Employment
Agreement"); and
WHEREAS, Employer, Group and Employee desire to amend and restate the
Original Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the parties hereto hereby agree to amend and restate the Original
Employment Agreement in its entirety as follows:
1. Term; Position and Responsibilities.
-----------------------------------
(a) Term of Employment.
------------------ Unless the Employee's employment shall sooner
terminate pursuant to Section 6, the Employer shall employ the Employee for a
term commencing on April 1, 1997 and ending on March 31, 2001 (the "Initial
Term"), and the Employee's employment shall continue thereafter at will.
(b) Position and Responsibilities.
----------------------------- The Employee will serve as President
and Chief Operating Officer and in such other executive capacity or capacities
as may be determined from time to time by or under the authority of the Board of
Directors of the Employer ("Employer's Board"), and the Employee will devote all
of his skill, knowledge and working time (except for reasonable vacation time
and absence for sickness or similar disability) to the conscientious performance
of his duties. The Employee represents that he is entering into this Agreement
voluntarily and that his employment hereunder and compliance by him with the
terms and conditions of this Agreement will not conflict with or result in the
breach of any agreement to which he is a party or by which he may be bound.
2. Base Salary.
----------- As compensation for the services to be performed by the
Employee hereunder, the Employer will pay the Employee an annual base salary of
$475,000 during the term of his employment hereunder. The Employer will review
the Employee's base salary from time to time during the period of his employment
<PAGE>
hereunder and, in the discretion of the Employer, may increase such base salary
from time to time based upon the performance of the Employee, the financial
condition of the Employer, prevailing industry salary scales and such other
factors as the Employer shall consider relevant. (The annual base salary payable
to the Employee under this Section 2, as the same may be increased from time to
time, shall hereinafter be referred to as the "Base Salary".) The Base Salary
payable under this Section 2 shall be reduced to the extent that the Employee
elects to defer such Base Salary under the terms of any deferred compensation or
savings plan maintained or established by the Employer or Group, provided that
any such reduction of the Base Salary shall not be taken into account for
purposes of calculating the Base Amount (as defined in Section 3). The Employer
shall pay the Employee the Base Salary in bi-weekly installments, or in such
other installments as may be mutually agreed upon by the Employer and the
Employee.
3. Short-Term Incentive Compensation.
----------------------------------- The Employee shall receive an
annual incentive bonus award (the "Annual Bonus") for each calendar year ending
during the term of the Employee's employment hereunder equal to:
(a) if the Operating Result (as defined below) for such year
is equal to or greater than the Maximum Operating Target (as defined
below) for such year, 160% of the amount of the Employee's Base Salary
paid to the Employee during the calendar year for which such bonus is
payable (such amount is hereinafter referred to as the "Base Amount");
(b) if the Operating Result for such year is greater than the
Operating Target but less than the Maximum Operating Target for such
year, 75% of the Base Amount plus, for each increase of 1/25 of the
difference between the Operating Target and the Maximum Operating
Target, an additional 3.4% of the Base Amount;
(c) if the Operating Result for such year is equal to 100% of
the Operating Target for such year, 75% of the Base Amount;
(d) if the Operating Result for such year is greater than the
Minimum Operating Target (as defined below) but less than the Operating
Target for such year, 30% of the Base Amount plus, for each increase of
1/20 of the difference between the Minimum Operating Target and the
Operating Target (100%), an additional 2.25% of the Base Amount; and
(e) if the Operating Result for such year is equal to the
Minimum Operating Target for such year, 30% of the Base Amount.
No Annual Bonus shall be paid if the Operating Result is less than the Minimum
Operating Target for such year. The "Operating Target", the "Maximum Operating
Target" and the "Minimum Operating Target" in any year shall be jointly
2
<PAGE>
established by the Chief Executive Officer of the Employer and Employer's Board.
The "Operating Result" for any year shall be equal to the annual financial
results for the components that make up the Operating Target as of December 31
in such year, using United States generally accepted accounting principles
consistently applied and taking into account such other factors as may be
approved by Employer's Board. The Annual Bonus, if any, shall be paid as soon as
practicable after the close of the year for which the Annual Bonus is payable,
unless the Employee elects to defer such amounts under the terms of any deferred
compensation or savings plan maintained or established by the Employer or Group.
4. Employee Benefits.
------------------ During the term of the Employee's employment
hereunder, employee benefits, including life, medical, dental and disability
insurance, will be provided to the Employee in accordance with programs at the
Employer then available to executive employees. The Employee shall also be
entitled to participate in all of Employer's profit sharing, pension,
retirement, deferred compensation and savings plans, as the same may be amended
and in effect from time to time, at levels and having interests commensurate
with the Employee's then current period of service, compensation and position.
5. Perquisites and Expenses.
------------------------
(a) General.
------- During the term of the Employee's employment
hereunder, the Employee shall be entitled to participate in any special benefit
or perquisite program available from time to time to executive employees of the
Employer on the terms and conditions then prevailing under such program.
(b) Business Travel, Lodging, etc.
----------------------------------- The Employer shall
reimburse the Employee for reasonable travel, lodging and meal expenses incurred
by him in connection with his performance of services hereunder upon submission
of evidence, satisfactory to the Employer, of the incurrence and purpose of each
such expense.
6. Termination of Employment.
-------------------------
(a) Termination Due to Death or Disability.
-------------------------------------- In the event that
the Employee's employment hereunder terminates due to death or is terminated by
the Employer due to the Employee's Disability (as defined below), no termination
benefits shall be payable to or in respect of the Employee except as provided in
Section 6(f)(ii). For purposes of this Agreement, "Disability" shall mean a
physical or mental disability that prevents the performance by the Employee of
his duties hereunder lasting (or likely to last, based on competent medical
evidence presented to Employer's Board) for a continuous period of six months or
longer. The reasoned and good faith judgment of Employer's Board as to the
Employee's Disability shall be final and shall be based on such competent
medical evidence as shall be presented to it by the Employee or by any physician
or group of physicians or other competent medical experts employed by the
3
<PAGE>
Employee or the Employer to advise Employer's Board.
(b) Termination by the Employer for Cause.
------------------------------------- The Employee may be
terminated for Cause by the Employer. "Cause" shall mean (i) the willful failure
of the Employee substantially to perform his duties hereunder (other than any
such failure due to physical or mental illness) after a demand for substantial
performance is delivered to the Employee by the executive to which the Employee
reports or by Employer's Board, which notice identifies the manner in which such
executive or Employer's Board, as the case may be, believes that the Employee
has not substantially performed his duties, (ii) the Employee's engaging in
willful and serious misconduct that is injurious to Group or Employer or any of
their subsidiaries, (iii) the Employee's conviction of, or entering a plea of
nolo contendere to, a crime that constitutes a felony, or (iv) the willful and
material breach by the Employee of any of his obligations hereunder, or the
willful and material breach by the Employee of any written covenant or agreement
with the Employer or any of its affiliates not to disclose any information
pertaining to the Employer or any of its affiliates or not to compete or
interfere with the Employer or any of its affiliates.
(c) Termination Without Cause.
-------------------------- A termination "Without Cause"
shall mean a termination of employment by the Employer other than due to
Disability as defined in Section 6(a) or Cause as defined in Section 6(b).
(d) Termination by the Employee.
---------------------------- The Employee may terminate
his employment for "Good Reason". "Good Reason" shall mean a termination of
employment by the Employee within 30 days following (i) any assignment to the
Employee of any duties, functions or responsibilities that are significantly
different from, and result in a substantial diminution of, the duties, functions
or responsibilities that the Employee has on the date hereof or (ii) the failure
of the Employer to obtain the assumption of this Agreement by any successor as
contemplated by Section 11.
(e) Notice of Termination.
---------------------- Any termination by the Employer
pursuant to Section 6(a), 6(b) or 6(c), or by the Employee pursuant to Section
6(d), shall be communicated by a written "Notice of Termination" addressed to
the other parties to this Agreement. A "Notice of Termination" shall mean a
notice stating that the Employee's employment hereunder has been or will be
terminated, indicating the specific termination provisions in this Agreement
relied upon and setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination of employment.
(f) Payments Upon Certain Terminations.
----------------------------------
(i) In the event of a termination of the Employee's employment
Without Cause or a termination by the Employee of his employment for
Good Reason, the Employer shall pay to the Employee (A) (1) the greater
of (x) his Base Salary, if any, for the period from the Date of
Termination through the last day of the Initial Term, provided that
4
<PAGE>
Employer may, at any time, pay to the Employee in a single lump sum an
amount equal to the Base Salary remaining to be paid to the Employee as
of the date of such lump sum payment and (y) an amount equal to one
year's Base Salary, less (2) any amounts paid or to be paid to the
Employee under the terms of any severance plan or program of Employer,
if any, as in effect on the Date of Termination and (B) a Pro Rata
Share of the Annual Bonus (as defined below). If the Employee's
employment shall terminate and he is entitled to receive salary
continuation payments under this Section 6(f)(i), and if the Employee
obtains new employment, any salary continuation payments to which the
Employee may be entitled pursuant to this Section 6(f)(i) shall be
reduced or canceled to the extent that the Employee receives salary and
other cash compensation from such employment. Any benefits payable to
the Employee under any otherwise applicable plans, policies and
practices of Employer shall not be limited by this provision.
(ii) If the Employee's employment shall terminate upon his
death or Disability or if Employer shall terminate the Employee's
employment for Cause, Employer shall pay the Employee his full Base
Salary through the Date of Termination, plus, in the case of
termination upon the Employee's death or Disability, a Pro Rata Share
of the Annual Bonus. Any benefits payable to or in respect of the
Employee under any otherwise applicable plans, policies and practices
of the Employer shall not be limited by this provision.
(iii) For purposes of this Section 6, the "Pro Rata Share of
the Annual Bonus" shall be calculated and paid as follows. If the
Employee is terminated prior to July 1 of any year, the Pro Rata Share
of the Annual Bonus (A) will be equal to the product of (1) the Annual
Bonus, calculated assuming that 100% of the Operating Target is
achieved in such year, and (2) a fraction equal to the number of full
months in such year prior to the Date of Termination over 12, and (B)
will be paid to the Employee within 30 days after the Date of
Termination. If the Employee is terminated on or after July 1 of any
year, the Pro Rata Share of the Annual Bonus (A) will be equal to the
product of (1) the Annual Bonus, calculated based on the actual
Operating Result for such year, and (2) a fraction equal to the number
of full months in such year prior to the Date of Termination over 12,
and (B) will be paid to the Employee within 90 days after the close of
the year in respect of which the Pro Rata Share of the Annual Bonus is
payable.
(g) Date of Termination.
------------------- As used in this Agreement, the term
"Date of Termination" shall mean (i) if the Employee's employment is terminated
by his death, the date of this death, (ii) if the Employee's employment is
terminated for Cause, the date on which Notice of Termination is given as
contemplated by Section 6(e), and (iii) if the Employee's employment is
terminated Without Cause, due to the Employee's Disability or by the Employee
for Good Reason, 30 days after the date on which Notice of Termination is given
as contemplated by Section 6(d) or, if no such Notice is given, 30 days after
the date of termination of employment.
5
<PAGE>
(h) Condition to Payments.
--------------------- The Employer's obligation to make
any payments hereunder shall be conditioned upon the Employer's receipt of an
appropriately signed "General Release and Covenant Not to Sue" in form and
substance satisfactory to the Employer.
7. Unauthorized Disclosure.
----------------------- During and after the term of his employment
hereunder, the Employee shall not, without the written consent of Employer's
Board or a person authorized thereby, or the Chief Executive Officer of the
Employer, disclose to any person (other than an employee or director of the
Employer or its affiliates, or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Employee of
his duties as an executive of the Employer) any confidential or proprietary
information, knowledge or data that is not theretofore publicly known and in the
public domain obtained by him while in the employ of the Employer with respect
to the Employer or any of its subsidiaries or affiliates or with respect to any
products, improvements, formulas, recipes, designs, processes, customers,
methods of distribution, operation or manufacture, sales, prices, profits,
costs, contracts, suppliers, business prospects, business methods, techniques,
research, trade secrets or know-how of the Employer or any of its subsidiaries
or affiliates (collectively, "Proprietary Information"), except as may be
required by law or in connection with any judicial or administrative proceedings
or inquiry.
8. Non-Competition.
--------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee shall not engage directly or indirectly in, become employed by, serve
as an agent or consultant to, or become a partner, principal or stockholder of,
any partnership, corporation or other entity which competes with a business that
represents 5% or more of the aggregate gross revenues of the Employer and its
subsidiaries and which is then engaged in such competition in any geographical
area in which the Employer or any of its subsidiaries is then engaged in such
business, provided that the Employee's ownership of less than 1% of the issued
and outstanding stock of any corporation whose stock is traded on an established
securities market shall not constitute competition with the Employer.
9. Non-Interference.
---------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee will not, directly or indirectly, for his own account or the account of
any other person or entity, (a) employ in a business of the kind in which the
Employer is engaged on the date of such termination, or solicit or endeavor to
entice away from the Employer, or otherwise intentionally interfere with the
Employer's relationship with, any person or entity who or which is at the time
employed by or otherwise engaged to perform services for the Employer or (b)
6
<PAGE>
intentionally interfere with the Employer's relationship with any person or
entity who or which is, or has been within the previous year, a customer, client
or supplier of the Employer.
10. Return of Documents.
--------------------- In the event of the termination of the
Employee's employment for any reason, the Employee will deliver to the Employer
all non-personal documents and data of any nature pertaining to his work with
the Employer, and he will not take with him any documents or data of any
description or any reproduction thereof, or any documents containing or
pertaining to any Proprietary Information.
11. Assumption of Agreement.
------------------------ The Employer will require any successor
(by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Employer, by agreement in form and substance
reasonably satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as the Employee would be entitled hereunder if the Employer terminated his
employment Without Cause as contemplated by Section 6, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
12. Entire Agreement.
---------------- Except as otherwise expressly provided herein,
this Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and all promises, representations,
understandings, arrangements and prior agreements relating to such subject
matter (including those made to or with the Employee by any other person or
entity) are merged herein and superseded hereby.
13. Indemnification.
--------------- The Employer agrees that it shall indemnify and
hold harmless the Employee to the fullest extent permitted by Delaware law from
and against any and all liabilities, costs, claims and expenses arising out of
the employment of the Employee hereunder, except to the extent arising out of or
based upon the gross negligence or willful misconduct of the Employee.
14. No Mitigation.
-------------- The Employee shall not be required to mitigate the
amount of any payment that the Employer becomes obligated to make in connection
with this Agreement, by seeking other employment or otherwise.
15. Miscellaneous.
-------------
(a) Binding Effect.
--------------- This Agreement shall be binding on and
inure to the benefit of the Employer and its successors and permitted assigns.
7
<PAGE>
This Agreement shall also be binding on and inure to the benefit of the Employee
and his heirs, executors, administrators and legal representatives.
(b) Governing Law.
-------------- This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware without
reference to principles of conflict of laws.
(c) Taxes.
----- The Employer may withhold from any payments made
under the Agreement all federal, state, city or other applicable taxes or social
security governmental regulation or ruling.
(d) Amendments.
---------- No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by Employer's Board or a person authorized thereby and is agreed to in
writing by the Employee and such officer as may be specifically designated by
Employer's Board. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No waiver of any provision of this Agreement shall be implied
from any course of dealing between or among the parties hereto or from any
failure by any party hereto to assert its rights hereunder on any occasion or
series of occasions.
(e) Severability.
------------ In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(f) Notices.
------- Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii) deemed to have
been received on the date of delivery or on the third business day after the
mailing thereof, and (iv) addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) if to the Employer or Group, to it at:
One Lexmark Centre Drive
740 New Circle Road N.W.
Lexington, Kentucky 40550
Attention: General Counsel
---------
(B) if to the Employee, to him at the address
listed on the signature page hereof.
8
<PAGE>
(g) Survival.
-------- Sections 7, 8, 9 and 10 and, if the Employee's
employment terminates in a manner giving rise to a payment under Section 6(f),
Section 6(f) shall survive the termination of the employment of the Employee
hereunder.
(h) Counterparts.
------------ This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(i) Headings.
-------- The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, the Employer and Group have duly executed this
Agreement by their authorized representatives and the Employee has hereunto set
his hand, in each case effective as of the date first above written.
LEXMARK INTERNATIONAL, INC.
By: /s/ Marvin L. Mann
------------------
Marvin L. Mann
Chairman of the Board and
Chief Executive Officer
LEXMARK INTERNATIONAL GROUP, INC.
By: /s/ Marvin L. Mann
------------------
Marvin L. Mann
Chairman of the Board and
Chief Executive Officer
THE EMPLOYEE:
/s/ Paul J. Curlander
---------------------
Address:
9
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT, dated as of March 18, 1997, among Lexmark
International, Inc., a Delaware corporation (the "Employer"), Lexmark
International Group, Inc., a Delaware corporation ("Group"), and Donald C.
Shropshire, Jr. (the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer, Group and Employee desire to enter into an
employment agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Term; Position and Responsibilities.
-----------------------------------
(a) Term of Employment.
------------------ Unless the Employee's employment shall sooner
terminate pursuant to Section 6, the Employer shall employ the Employee for a
term commencing on April 1, 1997 and ending on March 31, 1998 (the "Initial
Term"), and the Employee's employment shall continue thereafter at will.
(b) Position and Responsibilities.
------------------------------- The Employee will serve as Vice
President and General Manager and in such other executive capacity or capacities
as may be determined from time to time by or under the authority of the Board of
Directors of the Employer ("Employer's Board"), and the Employee will devote all
of his skill, knowledge and working time (except for reasonable vacation time
and absence for sickness or similar disability) to the conscientious performance
of his duties. The Employee represents that he is entering into this Agreement
voluntarily and that his employment hereunder and compliance by him with the
terms and conditions of this Agreement will not conflict with or result in the
breach of any agreement to which he is a party or by which he may be bound.
2. Base Salary.
----------- As compensation for the services to be performed by the
Employee hereunder, the Employer will pay the Employee an annual base salary of
$275,000 during the term of his employment hereunder. The Employer will review
the Employee's base salary from time to time during the period of his employment
hereunder and, in the discretion of the Employer, may increase such base salary
from time to time based upon the performance of the Employee, the financial
condition of the Employer, prevailing industry salary scales and such other
factors as the Employer shall consider relevant. (The annual base salary payable
to the Employee under this Section 2, as the same may be increased from time to
time, shall hereinafter be referred to as the "Base Salary".) The Base Salary
payable under this Section 2 shall be reduced to the extent that the Employee
<PAGE>
elects to defer such Base Salary under the terms of any deferred compensation or
savings plan maintained or established by the Employer or Group, provided that
any such reduction of the Base Salary shall not be taken into account for
purposes of calculating the Base Amount (as defined in Section 3). The Employer
shall pay the Employee the Base Salary in bi-weekly installments, or in such
other installments as may be mutually agreed upon by the Employer and the
Employee.
3. Short-Term Incentive Compensation.
----------------------------------- The Employee shall receive an
annual incentive bonus award (the "Annual Bonus") for each calendar year ending
during the term of the Employee's employment hereunder equal to:
(a) if the Operating Result (as defined below) for such year
is equal to or greater than the Maximum Operating Target (as defined
below) for such year, 140% of the amount of the Employee's Base Salary
paid to the Employee during the calendar year for which such bonus is
payable (such amount is hereinafter referred to as the "Base Amount");
(b) if the Operating Result for such year is greater than the
Operating Target but less than the Maximum Operating Target for such
year, 70% of the Base Amount plus, for each increase of 1/25 of the
difference between the Operating Target and the Maximum Operating
Target, an additional 2.8% of the Base Amount;
(c) if the Operating Result for such year is equal to 100% of
the Operating Target for such year, 70% of the Base Amount;
(d) if the Operating Result for such year is greater than the
Minimum Operating Target (as defined below) but less than the Operating
Target for such year, 30% of the Base Amount plus, for each increase of
1/20 of the difference between the Minimum Operating Target and the
Operating Target (100%), an additional 2.0% of the Base Amount; and
(e) if the Operating Result for such year is equal to the
Minimum Operating Target for such year, 30% of the Base Amount.
No Annual Bonus shall be paid if the Operating Result is less than the Minimum
Operating Target for such year. The "Operating Target", the "Maximum Operating
Target" and the "Minimum Operating Target" in any year shall be jointly
established by the Chief Executive Officer of the Employer and Employer's Board.
The "Operating Result" for any year shall be equal to the annual financial
results for the components that make up the Operating Target as of December 31
in such year, using United States generally accepted accounting principles
consistently applied and taking into account such other factors as may be
approved by Employer's Board. The Annual Bonus, if any, shall be paid as soon as
practicable after the close of the year for which the Annual Bonus is payable,
2
<PAGE>
unless the Employee elects to defer such amounts under the terms of any deferred
compensation or savings plan maintained or established by the Employer or Group.
4. Employee Benefits.
------------------ During the term of the Employee's employment
hereunder, employee benefits, including life, medical, dental and disability
insurance, will be provided to the Employee in accordance with programs at the
Employer then available to executive employees. The Employee shall also be
entitled to participate in all of Employer's profit sharing, pension,
retirement, deferred compensation and savings plans, as the same may be amended
and in effect from time to time, at levels and having interests commensurate
with the Employee's then current period of service, compensation and position.
5. Perquisites and Expenses.
------------------------
(a) General.
------- During the term of the Employee's employment
hereunder, the Employee shall be entitled to participate in any special benefit
or perquisite program available from time to time to executive employees of the
Employer on the terms and conditions then prevailing under such program.
(b) Business Travel, Lodging, etc.
---------------------------------- The Employer shall
reimburse the Employee for reasonable travel, lodging and meal expenses incurred
by him in connection with his performance of services hereunder upon submission
of evidence, satisfactory to the Employer, of the incurrence and purpose of each
such expense.
6. Termination of Employment.
-------------------------
(a) Termination Due to Death or Disability.
-------------------------------------- In the event that
the Employee's employment hereunder terminates due to death or is terminated by
the Employer due to the Employee's Disability (as defined below), no termination
benefits shall be payable to or in respect of the Employee except as provided in
Section 6(f)(ii). For purposes of this Agreement, "Disability" shall mean a
physical or mental disability that prevents the performance by the Employee of
his duties hereunder lasting (or likely to last, based on competent medical
evidence presented to Employer's Board) for a continuous period of six months or
longer. The reasoned and good faith judgment of Employer's Board as to the
Employee's Disability shall be final and shall be based on such competent
medical evidence as shall be presented to it by the Employee or by any physician
or group of physicians or other competent medical experts employed by the
Employee or the Employer to advise Employer's Board.
(b) Termination by the Employer for Cause.
------------------------------------- The Employee may be
terminated for Cause by the Employer. "Cause" shall mean (i) the willful failure
of the Employee substantially to perform his duties hereunder (other than any
such failure due to physical or mental illness) after a demand for substantial
3
<PAGE>
performance is delivered to the Employee by the executive to which the Employee
reports or by Employer's Board, which notice identifies the manner in which such
executive or Employer's Board, as the case may be, believes that the Employee
has not substantially performed his duties, (ii) the Employee's engaging in
willful and serious misconduct that is injurious to Group or Employer or any of
their subsidiaries, (iii) the Employee's conviction of, or entering a plea of
nolo contendere to, a crime that constitutes a felony, or (iv) the willful and
material breach by the Employee of any of his obligations hereunder, or the
willful and material breach by the Employee of any written covenant or agreement
with the Employer or any of its affiliates not to disclose any information
pertaining to the Employer or any of its affiliates or not to compete or
interfere with the Employer or any of its affiliates.
(c) Termination Without Cause.
-------------------------- A termination "Without Cause"
shall mean a termination of employment by the Employer other than due to
Disability as defined in Section 6(a) or Cause as defined in Section 6(b).
(d) Termination by the Employee.
---------------------------- The Employee may terminate
his employment for "Good Reason". "Good Reason" shall mean a termination of
employment by the Employee within 30 days following (i) any assignment to the
Employee of any duties, functions or responsibilities that are significantly
different from, and result in a substantial diminution of, the duties, functions
or responsibilities that the Employee has on the date hereof or (ii) the failure
of the Employer to obtain the assumption of this Agreement by any successor as
contemplated by Section 11.
(e) Notice of Termination.
---------------------- Any termination by the Employer
pursuant to Section 6(a), 6(b) or 6(c), or by the Employee pursuant to Section
6(d), shall be communicated by a written "Notice of Termination" addressed to
the other parties to this Agreement. A "Notice of Termination" shall mean a
notice stating that the Employee's employment hereunder has been or will be
terminated, indicating the specific termination provisions in this Agreement
relied upon and setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination of employment.
(f) Payments Upon Certain Terminations.
----------------------------------
(i) In the event of a termination of the Employee's employment
Without Cause or a termination by the Employee of his employment for
Good Reason, the Employer shall pay to the Employee (A) (1) the greater
of (x) his Base Salary, if any, for the period from the Date of
Termination through the last day of the Initial Term, provided that
Employer may, at any time, pay to the Employee in a single lump sum an
amount equal to the Base Salary remaining to be paid to the Employee as
of the date of such lump sum payment and (y) an amount equal to one
year's Base Salary, less (2) any amounts paid or to be paid to the
Employee under the terms of any severance plan or program of Employer,
if any, as in effect on the Date of Termination and (B) a Pro Rata
4
<PAGE>
Share of the Annual Bonus (as defined below). If the Employee's
employment shall terminate and he is entitled to receive salary
continuation payments under this Section 6(f)(i), and if the Employee
obtains new employment, any salary continuation payments to which the
Employee may be entitled pursuant to this Section 6(f)(i) shall be
reduced or canceled to the extent that the Employee receives salary and
other cash compensation from such employment. Any benefits payable to
the Employee under any otherwise applicable plans, policies and
practices of Employer shall not be limited by this provision.
(ii) If the Employee's employment shall terminate upon his
death or Disability or if Employer shall terminate the Employee's
employment for Cause, Employer shall pay the Employee his full Base
Salary through the Date of Termination, plus, in the case of
termination upon the Employee's death or Disability, a Pro Rata Share
of the Annual Bonus. Any benefits payable to or in respect of the
Employee under any otherwise applicable plans, policies and practices
of the Employer shall not be limited by this provision.
(iii) For purposes of this Section 6, the "Pro Rata Share of
the Annual Bonus" shall be calculated and paid as follows. If the
Employee is terminated prior to July 1 of any year, the Pro Rata Share
of the Annual Bonus (A) will be equal to the product of (1) the Annual
Bonus, calculated assuming that 100% of the Operating Target is
achieved in such year, and (2) a fraction equal to the number of full
months in such year prior to the Date of Termination over 12, and (B)
will be paid to the Employee within 30 days after the Date of
Termination. If the Employee is terminated on or after July 1 of any
year, the Pro Rata Share of the Annual Bonus (A) will be equal to the
product of (1) the Annual Bonus, calculated based on the actual
Operating Result for such year, and (2) a fraction equal to the number
of full months in such year prior to the Date of Termination over 12,
and (B) will be paid to the Employee within 90 days after the close of
the year in respect of which the Pro Rata Share of the Annual Bonus is
payable.
(g) Date of Termination.
------------------- As used in this Agreement, the term
"Date of Termination" shall mean (i) if the Employee's employment is terminated
by his death, the date of this death, (ii) if the Employee's employment is
terminated for Cause, the date on which Notice of Termination is given as
contemplated by Section 6(e), and (iii) if the Employee's employment is
terminated Without Cause, due to the Employee's Disability or by the Employee
for Good Reason, 30 days after the date on which Notice of Termination is given
as contemplated by Section 6(d) or, if no such Notice is given, 30 days after
the date of termination of employment.
(h) Condition to Payments.
--------------------- The Employer's obligation to make
any payments hereunder shall be conditioned upon the Employer's receipt of an
appropriately signed "General Release and Covenant Not to Sue" in form and
substance satisfactory to the Employer.
5
<PAGE>
7. Unauthorized Disclosure.
----------------------- During and after the term of his employment
hereunder, the Employee shall not, without the written consent of Employer's
Board or a person authorized thereby, or the Chief Executive Officer of the
Employer, disclose to any person (other than an employee or director of the
Employer or its affiliates, or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Employee of
his duties as an executive of the Employer) any confidential or proprietary
information, knowledge or data that is not theretofore publicly known and in the
public domain obtained by him while in the employ of the Employer with respect
to the Employer or any of its subsidiaries or affiliates or with respect to any
products, improvements, formulas, recipes, designs, processes, customers,
methods of distribution, operation or manufacture, sales, prices, profits,
costs, contracts, suppliers, business prospects, business methods, techniques,
research, trade secrets or know-how of the Employer or any of its subsidiaries
or affiliates (collectively, "Proprietary Information"), except as may be
required by law or in connection with any judicial or administrative proceedings
or inquiry.
8. Non-Competition.
--------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee shall not engage directly or indirectly in, become employed by, serve
as an agent or consultant to, or become a partner, principal or stockholder of,
any partnership, corporation or other entity which competes with a business that
represents 5% or more of the aggregate gross revenues of the Employer and its
subsidiaries and which is then engaged in such competition in any geographical
area in which the Employer or any of its subsidiaries is then engaged in such
business, provided that the Employee's ownership of less than 1% of the issued
and outstanding stock of any corporation whose stock is traded on an established
securities market shall not constitute competition with the Employer.
9. Non-Interference.
---------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee will not, directly or indirectly, for his own account or the account of
any other person or entity, (a) employ in a business of the kind in which the
Employer is engaged on the date of such termination, or solicit or endeavor to
entice away from the Employer, or otherwise intentionally interfere with the
Employer's relationship with, any person or entity who or which is at the time
employed by or otherwise engaged to perform services for the Employer or (b)
intentionally interfere with the Employer's relationship with any person or
entity who or which is, or has been within the previous year, a customer, client
or supplier of the Employer.
10. Return of Documents.
--------------------- In the event of the termination of the
Employee's employment for any reason, the Employee will deliver to the Employer
6
<PAGE>
all non-personal documents and data of any nature pertaining to his work with
the Employer, and he will not take with him any documents or data of any
description or any reproduction thereof, or any documents containing or
pertaining to any Proprietary Information.
11. Assumption of Agreement.
------------------------ The Employer will require any successor
(by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Employer, by agreement in form and substance
reasonably satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as the Employee would be entitled hereunder if the Employer terminated his
employment Without Cause as contemplated by Section 6, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
12. Entire Agreement.
---------------- Except as otherwise expressly provided herein,
this Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and all promises, representations,
understandings, arrangements and prior agreements relating to such subject
matter (including those made to or with the Employee by any other person or
entity) are merged herein and superseded hereby.
13. Indemnification.
--------------- The Employer agrees that it shall indemnify and
hold harmless the Employee to the fullest extent permitted by Delaware law from
and against any and all liabilities, costs, claims and expenses arising out of
the employment of the Employee hereunder, except to the extent arising out of or
based upon the gross negligence or willful misconduct of the Employee.
14. No Mitigation.
-------------- The Employee shall not be required to mitigate the
amount of any payment that the Employer becomes obligated to make in connection
with this Agreement, by seeking other employment or otherwise.
15. Miscellaneous.
-------------
(a) Binding Effect.
--------------- This Agreement shall be binding on and
inure to the benefit of the Employer and its successors and permitted assigns.
This Agreement shall also be binding on and inure to the benefit of the Employee
and his heirs, executors, administrators and legal representatives.
(b) Governing Law.
-------------- This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware without
reference to principles of conflict of laws.
7
<PAGE>
(c) Taxes.
----- The Employer may withhold from any payments made
under the Agreement all federal, state, city or other applicable taxes or social
security governmental regulation or ruling.
(d) Amendments.
---------- No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by Employer's Board or a person authorized thereby and is agreed to in
writing by the Employee and such officer as may be specifically designated by
Employer's Board. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No waiver of any provision of this Agreement shall be implied
from any course of dealing between or among the parties hereto or from any
failure by any party hereto to assert its rights hereunder on any occasion or
series of occasions.
(e) Severability.
------------ In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(f) Notices.
------- Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii) deemed to have
been received on the date of delivery or on the third business day after the
mailing thereof, and (iv) addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) if to the Employer or Group, to it at:
One Lexmark Centre Drive
740 New Circle Road N.W.
Lexington, Kentucky 40550
Attention: General Counsel
---------
(B) if to the Employee, to him at the address
listed on the signature page hereof.
(g) Survival.
-------- Sections 7, 8, 9 and 10 and, if the Employee's
employment terminates in a manner giving rise to a payment under Section 6(f),
Section 6(f) shall survive the termination of the employment of the Employee
hereunder.
(h) Counterparts.
------------ This Agreement may be executed in
8
<PAGE>
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(i) Headings.
-------- The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, the Employer and Group have duly executed this
Agreement by their authorized representatives and the Employee has hereunto set
his hand, in each case effective as of the date first above written.
LEXMARK INTERNATIONAL, INC.
By: /s/ Marvin L. Mann
------------------
Marvin L. Mann
Chairman of the Board and
Chief Executive Officer
LEXMARK INTERNATIONAL GROUP, INC.
By: /s/ Marvin L. Mann
------------------
Marvin L. Mann
Chairman of the Board and
Chief Executive Officer
THE EMPLOYEE:
/s/ Donald C. Shropshire
------------------------
Address:
9
April 1, 1997
Mr. John Stanley
9 Rue du Comte D'Orsay
78240 Chambourcy
FRANCE
Dear John:
I am pleased to reaffirm the terms and conditions upon which you are
employed as Chairman of Lexmark International, Ltd. and President and Chief
Executive of Lexmark Europe. All of the terms and conditions described in my
letter to you dated October 1, 1995 (the "Employment Agreement") are hereby
restated except for the following amendment. The second sentence of the first
paragraph on the second page of the Employment Agreement, "However, solely for
the purposes of calculating the payment to be made to you upon termination, we
agree to use, as further specified below, a period commencing on the date hereof
and ending on April 1, 1997 (the "Base Period")", shall be replaced in its
entirety by the following sentence:
However, solely for the purposes of calculating the payment to be made
to you upon termination, we agree to use, as further specified below, a
period commencing on April 1, 1997 and ending on March 31, 1998 (the
"Base Period").
Please acknowledge your acceptance of, and agreement with, the
foregoing by signing in the appropriate space below, and return a copy of this
letter to me.
/s/ Marvin L. Mann
------------------
Marvin L. Mann
ACCEPTED AND AGREED:
/s/ John Stanley
- ----------------
John Stanley
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT, dated as of March 18, 1997, among Lexmark
International, Inc., a Delaware corporation (the "Employer"), Lexmark
International Group, Inc., a Delaware corporation ("Group"), and Gary E.
Morin (the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer, Group and Employee desire to enter into an
employment agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Term; Position and Responsibilities.
-----------------------------------
(a) Term of Employment.
------------------ Unless the Employee's employment shall sooner
terminate pursuant to Section 6, the Employer shall employ the Employee for a
term commencing on April 1, 1997 and ending on March 31, 1998 (the "Initial
Term"), and the Employee's employment shall continue thereafter at will.
(b) Position and Responsibilities.
------------------------------- The Employee will serve as Vice
President and Chief Financial Officer and in such other executive capacity or
capacities as may be determined from time to time by or under the authority of
the Board of Directors of the Employer ("Employer's Board"), and the Employee
will devote all of his skill, knowledge and working time (except for reasonable
vacation time and absence for sickness or similar disability) to the
conscientious performance of his duties. The Employee represents that he is
entering into this Agreement voluntarily and that his employment hereunder and
compliance by him with the terms and conditions of this Agreement will not
conflict with or result in the breach of any agreement to which he is a party or
by which he may be bound.
2. Base Salary.
----------- As compensation for the services to be performed by the
Employee hereunder, the Employer will pay the Employee an annual base salary of
$250,000 during the term of his employment hereunder. The Employer will review
the Employee's base salary from time to time during the period of his employment
hereunder and, in the discretion of the Employer, may increase such base salary
from time to time based upon the performance of the Employee, the financial
condition of the Employer, prevailing industry salary scales and such other
factors as the Employer shall consider relevant. (The annual base salary payable
to the Employee under this Section 2, as the same may be increased from time to
time, shall hereinafter be referred to as the "Base Salary".) The Base Salary
payable under this Section 2 shall be reduced to the extent that the Employee
elects to defer such Base Salary under the terms of any deferred compensation or
<PAGE>
savings plan maintained or established by the Employer or Group, provided that
any such reduction of the Base Salary shall not be taken into account for
purposes of calculating the Base Amount (as defined in Section 3). The Employer
shall pay the Employee the Base Salary in bi-weekly installments, or in such
other installments as may be mutually agreed upon by the Employer and the
Employee.
3. Short-Term Incentive Compensation.
----------------------------------- The Employee shall receive an
annual incentive bonus award (the "Annual Bonus") for each calendar year ending
during the term of the Employee's employment hereunder equal to:
(a) if the Operating Result (as defined below) for such year
is equal to or greater than the Maximum Operating Target (as defined
below) for such year, 125% of the amount of the Employee's Base Salary
paid to the Employee during the calendar year for which such bonus is
payable (such amount is hereinafter referred to as the "Base Amount");
(b) if the Operating Result for such year is greater than the
Operating Target but less than the Maximum Operating Target for such
year, 65% of the Base Amount plus, for each increase of 1/25 of the
difference between the Operating Target and the Maximum Operating
Target, an additional 2.4% of the Base Amount;
(c) if the Operating Result for such year is equal to 100% of
the Operating Target for such year, 65% of the Base Amount;
(d) if the Operating Result for such year is greater than the
Minimum Operating Target (as defined below) but less than the Operating
Target for such year, 30% of the Base Amount plus, for each increase of
1/20 of the difference between the Minimum Operating Target and the
Operating Target (100%), an additional 1.75% of the Base Amount; and
(e) if the Operating Result for such year is equal to the
Minimum Operating Target for such year, 30% of the Base Amount.
No Annual Bonus shall be paid if the Operating Result is less than the Minimum
Operating Target for such year. The "Operating Target", the "Maximum Operating
Target" and the "Minimum Operating Target" in any year shall be jointly
established by the Chief Executive Officer of the Employer and Employer's Board.
The "Operating Result" for any year shall be equal to the annual financial
results for the components that make up the Operating Target as of December 31
in such year, using United States generally accepted accounting principles
consistently applied and taking into account such other factors as may be
approved by Employer's Board. The Annual Bonus, if any, shall be paid as soon as
practicable after the close of the year for which the Annual Bonus is payable,
unless the Employee elects to defer such amounts under the terms of any deferred
2
<PAGE>
compensation or savings plan maintained or established by the Employer or Group.
4. Employee Benefits.
------------------ During the term of the Employee's employment
hereunder, employee benefits, including life, medical, dental and disability
insurance, will be provided to the Employee in accordance with programs at the
Employer then available to executive employees. The Employee shall also be
entitled to participate in all of Employer's profit sharing, pension,
retirement, deferred compensation and savings plans, as the same may be amended
and in effect from time to time, at levels and having interests commensurate
with the Employee's then current period of service, compensation and position.
5. Perquisites and Expenses.
------------------------
(a) General.
------- During the term of the Employee's employment
hereunder, the Employee shall be entitled to participate in any special benefit
or perquisite program available from time to time to executive employees of the
Employer on the terms and conditions then prevailing under such program.
(b) Business Travel, Lodging, etc.
---------------------------------- The Employer shall
reimburse the Employee for reasonable travel, lodging and meal expenses incurred
by him in connection with his performance of services hereunder upon submission
of evidence, satisfactory to the Employer, of the incurrence and purpose of each
such expense.
6. Termination of Employment.
-------------------------
(a) Termination Due to Death or Disability.
-------------------------------------- In the event that
the Employee's employment hereunder terminates due to death or is terminated by
the Employer due to the Employee's Disability (as defined below), no termination
benefits shall be payable to or in respect of the Employee except as provided in
Section 6(f)(ii). For purposes of this Agreement, "Disability" shall mean a
physical or mental disability that prevents the performance by the Employee of
his duties hereunder lasting (or likely to last, based on competent medical
evidence presented to Employer's Board) for a continuous period of six months or
longer. The reasoned and good faith judgment of Employer's Board as to the
Employee's Disability shall be final and shall be based on such competent
medical evidence as shall be presented to it by the Employee or by any physician
or group of physicians or other competent medical experts employed by the
Employee or the Employer to advise Employer's Board.
(b) Termination by the Employer for Cause.
------------------------------------- The Employee may be
terminated for Cause by the Employer. "Cause" shall mean (i) the willful failure
of the Employee substantially to perform his duties hereunder (other than any
such failure due to physical or mental illness) after a demand for substantial
performance is delivered to the Employee by the executive to which the Employee
reports or by Employer's Board, which notice identifies the manner in which such
3
<PAGE>
executive or Employer's Board, as the case may be, believes that the Employee
has not substantially performed his duties, (ii) the Employee's engaging in
willful and serious misconduct that is injurious to Group or Employer or any of
their subsidiaries, (iii) the Employee's conviction of, or entering a plea of
nolo contendere to, a crime that constitutes a felony, or (iv) the willful and
material breach by the Employee of any of his obligations hereunder, or the
willful and material breach by the Employee of any written covenant or agreement
with the Employer or any of its affiliates not to disclose any information
pertaining to the Employer or any of its affiliates or not to compete or
interfere with the Employer or any of its affiliates.
(c) Termination Without Cause.
-------------------------- A termination "Without Cause"
shall mean a termination of employment by the Employer other than due to
Disability as defined in Section 6(a) or Cause as defined in Section 6(b).
(d) Termination by the Employee.
---------------------------- The Employee may terminate
his employment for "Good Reason". "Good Reason" shall mean a termination of
employment by the Employee within 30 days following (i) any assignment to the
Employee of any duties, functions or responsibilities that are significantly
different from, and result in a substantial diminution of, the duties, functions
or responsibilities that the Employee has on the date hereof or (ii) the failure
of the Employer to obtain the assumption of this Agreement by any successor as
contemplated by Section 11.
(e) Notice of Termination.
---------------------- Any termination by the Employer
pursuant to Section 6(a), 6(b) or 6(c), or by the Employee pursuant to Section
6(d), shall be communicated by a written "Notice of Termination" addressed to
the other parties to this Agreement. A "Notice of Termination" shall mean a
notice stating that the Employee's employment hereunder has been or will be
terminated, indicating the specific termination provisions in this Agreement
relied upon and setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for such termination of employment.
(f) Payments Upon Certain Terminations.
----------------------------------
(i) In the event of a termination of the Employee's employment
Without Cause or a termination by the Employee of his employment for
Good Reason, the Employer shall pay to the Employee (A) (1) the greater
of (x) his Base Salary, if any, for the period from the Date of
Termination through the last day of the Initial Term, provided that
Employer may, at any time, pay to the Employee in a single lump sum an
amount equal to the Base Salary remaining to be paid to the Employee as
of the date of such lump sum payment and (y) an amount equal to one
year's Base Salary, less (2) any amounts paid or to be paid to the
Employee under the terms of any severance plan or program of Employer,
if any, as in effect on the Date of Termination and (B) a Pro Rata
Share of the Annual Bonus (as defined below). If the Employee's
employment shall terminate and he is entitled to receive salary
continuation payments under this Section 6(f)(i), and if the Employee
4
<PAGE>
obtains new employment, any salary continuation payments to which the
Employee may be entitled pursuant to this Section 6(f)(i) shall be
reduced or canceled to the extent that the Employee receives salary and
other cash compensation from such employment. Any benefits payable to
the Employee under any otherwise applicable plans, policies and
practices of Employer shall not be limited by this provision.
(ii) If the Employee's employment shall terminate upon his
death or Disability or if Employer shall terminate the Employee's
employment for Cause, Employer shall pay the Employee his full Base
Salary through the Date of Termination, plus, in the case of
termination upon the Employee's death or Disability, a Pro Rata Share
of the Annual Bonus. Any benefits payable to or in respect of the
Employee under any otherwise applicable plans, policies and practices
of the Employer shall not be limited by this provision.
(iii) For purposes of this Section 6, the "Pro Rata Share of
the Annual Bonus" shall be calculated and paid as follows. If the
Employee is terminated prior to July 1 of any year, the Pro Rata Share
of the Annual Bonus (A) will be equal to the product of (1) the Annual
Bonus, calculated assuming that 100% of the Operating Target is
achieved in such year, and (2) a fraction equal to the number of full
months in such year prior to the Date of Termination over 12, and (B)
will be paid to the Employee within 30 days after the Date of
Termination. If the Employee is terminated on or after July 1 of any
year, the Pro Rata Share of the Annual Bonus (A) will be equal to the
product of (1) the Annual Bonus, calculated based on the actual
Operating Result for such year, and (2) a fraction equal to the number
of full months in such year prior to the Date of Termination over 12,
and (B) will be paid to the Employee within 90 days after the close of
the year in respect of which the Pro Rata Share of the Annual Bonus is
payable.
(g) Date of Termination.
------------------- As used in this Agreement, the term
"Date of Termination" shall mean (i) if the Employee's employment is terminated
by his death, the date of this death, (ii) if the Employee's employment is
terminated for Cause, the date on which Notice of Termination is given as
contemplated by Section 6(e), and (iii) if the Employee's employment is
terminated Without Cause, due to the Employee's Disability or by the Employee
for Good Reason, 30 days after the date on which Notice of Termination is given
as contemplated by Section 6(d) or, if no such Notice is given, 30 days after
the date of termination of employment.
(h) Condition to Payments.
--------------------- The Employer's obligation to make
any payments hereunder shall be conditioned upon the Employer's receipt of an
appropriately signed "General Release and Covenant Not to Sue" in form and
substance satisfactory to the Employer.
7. Unauthorized Disclosure.
----------------------- During and after the term of his employment
hereunder, the Employee shall not, without the written consent of Employer's
5
<PAGE>
Board or a person authorized thereby, or the Chief Executive Officer of the
Employer, disclose to any person (other than an employee or director of the
Employer or its affiliates, or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Employee of
his duties as an executive of the Employer) any confidential or proprietary
information, knowledge or data that is not theretofore publicly known and in the
public domain obtained by him while in the employ of the Employer with respect
to the Employer or any of its subsidiaries or affiliates or with respect to any
products, improvements, formulas, recipes, designs, processes, customers,
methods of distribution, operation or manufacture, sales, prices, profits,
costs, contracts, suppliers, business prospects, business methods, techniques,
research, trade secrets or know-how of the Employer or any of its subsidiaries
or affiliates (collectively, "Proprietary Information"), except as may be
required by law or in connection with any judicial or administrative proceedings
or inquiry.
8. Non-Competition.
--------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee shall not engage directly or indirectly in, become employed by, serve
as an agent or consultant to, or become a partner, principal or stockholder of,
any partnership, corporation or other entity which competes with a business that
represents 5% or more of the aggregate gross revenues of the Employer and its
subsidiaries and which is then engaged in such competition in any geographical
area in which the Employer or any of its subsidiaries is then engaged in such
business, provided that the Employee's ownership of less than 1% of the issued
and outstanding stock of any corporation whose stock is traded on an established
securities market shall not constitute competition with the Employer.
9. Non-Interference.
---------------- During the period of the Employee's employment and
thereafter for a period equal to the number of months providing the basis for
calculating any termination payments to the Employee under Section 6, if any
such payments are required, but in any event for at least 12 months, the
Employee will not, directly or indirectly, for his own account or the account of
any other person or entity, (a) employ in a business of the kind in which the
Employer is engaged on the date of such termination, or solicit or endeavor to
entice away from the Employer, or otherwise intentionally interfere with the
Employer's relationship with, any person or entity who or which is at the time
employed by or otherwise engaged to perform services for the Employer or (b)
intentionally interfere with the Employer's relationship with any person or
entity who or which is, or has been within the previous year, a customer, client
or supplier of the Employer.
10. Return of Documents.
--------------------- In the event of the termination of the
Employee's employment for any reason, the Employee will deliver to the Employer
all non-personal documents and data of any nature pertaining to his work with
the Employer, and he will not take with him any documents or data of any
6
<PAGE>
description or any reproduction thereof, or any documents containing or
pertaining to any Proprietary Information.
11. Assumption of Agreement.
------------------------ The Employer will require any successor
(by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Employer, by agreement in form and substance
reasonably satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as the Employee would be entitled hereunder if the Employer terminated his
employment Without Cause as contemplated by Section 6, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
12. Entire Agreement.
---------------- Except as otherwise expressly provided herein,
this Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and all promises, representations,
understandings, arrangements and prior agreements relating to such subject
matter (including those made to or with the Employee by any other person or
entity) are merged herein and superseded hereby.
13. Indemnification.
--------------- The Employer agrees that it shall indemnify and
hold harmless the Employee to the fullest extent permitted by Delaware law from
and against any and all liabilities, costs, claims and expenses arising out of
the employment of the Employee hereunder, except to the extent arising out of or
based upon the gross negligence or willful misconduct of the Employee.
14. No Mitigation.
-------------- The Employee shall not be required to mitigate the
amount of any payment that the Employer becomes obligated to make in connection
with this Agreement, by seeking other employment or otherwise.
15. Miscellaneous.
-------------
(a) Binding Effect.
--------------- This Agreement shall be binding on and
inure to the benefit of the Employer and its successors and permitted assigns.
This Agreement shall also be binding on and inure to the benefit of the Employee
and his heirs, executors, administrators and legal representatives.
(b) Governing Law.
-------------- This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware without
reference to principles of conflict of laws.
(c) Taxes.
----- The Employer may withhold from any payments made
7
<PAGE>
under the Agreement all federal, state, city or other applicable taxes or social
security governmental regulation or ruling.
(d) Amendments.
---------- No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by Employer's Board or a person authorized thereby and is agreed to in
writing by the Employee and such officer as may be specifically designated by
Employer's Board. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No waiver of any provision of this Agreement shall be implied
from any course of dealing between or among the parties hereto or from any
failure by any party hereto to assert its rights hereunder on any occasion or
series of occasions.
(e) Severability.
------------ In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(f) Notices.
------- Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii) deemed to have
been received on the date of delivery or on the third business day after the
mailing thereof, and (iv) addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
(A) if to the Employer or Group, to it at:
One Lexmark Centre Drive
740 New Circle Road N.W.
Lexington, Kentucky 40550
Attention: General Counsel
---------
(B) if to the Employee, to him at the address
listed on the signature page hereof.
(g) Survival.
-------- Sections 7, 8, 9 and 10 and, if the Employee's
employment terminates in a manner giving rise to a payment under Section 6(f),
Section 6(f) shall survive the termination of the employment of the Employee
hereunder.
(h) Counterparts.
------------ This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
8
<PAGE>
together shall constitute one and the same instrument.
(i) Headings.
-------- The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
IN WITNESS WHEREOF, the Employer and Group have duly executed this
Agreement by their authorized representatives and the Employee has hereunto set
his hand, in each case effective as of the date first above written.
LEXMARK INTERNATIONAL, INC.
By: /s/ Marvin L. Mann
------------------
Marvin L. Mann
Chairman of the Board and
Chief Executive Officer
LEXMARK INTERNATIONAL GROUP, INC.
By: /s/ Marvin L. Mann
------------------
Marvin L. Mann
Chairman of the Board and
Chief Executive Officer
THE EMPLOYEE:
/s/ Gary E. Morin
-----------------
Address:
9
CREDIT AGREEMENT
dated as of January 27, 1998
among
LEXMARK INTERNATIONAL GROUP, INC., as Parent Guarantor
LEXMARK INTERNATIONAL, INC., as Borrower
The Lenders Party Hereto
FLEET NATIONAL BANK,
as Documentation Agent
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent
THE CHASE MANHATTAN BANK,
as Administrative Agent
$300,000,000
REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions 1
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 18
SECTION 1.03. Terms Generally 18
SECTION 1.04. Accounting Terms; GAAP 18
SECTION 1.05. Pro Forma Calculations 19
SECTION 1.06. Currency Conversion 19
ARTICLE II
The Credits 19
SECTION 2.01. Commitments 19
SECTION 2.02. Loans and Borrowings 19
SECTION 2.03. Requests for Revolving Borrowings 20
SECTION 2.04. Competitive Bid Procedure 21
SECTION 2.05. Swingline Loans 22
SECTION 2.06. Letters of Credit 23
SECTION 2.07. Funding of Borrowings 27
SECTION 2.08. Interest Elections 27
SECTION 2.09. Termination and Reduction of Commitments 28
SECTION 2.10. Repayment of Loans; Evidence of Debt 29
SECTION 2.11. Prepayment of Loans 30
SECTION 2.12. Fees 30
SECTION 2.13. Interest 31
SECTION 2.14. Alternate Rate of Interest 32
SECTION 2.15. Increased Costs 33
SECTION 2.16. Break Funding Payments 34
SECTION 2.17. Taxes 34
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs 35
SECTION 2.19. Mitigation Obligations; Replacement of Lenders 36
SECTION 2.20. Commitment Increases 37
ARTICLE III
Representations and Warranties 38
SECTION 3.01. Organization; Powers 38
SECTION 3.02. Authorization; Enforceability 38
-i-
<PAGE>
SECTION 3.03. Governmental Approvals; No Conflicts 38
SECTION 3.04. Financial Condition; No Material Adverse Change 39
SECTION 3.05. Properties; Intellectual Property; Subsidiaries 39
SECTION 3.06. Litigation and Environmental Matters 39
SECTION 3.07. Compliance with Laws and Agreements 40
SECTION 3.08. Investment and Holding Company Status 40
SECTION 3.09. Taxes 40
SECTION 3.10. Labor Matters 40
SECTION 3.11. ERISA 40
SECTION 3.12. Disclosure 41
ARTICLE IV
Conditions 41
SECTION 4.01. Effective Date 41
SECTION 4.02. Each Credit Event 42
ARTICLE V
Affirmative Covenants 42
SECTION 5.01. Financial Statements and Other Information 42
SECTION 5.02. Notices of Material Events 43
SECTION 5.03. Existence; Conduct of Business 44
SECTION 5.04. Payment of Obligations 44
SECTION 5.05. Maintenance of Properties; Insurance 44
SECTION 5.06. Books and Records; Inspection Rights 44
SECTION 5.07. Compliance with Laws 44
SECTION 5.08. Use of Proceeds 44
SECTION 5.09. Additional Guarantors. 44
ARTICLE VI
Negative Covenants 45
SECTION 6.01. Financial Condition Covenants 45
SECTION 6.02. Indebtedness 45
SECTION 6.03. Liens 46
SECTION 6.04. Limitation on Sales and Leasebacks 46
SECTION 6.05. Fundamental Changes 46
SECTION 6.06. Investments, Loans, Advances, Guarantees and
Acquisitions 47
SECTION 6.07. Restricted Payments 47
SECTION 6.08. Transactions with Affiliates 47
SECTION 6.09. Restrictive Agreements 48
-ii-
<PAGE>
ARTICLE VII
Events of Default 48
ARTICLE VIII
The Administrative Agent 50
ARTICLE IX
Parent Guarantee 52
SECTION 9.01. Guarantee 52
SECTION 9.02. No Subrogation, Contribution, Reimbursement or
Indemnity 53
SECTION 9.03. Amendments, etc. with respect to the Obligations 53
SECTION 9.04. Guarantee Absolute and Unconditional 53
SECTION 9.05. Reinstatement 54
SECTION 9.06. Payments 54
ARTICLE X
Miscellaneous 54
SECTION 10.01. Notices 54
SECTION 10.02. Waivers; Amendments 55
SECTION 10.03. Expenses; Indemnity; Damage Waiver 56
SECTION 10.04. Successors and Assigns 57
SECTION 10.05. Survival 59
SECTION 10.06. Counterparts; Integration; Effectiveness 59
SECTION 10.07. Severability 59
SECTION 10.08. Right of Setoff 59
SECTION 10.09. Judgment Currency 59
SECTION 10.10. Governing Law; Jurisdiction; Consent to Service of
Process 60
SECTION 10.11. WAIVER OF JURY TRIAL 61
SECTION 10.12. Headings 61
SECTION 10.13. Confidentiality 61
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.05 -- Subsidiaries
Schedule 3.06 -- Disclosed Matters
Schedule 3.11 -- ERISA Matters
Schedule 6.02 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
Schedule 6.09A -- Existing Restrictions
-iii-
<PAGE>
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Counsel
Exhibit C -- Form of Subsidiary Guarantee
Exhibit D -- Form of New Lender Supplement
Exhibit E -- Form of Commitment Increase Supplement
-iv-
<PAGE>
CREDIT AGREEMENT dated as of January 27, 1998, among LEXMARK
INTERNATIONAL GROUP, INC., LEXMARK INTERNATIONAL, INC., the Lenders party
hereto, FLEET NATIONAL BANK, as documentation agent (in such capacity, the
"Documentation Agent"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
syndication agent (in such capacity, the "Syndication Agent"), and THE CHASE
MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR"
---, when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate"
------------------ means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate, plus with respect
to any Eurosterling Borrowing funded through a branch of any Lender which is
located in the United Kingdom, the cost certified by such Lender to the
Administrative Agent to be the cost to that Lender of compliance with the
Mandatory Liquid Asset requirements of the Bank of England during such Interest
Period, expressed as a percentage rate per annum.
"Administrative Agent"
--------------------- means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder; it being understood
that matters concerning Qualified Foreign Currency Loans will be administered by
Chase Manhattan plc and therefore all notices concerning such Loans will be
required to be given at the London Administrative Office.
"Administrative Office"
--------------------- means the New York Administrative
Office or the London Administrative Office, as applicable.
"Administrative Questionnaire"
------------------------------ means an Administrative
Questionnaire in a form supplied by and submitted to the Administrative Agent
(with a copy to the Borrower) duly completed by each Lender.
"Affiliate"
--------- means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate"
--------------------- means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
<PAGE>
2
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Percentage"
--------------------- means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate"
---------------- means, for any day, with respect to the
facility fees payable hereunder, or with respect to any Eurocurrency Revolving
Loan, as the case may be, the applicable rate per annum set forth below opposite
the caption "Facility Fee Rate" or "Eurocurrency Margin", as the case may be,
based upon the Level then in effect:
Level I Level II Level III Level IV Level V Level VI
Facility Fee Rate 0.100% 0.125% 0.125% 0.175% 0.225% 0.300%
Eurocurrency Margin 0.200% 0.250% 0.325% 0.425% 0.525% 0.700%
"Assessment Rate"
---------------- means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance"
------------------------- means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent
and the Borrower.
"Attributable Debt"
------------------ means, in respect of a Sale/Leaseback
Transaction, as at the time of determination, the present value (discounted at
the interest rate assumed in making calculations in accordance with FAS 13) of
the total obligations of the Parent or the relevant Subsidiary, as lessee, for
rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Availability Period"
-------------------- means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
<PAGE>
3
"Base CD Rate"
------------ means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board"
----- means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower"
-------- means Lexmark International, Inc., a Delaware
corporation.
"Borrowing"
--------- means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect, (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
-----------------
Revolving Borrowing in accordance with Section 2.03.
"Business Day"
------------ means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits of the relevant currency in the
relevant interbank market or in the principal financial center for such
currency.
"Calculation Date"
----------------- means two Business Days prior to the last
Business Day of each calendar month (or any other day selected by the
Administrative Agent when an Event of Default has occurred and is continuing
(each, an "Optional Calculation Date")); provided that the second Business Day
preceding each Borrowing Date with respect to any Qualified Foreign Currency
Loan shall also be a "Calculation Date" with respect to the relevant Qualified
Foreign Currency; provided further that the second Business Day preceding each
date on which any Qualified Foreign Currency Loan is extended or rolled-over
shall also be a "Calculation Date" with respect to the relevant Qualified
Foreign Currency.
"Capital Lease Obligations"
----------------------------- of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock"
--------------- means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents"
---------------- means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof), in each case maturing within one
year from the date of acquisition thereof;
<PAGE>
4
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a credit rating of at least A-1 from S&P or P-1 from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than one year for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) tax-exempt securities that are obligations of a State of
the United States of America or of the District of Columbia (maturing
within one year of the date of acquisition thereof) with a minimum
long-term debt rating of A by S&P or A-2 by Moody's, or a short-term
rating no lower than SP-1 or A-1 by S&P or MIG 1, VMIG 1 or P-1 by
Moody's;
(f) money market investment funds which invest primarily in
the types of securities described in clauses (a) through (e) above and
consistent with past practices; and
(g) in the case of investments by any Foreign Subsidiary,
obligations of a credit quality and maturity comparable to that of the
items referred to in clauses (a) through (f) above that are available
in local markets.
"Change in Control"
----------------- means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any "person" or "group"
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
of shares representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Parent; (b)
during any period of 24 consecutive calendar months, individuals who were
directors of the Parent on the first day of such period (or who were appointed,
elected or proposed for election as directors of the Parent upon the affirmative
vote or with the consent of a majority of the directors who were directors on
such first day or who were appointed, elected or proposed for election in
accordance with this parenthetical phrase) shall cease to constitute a majority
of the board of directors of the Parent; (c) the acquisition of direct or
indirect Control of the Parent by any "person" or "group" (defined as
aforesaid); or (d) the circumstance that the Borrower shall cease to be a Wholly
Owned Subsidiary of the Parent.
"Change in Law"
------------- means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Lender (or, for purposes of Section 2.15(b), by any lending office
of such Lender or by such Lender's or the Issuing Lender's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class"
----- , when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Competitive Loans or Swingline Loans.
<PAGE>
5
"Code"
---- means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment"
---------- means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be changed from time to time pursuant to this Agreement. As of
the Effective Date, the amount of each Lender's Commitment is set forth on
Schedule 2.01.
"Competitive Bid"
---------------- means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate"
-------------------- means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request"
------------------------ means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan"
---------------- means a Loan made pursuant to Section 2.04.
"Consolidated EBITDA"
------------------- means, for any period, Consolidated Net
Income for such period plus, without duplication and to the extent reflected as
a charge in the statement of such Consolidated Net Income for such period, the
sum of (a) income tax expense, (b) Consolidated Interest Expense, amortization
or writeoff of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness (including the Loans),
(c) depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs and (e) any
other non-cash charges (not including accruals of charges which will be
discharged in a following accounting period in cash in the ordinary course of
business), and minus, without duplication, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income and (b) any other non-cash income (not including accruals of
income which will be received in a following accounting period in cash in the
ordinary course of business), all as determined on a consolidated basis.
"Consolidated Interest Coverage Ratio"
------------------------------------- means, for any period,
the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense"
------------------------------ means, for any period, total
interest expense (including that attributable to Capital Lease Obligations) of
the Parent and its Subsidiaries for such period with respect to all outstanding
Indebtedness of the Parent and its Subsidiaries (including, without limitation,
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under interest
rate Hedging Agreements to the extent such net costs are allocable to such
period in accordance with GAAP).
"Consolidated Leverage Ratio"
--------------------------- means, at any date, the ratio of
(a) Consolidated Total Debt on such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters ending with the most recent fiscal
quarter for which the relevant financial information is available.
"Consolidated Net Income"
-------------------------- means, for any period, the
consolidated net income (or loss) of the Parent and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP.
<PAGE>
6
"Consolidated Total Debt"
------------------------ means, at any date, the aggregate
principal amount of all Indebtedness of the Parent and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation"
------------------------ means, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Control"
------- means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise.
"Controlling" and "Controlled"
----------- ---------- have meanings correlative
thereto.
"Debt Rating"
----------- means, with respect to each Rating Agency, the
rating assigned by such Rating Agency to the Index Debt.
"Default"
------- means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Determination Date"
------------------ means the last Business Day of each month
and each date that is two Business Days after any Optional Calculation Date.
"Disclosed Matters"
------------------ means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Dollar Equivalent"
------------------ means, with respect to an amount of any
Qualified Foreign Currency on any date, the amount of Dollars that may be
purchased with such amount of such currency at the Spot Exchange Rate
(determined as of the most recent Calculation Date) with respect to such
currency on such date.
"Dollars" or "$"
------- - refers to lawful money of the United States
of America.
"Domestic Subsidiary"
-------------------- means any Subsidiary of the Parent
organized under the laws of any jurisdiction within the United States of
America.
"Effective Date"
--------------- means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02), which date is January 27, 1998.
"Environmental Laws"
------------------- means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability"
------------------------ means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Parent or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
<PAGE>
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
7
"ERISA"
----- means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate"
---------------- means any trade or business (whether or not
incorporated) that, together with the Parent or any Subsidiary, is treated as a
single employer under Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event"
----------- means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived or an
event disclosed on Schedule 3.11); (b) the existence with respect to any Plan of
an "accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by the
Parent, the Borrower or any ERISA Affiliate of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Parent, the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Parent, the Borrower or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Parent, the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Parent, the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency",
------------ when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO Rate
(or, in the case of a Competitive Loan, the LIBO Rate).
"Eurocurrency Tranche"
--------------------- means the collective reference to
Eurocurrency Loans of a particular currency the then current Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Eurocurrency Loans shall originally have been made on
the same day).
"Eurodeutschemarks"
----------------- means Deutsche Marks, insofar as dealings
in deposits in such currency are carried on in the London interbank market.
"Eurodollars"
----------- means Dollars, insofar as dealings in deposits
in such currency are carried on in the London interbank market.
"Eurofrancs"
---------- means French Francs, insofar as dealings in
deposits in such currency are carried on in the London interbank market.
"Eurosterling"
------------ means Sterling, insofar as dealings in deposits
in such currency are carried on in a relevant interbank market other than the
London interbank market.
"Event of Default"
---------------- has the meaning assigned to such term in
Article VII.
"Excluded Taxes"
--------------- means, with respect to the Administrative
Agent, any Lender, the Issuing Lender or any other recipient of any payment to
<PAGE>
8
be made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed by the
United States of America on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement or that is imposed by the
United States of America as a result of such Foreign Lender's failure or
inability to comply with Section 2.17(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Federal Funds Effective Rate"
------------------------------- means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer"
------------------- means the chief financial officer,
principal accounting officer, treasurer or controller of the Parent.
"Fitch"
----- means Fitch Investors Service, Inc. and its successors.
"Fixed Rate"
----------- means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan"
--------------- means a Competitive Loan bearing interest
at a Fixed Rate.
"Foreign Lender"
--------------- means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary"
------------------ means any Subsidiary of the Parent which
is not a Domestic Subsidiary.
"GAAP"
---- means generally accepted accounting principles in the
United States of America.
"Governmental Authority"
----------------------- means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee"
--------- of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing any
<PAGE>
9
Indebtedness or other obligation of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials"
-------------------- means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement"
------------------- means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness"
------------ of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services, (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations and Attributable Debt of such Person and (h) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit or similar instruments; provided that (a) neither
trade accounts payable or accrued liabilities in respect of accrued expenses, in
either case arising in the ordinary course of business, nor obligations in
respect of insurance policies or performance or surety bonds which are not
themselves Guarantees of Indebtedness (nor bills of exchange, drafts,
acceptances or similar instruments evidencing the same nor reimbursement
obligations that are contingent or that have been fixed for not more than three
Business Days in respect of letters of credit or other similar undertakings
supporting the payment of the same) shall constitute Indebtedness, (b) any cash
advances pursuant to any Permitted Receivables Financing shall not constitute
Indebtedness of the Parent or any of its Subsidiaries, (c) any sale, transfer or
other disposition of accounts receivable that, under GAAP as in effect on the
date of such sale, transfer or disposition, is or shall be treated as a sale of
such accounts receivable, shall not constitute Indebtedness of the Parent or any
of its Subsidiaries and (d) in determining the amount of any Indebtedness,
Guarantees of such Indebtedness shall not be taken into account to the extent
the Indebtedness Guaranteed is itself taken into account. References in this
Agreement to the amount of any Indebtedness shall not include accrued interest
or fees in respect of such Indebtedness, except to the extent that such interest
or fees has been capitalized.
"Indemnified Taxes"
----------------- means Taxes other than Excluded Taxes.
"Index Debt"
---------- means senior, unsecured, long-term indebtedness
for borrowed money of the Parent that is not guaranteed by any other Person or
subject to any other credit enhancement.
<PAGE>
10
"Interest Election Request"
------------------------- means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date"
--------------------- means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing and (d) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period"
---------------- means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months or, with the consent of each Lender (or, in the case of Competitive
Loans, each relevant Lender), nine months thereafter, as the Borrower may elect,
(b) with respect to any Fixed Rate Borrowing, the period (which shall not be
less than 7 days or more than 360 days) commencing on the date of such Borrowing
and ending on the date specified in the applicable Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurocurrency Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Issuing Lender"
--------------- means The Chase Manhattan Bank, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(i). The Issuing Lender may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Lender, in which case the term "Issuing Lender" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement"
---------------- means a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure"
----------- means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders"
------- means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
<PAGE>
11
Acceptance or a New Lender Supplement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment and Acceptance. Unless the context
otherwise requires, the term "Lenders" includes the Swingline Lenders and the
Issuing Lender.
"Letter of Credit"
---------------- means any letter of credit issued pursuant
to this Agreement.
"Level" means
----- the Level set forth below corresponding to the
Consolidated Leverage Ratio or, at any time when a Debt Rating has been assigned
by at least two Rating Agencies, the Debt Rating, then in effect:
Consolidated Debt Rating
Level Leverage Ratio (S&P/Moody's/Fitch)
I N/A BB+/Baa1/BBB+ (or higher)
II Less than 0.25 to 1 BBB/Baa2/BBB
III Greater than or equal to 0.25 to 1 BBB-/Baa3/BBB-
and less than 0.75 to 1
IV Greater than or equal to 0.75 to 1 BB+/Ba1/BB+
and less than 1.25 to 1
V Greater than or equal to 1.25 to 1 BB/Ba2/BB
and less than 1.75 to 1
VI Greater than or equal to 1.75 to 1 BB-/Ba3/BB- (or lower)
While the Level is determined based on the Consolidated
Leverage Ratio, the Level shall be reset on the basis thereof on each date (an
"Adjustment Date") that is three Business Days after delivery of the Parent's
quarterly or annual financial statements pursuant to Section 5.01, with such
ratio being determined as of the last day of the period of four consecutive
fiscal quarters ending with the period covered by such financial statements.
While the Level is determined based on the Debt Rating, in the
event of "split" Debt Ratings, the Level shall be set at the Level corresponding
to the highest Debt Rating, unless the Debt Ratings differ by more than one
Level, in which case, (a) at any time when a Debt Rating has been assigned by
all three Rating Agencies, if the Debt Ratings from two Rating Agencies are at
the same Level and at a lower Level by the third Rating Agency, the Level shall
be set at the Level corresponding to the higher Debt Rating; otherwise, the
Level shall be set at the Level next below the Level corresponding to the
highest Debt Rating or (b) at any time when a Debt Rating has been assigned by
two Rating Agencies, the Level shall be set at the Level next below the Level
corresponding to the higher Debt Rating.
Notwithstanding anything to the contrary in this Agreement,
the Level shall be deemed to be Level III until the Parent has delivered
financial statements pursuant to Section 5.01 in respect of its fiscal quarter
ending June 30, 1998.
"LIBO Rate"
--------- means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate appearing on Page 3750 (or, in the case of
<PAGE>
12
Eurofrancs, Page 3740) of the Dow Jones Markets Pages (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
deposits in the relevant currency in the relevant interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in the relevant
currency with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which deposits in the relevant currency of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the relevant office
of the Administrative Agent in immediately available funds in the relevant
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien"
---- means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing, but excluding operating leases) relating to such asset, (c) in the
case of securities (other than securities issued by the Parent), any purchase
option, call or similar right of a third party with respect to such securities
and (d) any comparable or equivalent rights or encumbrances under the laws of
foreign jurisdictions; provided, that neither the licensing of any intellectual
property right nor the holding of any such right subject to any retained right
of any licensor or transferor thereof to use or license the same shall, alone,
constitute a Lien on any such right.
"Loan Documents" means
-------------- the collective reference to this Agreement
and the Subsidiary Guarantee.
"Loan Parties"
------------ means the collective reference to the Parent,
the Borrower and the Subsidiary Guarantors.
"Loans"
----- means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Local Time"
----------- means New York City time, in the case of Loans
denominated in Dollars, and London time, in the case of all other Loans.
"London Administrative Office"
-------------------------------- means the Administrative
Agent's office located at 125 London Wall, London, or such other office in
London as may be designated by the Administrative Agent by written notice to the
Parent and the Lenders.
"Margin"
------ means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect"
------------------------ means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise, of
the Parent and the Subsidiaries taken as a whole, (b) the ability of any Loan
Party to perform any of its obligations under this Agreement or the other Loan
Documents or (c) the validity or enforceability of any of the Loan Documents or
the rights and remedies of the Administrative Agent and the Lenders thereunder.
<PAGE>
13
"Material Indebtedness"
---------------------- means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Parent and its Subsidiaries in an
aggregate principal amount exceeding $20,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Parent
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Parent or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary"
-------------------- means any Domestic Subsidiary (other
than the Permitted Receivables Vehicle), 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 clauses (b) and (c),
in respect of the most recent period of four consecutive fiscal quarters of the
Parent 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 Parent and its Domestic Subsidiaries
at such time. Upon the acquisition of a new Subsidiary, qualification as a
"Material Subsidiary" shall be determined on a pro forma basis on the assumption
that such Subsidiary had been acquired at the beginning of the relevant period
of four consecutive fiscal quarters.
"Material Worldwide Subsidiary"
------------------------------- means any Subsidiary (other
than the Permitted Receivables Vehicle), 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 clauses (b) and (c),
in respect of the most recent period of four consecutive fiscal quarters of the
Parent 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 Parent and its Subsidiaries at such
time. Upon the acquisition of a new Subsidiary, qualification as a "Material
Worldwide Subsidiary" shall be determined on a pro forma basis on the assumption
that such Subsidiary had been acquired at the beginning of the relevant period
of four consecutive fiscal quarters.
"Maturity Date"
------------- means January 27, 2003.
"Moody's"
------- means Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan"
------------------ means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"New York Administrative Office"
-------------------------------- means the Administrative
Agent's office located at 270 Park Avenue, New York, New York, or such other
office in New York City as may be designated by the Administrative Agent by
written notice to the Parent and the Lenders.
"Obligations"
----------- means the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Loans and interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations and
<PAGE>
14
liabilities of the Borrower to the Administrative Agent or to any Lender,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, fees, reimbursement obligations (including, without
limitation, any unreimbursed LC Disbursements), indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of counsel
to the Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
"Optional Calculation Date"
------------------------- has the meaning set forth in the
definition of "Calculation Date".
"Other Taxes"
------------ means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Parent"
------ means Lexmark International Group, Inc., a Delaware
corporation.
"PBGC"
---- means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Bond Financing"
------------------------ means the issuance by the Parent or
the Borrower of up to $175,000,000 of debt securities that (a) have no scheduled
amortization prior to January 31, 2004, (b) have covenants and events of default
that are no more restrictive than those contained in this Agreement and (c) are
Guaranteed (if at all) only by Persons that are Loan Parties.
"Permitted Encumbrances"
---------------------- means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) cash and/or non-cash deposits to secure the performance of
bids, trade contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Parent or any
Subsidiary; and
(f) Liens arising in the ordinary course of business which (i)
do not secure Indebtedness, (ii) do not secure obligations in an
<PAGE>
15
aggregate amount exceeding $25,000,000 and (c) do not in the aggregate
materially detract from the value of the assets of the Parent and its
Subsidiaries or materially impair the use thereof in the operation of
their respective businesses;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Receivables Financing"
--------------------------------- means any program for the
transfer without recourse (other than customary limited recourse) by the Parent
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 Parent and its Subsidiaries pursuant to such
program shall not exceed $250,000,000 at any one time.
"Permitted Receivables Vehicle"
------------------------------- means Lexmark Receivables
Corporation, a Delaware corporation, or any other Person established as a
"bankruptcy remote" Subsidiary of the Parent for the purpose of acquiring
accounts receivable under any Permitted Receivables Financing.
"Person"
------ means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan"
---- means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Parent or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate"
----------- means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Qualified Foreign Currencies"
---------------------------- means the collective reference
to Eurodeutschemarks, Eurosterling and Eurofrancs.
"Qualified Foreign Currency Borrowing"
------------------------------------ means any Borrowing
comprised of Qualified Foreign Currency Loans.
"Qualified Foreign Currency Loan"
------------------------------- shall mean any Loan
denominated in a Qualified Foreign Currency.
"Quoted Swingline Rate"
--------------------- has the meaning set forth in
Section 2.05(b).
"Rating Agencies"
--------------- means the collective reference to Fitch,
Moody's and S&P.
"Register"
-------- has the meaning set forth in Section 10.04(c).
"Reimbursement Obligation"
------------------------ means the obligation of Borrower to
reimburse the Issuing Lender pursuant to Section 2.06(e) for amounts drawn under
Letters of Credit.
"Related Parties"
--------------- means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
<PAGE>
16
"Required Lenders"
------------------ means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing at least 51% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time; provided that, for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Requirement of Law"
------------------ means, as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its property is subject.
"Restricted Payment"
------------------- means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Parent, or any payment other than solely in
shares of its capital stock (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement or acquisition of any such shares of capital stock of the
Parent or any option, warrant or other right to acquire any such shares of
capital stock of the Parent.
"Revolving Credit Exposure"
-------------------------- means, with respect to any Lender
at any time, the sum of (a) the aggregate outstanding principal amount of such
Lender's Revolving Loans at such time that are denominated in Dollars, (b) the
Dollar Equivalent at such time of the aggregate outstanding principal amount of
such Lender's Qualified Foreign Currency Loans and (c) such Lender's LC
Exposure.
"Revolving Loan"
-------------- means a Loan made pursuant to Section 2.03.
"Sale/Leaseback Transaction"
-------------------------- has the meaning set forth in
Section 6.04.
"S&P"
--- means Standard & Poor's Ratings Services and its
successors.
"Spot Exchange Rate"
-------------------- shall mean, on any day, with respect to
any Qualified Foreign Currency, the spot rate at which Dollars are offered on
such day by The Chase Manhattan Bank in London for such Qualified Foreign
Currency at approximately 11:00 A.M. (London time) for delivery two Business
Days later. For purposes of determining the Spot Exchange Rate in connection
with a Qualified Foreign Currency Borrowing, such spot exchange rate shall be
determined as of the Calculation Date for such Borrowing with respect to
transactions in the applicable Qualified Foreign Currency that will settle on
the date of such Borrowing.
"Statutory Reserve Rate"
------------------------ means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board or by any other Governmental Authority,
domestic or foreign, with jurisdiction over the Administrative Agent or any
Lender (including any branch, Affiliate or other funding office thereof making
or holding a Loan) (a) with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate applicable to any Borrowing, for any category of liabilities which includes
deposits by reference to which the Adjusted LIBO Rate is respect of such
Borrowing is determined. Such reserve percentages shall include those imposed
pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
<PAGE>
17
"Subsidiary"
---------- means, with respect to any Person (the "owner")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the owner in the owner's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the owner or one or more subsidiaries of the
owner or by the owner and one or more subsidiaries of the owner.
"Subsidiary"
---------- means any subsidiary of the Parent.
"Subsidiary Guarantee"
--------------------- means the Subsidiary Guarantee to be
executed and delivered by each Subsidiary Guarantor, substantially in the form
of Exhibit C.
"Subsidiary Guarantor"
--------------------- means the collective reference to the
Material Subsidiaries and each other Subsidiary of the Parent that becomes a
Subsidiary Guarantor pursuant to Section 5.09(b).
"Swingline Lenders"
------------------- means any Lender designated as a
"Swingline Lender" on Schedule 2.01 and any other Lender designated by the
Borrower as a "Swingline Lender" pursuant to Section 2.05(c).
"Swingline Loan"
-------------- means a Loan made pursuant to Section 2.05.
"Taxes"
----- means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate"
-------------------------------- means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Exposure"
--------------- means, at any time, the sum of (a) the total
Revolving Credit Exposures and (b) the aggregate principal amount of outstanding
Swingline Loans and Competitive Loans.
<PAGE>
18
"Transactions"
------------ means the execution, delivery and performance
by the Parent and the Borrower of this Agreement, the borrowing of Loans, the
use of the proceeds thereof, the issuance of Letters of Credit hereunder and the
execution, delivery and performance of the other Loan Documents by each Loan
Party party thereto.
"Type"
----, when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO
Rate or a Fixed Rate.
"Wholly Owned Subsidiary"
----------------------- means, as to any Person, any other
Person all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Withdrawal Liability"
-------------------- means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings.
------------------------------------------
For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency
Revolving Borrowing").
SECTION 1.03. Terms Generally.
---------------- The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement, (e) the words "asset" and "property" shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights
and (f) where applicable, any amount (including, without limitation, minimum
borrowing, prepayment or repayment amounts) expressed in Dollars shall, when
referring to any currency other than Dollars, be deemed to mean an amount of
such currency having a Dollar equivalent approximately equal to such amount.
SECTION 1.04. Accounting Terms; GAAP.
------------------------Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
<PAGE>
19
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Pro Forma Calculations.
---------------------- For the purpose of any
pro forma calculation of the Consolidated Interest Coverage Ratio made in
connection with a transaction involving the incurrence of Indebtedness, such
calculation shall be made under the assumption that such Indebtedness was
incurred on the first day of the period covered by such calculation.
SECTION 1.06. Currency Conversion.
------------------- (a) If more than one
currency or currency unit are at the same time recognized by the central
bank of any country as the lawful currency of that country, then (i) any
reference in the Loan Documents to, and any obligations arising under the Loan
Documents in, the currency of that country shall be translated into or paid
in the currency or currency unit of that country designated by the
Administrative Agent and (ii) any translation from one currency or currency
unit to another shall be at the official rate of exchange recognized by the
central bank for conversion of that currency or currency unit into the
other, rounded up or down by the Administrative Agent as it deems
appropriate.
(b) If a change in any currency of a country occurs, this
Agreement shall be amended (and each party hereto agrees to enter into any
supplemental agreement necessary to effect any such amendment) to the extent
that the Administrative Agent specifies to be necessary to reflect the change in
currency and to put the Lenders in the same position, so far as possible, that
they would have been in if no change in currency had occurred.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
----------- Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to
the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Commitment or (b) the Total Exposure
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
--------------------- (a)Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower
may request in accordance herewith, and (ii) each Competitive Loan shall be
comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each Swingline Loan shall bear interest at a
<PAGE>
20
rate per annum equal to the relevant Quoted Swingline Rate. Each Lender at its
option may make any Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be a
minimum of $2,500,000 and an integral multiple of $1,000,000, to the extent in
excess thereof; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e). Each Competitive Loan shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000.
Each Swingline Loan shall be in an amount that is an integral multiple of
$100,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten Eurocurrency Tranches outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings.
---------------------------------- To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., Local Time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii)whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, (A) the currency
of such Borrowing (which shall be Dollars or a Qualified Foreign
Currency) and (B) the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
<PAGE>
21
If no election as to the currency of a Revolving Borrowing is specified in any
such notice, then the requested Borrowing shall be denominated in Dollars. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing if denominated in Dollars or a
Eurocurrency Borrowing if denominated in a Qualified Foreign Currency. If no
Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
--------------------------- (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that at no time shall the Total Exposure exceed the total Commitments. To
request Competitive Bids, the Borrower shall notify the Administrative Agent of
such request by telephone, in the case of a Eurocurrency Borrowing, not later
than 11:00 a.m., Local Time, four Business Days before the date of the proposed
Borrowing and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m.,
New York City time, one Business Day before the date of the proposed Borrowing;
provided that the Borrower may submit up to (but not more than) three
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii)the date of such Borrowing, which shall be a Business Day;
(iii)whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Competitive Loan, not later than 9:30
a.m., Local Time, three Business Days before the proposed date of such
<PAGE>
22
Competitive Loan, and in the case of a Fixed Rate Borrowing, not later than 9:30
a.m., New York City time, on the proposed date of such Competitive Loan.
Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $10,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Loan requested by
the Borrower) of the Competitive Loan or Loans that the Lender is willing to
make, (ii) the Competitive Bid Rate or Rates at which the Lender is prepared to
make such Loan or Loans (expressed as a percentage rate per annum in the form of
a decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly (in any event not
later than 10:00 a.m., Local Time, on the corresponding Business Day referred to
in paragraph (d) below) notify the Borrower by telecopy of the Competitive Bid
Rate and the principal amount specified in each Competitive Bid and the identity
of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive Loan, not
later than 10:30 a.m., Local Time, three Business Days before the date of the
proposed Competitive Loan, and in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., New York City time, on the proposed date of the Competitive
Loan; provided that (i) the failure of the Borrower to give such notice shall be
deemed to be a rejection of each Competitive Bid, (ii) the Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Loan specified in the
related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of
$10,000,000 and an integral multiple of $1,000,000; provided, further that if a
Competitive Loan must be in an amount less than $10,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
<PAGE>
23
SECTION 2.05. Swingline Loans.
---------------- (a) Subject to the terms and
conditions set forth herein, each Swingline Lender may make Swingline Loans in
Dollars to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$30,000,000 or (ii) the Total Exposure exceeding the total Commitments. Within
the foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify any
one or more of the Swingline Lenders of such request by telephone (confirmed by
telecopy), not later than 2:00 p.m., New York City time, on the day of a
proposed Swingline Loan. Each such notice shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. Upon
receipt of any such request, each Swingline Lender may in its discretion quote
to the Borrower the interest rate (the "Quoted Swingline Rate") at which such
Swingline Lender is willing to lend the requested Swingline Loan, and the
Borrower may in its discretion accept or reject any such quote by notice to the
relevant Swingline Lender (which notice shall be received no later than a time
acceptable to the Swingline Lender). Each Swingline Lender shall make each
Swingline Loan made by it available to the Borrower by wire transfer of
immediately available funds to the account notified by the Borrower to the
relevant Swingline Lender (or, in the case of a Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in Section 2.06(e), by
remittance to the Issuing Lender) by 4:00 p.m., New York City time, on the
requested date of such Swingline Loan. The Borrower and each Swingline Lender
shall promptly notify the Administrative Agent of the date and amount of any
Swingline Loan made to it or by it, as the case may be, and the Quoted Swingline
Rate applicable thereto.
(c) At any time when there shall be fewer than five Swingline
Lenders, the Borrower may appoint from among the Lenders a new Swingline Lender,
subject to the prior consent of such new Swingline Lender and prior notice to
the Administrative Agent, so long as at no time shall there be more than five
Swingline Lenders. Upon written notice to the relevant Swingline Lender and to
the Administrative Agent, the Borrower may at any time terminate a Lender as a
Swingline Lender hereunder.
SECTION 2.06. Letters of Credit.
----------------- (a) General.
------- Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Lender, at any time and from time to time
during the Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Lender relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
- ----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Lender) to the
Issuing Lender and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section), the amount of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Lender, the Borrower also shall submit a letter of
credit application on the Issuing Lender's standard form in connection with any
<PAGE>
24
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i)
the LC Exposure shall not exceed $20,000,000 and (ii) the Total Exposure shall
not exceed the total Commitments.
(c) Expiration Date.
--------------- Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations.
-------------- By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Lender or the Lenders, the Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from the
Issuing Lender, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Lender, such Lender's Applicable
Percentage of each LC Disbursement made by the Issuing Lender and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
------------- If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 2:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, New York City time, on the Business Day
immediately following the day that the Borrower receives such notice; provided
that, if such LC Disbursement is not less than $2,500,000, the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 that such payment be financed with an ABR Revolving Borrowing
in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing. If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Lender the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Lender or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Lender, then to such Lenders and the Issuing
Lender as their interests may appear. Any payment made by a Lender pursuant to
<PAGE>
25
this paragraph to reimburse the Issuing Lender for any LC Disbursement (other
than the funding of ABR Revolving Loans or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute.
---------------------- The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or this
Agreement;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other Person may at any time have against the beneficiary under
any Letter of Credit, the Issuing Lender, the Administrative Agent or
any Lender or any other Person, whether in connection with this
Agreement or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Lender under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Lender, the Lenders, the Administrative Agent or any other
Person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Lender, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder, including any of the
circumstances specified in clauses (i) through (vi) above, as well as any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Lender; provided that the foregoing shall not be
construed to excuse the Issuing Lender from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Lender's
failure to exercise the agreed standard of care (as set forth below) in
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that
the Issuing Lender shall have exercised the agreed standard of care in the
absence of gross negligence or wilful misconduct on the part of the Issuing
Lender. Without limiting the generality of the foregoing, it is understood that
the Issuing Lender may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of documents
that appear on their face to be in substantial compliance with the terms of such
<PAGE>
26
Letter of Credit; provided that the Issuing Lender shall have the right, in its
sole discretion, to decline to accept such documents and to make such payment if
such documents are not in strict compliance with the terms of such Letter of
Credit.
(g) Disbursement Procedures.
------------------------- The Issuing Lender shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Lender
shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing
Lender has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Borrower of
its obligation to reimburse the Issuing Lender and the Lenders with respect to
any such LC Disbursement.
(h) Interim Interest.
---------------- If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(e) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Lender, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Lender shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Lender.
--------------------------------- The Issuing Lender may
be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Lender pursuant to Section 2.12(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the Issuing Lender under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term "Issuing Lender" shall be deemed to refer to such successor
or to any previous Issuing Lender, or to such successor and all previous Issuing
Lenders, as the context shall require. After the replacement of an Issuing
Lender hereunder, the replaced Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Lender under
this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization.
----------------------- If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing greater
than 51% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (i) or (j) of Article VII. Such deposit shall be
<PAGE>
27
held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent (with the cost of making such
investments being for the account of the Borrower), such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Lender for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Lenders with LC Exposure representing greater than 51%
of the total LC Exposure), be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower is required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount, together with any interest and profits, (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 2.07. Funding of Borrowings.
--------------------- (a)Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, Local Time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent at
the relevant Administrative Office and designated by the Borrower in the
applicable Borrowing Request or Competitive Bid Request; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
Issuing Lender.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of Eurocurrency Loans, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds in the relevant currency (which
determination shall be conclusive absent manifest error), in each case plus the
Applicable Rate or (ii) in the case of ABR Loans, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing. If
any interest is paid by the Borrower as described above for any period with
respect to any amount funded by the Administrative Agent pursuant to this
paragraph, the Borrower shall not be required to pay interest on such amount
pursuant to Section 2.13 in respect of such period.
SECTION 2.08. Interest Elections.
------------------ (a)Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
<PAGE>
28
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Loans or Swingline Loans, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall, in the case of Borrowings in Dollars, be converted to an ABR Borrowing
and shall, in the case of Borrowings in any other currency, be continued as a
Eurocurrency Loan with an Interest Period of one month. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Borrowing may be converted to or continued as a
<PAGE>
29
Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Revolving
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments.
---------------------------------------- (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $1,000,000 and
not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the Total Exposure would exceed the total
Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt.
-------------------------------------- (a)The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Competitive Loan
on the last day of the Interest Period applicable to such Loan and (iii) to the
relevant Swingline Lender the then unpaid principal amount of each Swingline
Loan on the earlier of the Maturity Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least
three Business Days after such Swingline Loan is made; provided that on each
date that a Revolving Borrowing or Competitive Loan is made, the Borrower shall
repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof, provided, that the Administrative Agent shall not be
obligated to record or collect principal and interest in respect of Swingline
Loans.
<PAGE>
30
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11. Prepayment of Loans.
------------------- (a)The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b) of this
Section; provided that the Borrower shall not have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the relevant Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m.,
Local Time, three Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, on the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 1:00 p.m., New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.09, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.09. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02.
(c) If on any Determination Date, the Total Exposure exceeds
105% of the total Commitments then in effect, the Borrower shall, without notice
or demand, within three Business Days after such Determination Date, repay such
of the outstanding Loans in an aggregate principal amount such that, after
giving effect thereto, the Total Exposure does not exceed the total Commitments
then in effect.
(d) Each prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees.
---- (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
<PAGE>
31
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per annum
equal to the Applicable Rate applicable to interest on Eurocurrency Revolving
Loans on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on
which such Lender's Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to the Issuing Lender a fronting fee,
which shall accrue at the rate of 0.10% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Lender pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Lender, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest.
-------- (a) The Loans comprising each ABR
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate. The Loans comprising each Swingline Borrowing shall bear interest at a
rate per annum equal to the relevant Quoted Swingline Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest at a rate per annum equal to (i) in the case of a Eurocurrency
Revolving Loan, the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate, or (ii) in the case of a Eurocurrency
<PAGE>
32
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, (i) if all or a portion of
the principal amount of any Loan or Reimbursement Obligation shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue Loans or Reimbursement Obligations shall bear interest at a rate per
annum which is equal to the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section 2.13, in each case plus 2%,
and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate applicable to ABR Loans plus 2% or, in the case of amounts denominated
in a Qualified Foreign Currency at the rate per annum determined by the
Administrative Agent to represent its cost of overnight or short-term funds in
the relevant currency (which determination shall be conclusive absent manifest
error) plus the Applicable Rate then in effect with respect to Eurocurrency
Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate, and
interest in respect of Eurosterling Loans, shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate
shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest.
-------------------------- If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period;
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurocurrency Competitive Loan, the Lender
that is required to make such Loan) that the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period; or
<PAGE>
33
(c) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that deposits in the
principal amounts of the Loans comprising such Borrowing and in the
currency in which such Loans are to be denominated are not generally
available in the relevant market,
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any affected Revolving
Borrowing to, or continuation of any affected Revolving Borrowing as, a
Eurocurrency Borrowing shall be ineffective, (ii) if any Borrowing Request
requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an
ABR Borrowing and (iii) any request by the Borrower for any affected Qualified
Foreign Currency Revolving Borrowing or Competitive Loan shall be ineffective;
provided that (A) if the circumstances giving rise to such notice do not affect
all the Lenders, then requests by the Borrower for Eurocurrency Competitive
Loans may be made to Lenders that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs.
--------------- (a)If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans or Fixed Rate Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Lender of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Lender hereunder (whether of principal, interest
or otherwise), then the Borrower will pay to such Lender or the Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Lender's capital or
on the capital of such Lender's or the Issuing Lender's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the Issuing Lender or
such Lender's or the Issuing Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or the Issuing
Lender's policies and the policies of such Lender's or the Issuing Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender or such Lender's or the Issuing Lender's holding company for any such
reduction suffered.
<PAGE>
34
(c) A certificate of a Lender or the Issuing Lender setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Lender or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Lender, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Lender's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or the Issuing Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender or
the Issuing Lender, as the case may be, notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Lender's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments.
----------------------- In the event of (a) the
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.11(b) and is revoked in accordance
herewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurocurrency
Loan or Fixed Rate Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section
2.19, then, in any such event, the Borrower shall compensate each Lender for the
loss, and any reasonable cost or expense, attributable to such event. In the
case of a Eurocurrency Loan, the loss to any Lender attributable to any such
event shall be deemed to include an amount determined by such Lender to be equal
to the excess, if any, of (i) the amount of interest that such Lender would pay
for a deposit equal to the principal amount of such Loan for the period from the
date of such payment, conversion, failure or assignment to the last day of the
then current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the Adjusted LIBO Rate for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for deposits in the relevant currency from other
banks in the relevant eurocurrency market at the commencement of such period. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. Taxes.
----- (a) Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made free and clear
<PAGE>
35
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Lender (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Administrative Agent, such
Lender or the Issuing Lender, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the
Issuing Lender, or by the Administrative Agent on its own behalf or on behalf of
a Lender or the Issuing Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
------------------------------------------------
of Set-offs. (a) The Borrower shall make each payment required to be made by
- -----------
it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00
p.m., Local Time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at the
relevant Administrative Office, except payments to be made directly to the
Issuing Lender or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
<PAGE>
36
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder (other than principal of and interest on
Qualified Foreign Currency Loans, which shall be made in the applicable
Qualified Foreign Currency) shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, to pay principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Swingline Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Revolving Loans, Swingline Loans and
participations in LC Disbursements and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Swingline Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans, Swingline
Loans and participations in LC Disbursements; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Lender
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Lender, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Lender with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent to represent its cost of
overnight or short-term funds in the relevant currency (which determination
shall be conclusive absent manifest error).
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d),
<PAGE>
37
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
------------------------------------------------
(a). If any Lender requests compensation under Section 2.15, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b)If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Lender), which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans) and
participations in LC Disbursements, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.20. Commitment Increases.
--------------------- (a) In the event that the
Borrower wishes to increase the aggregate Commitments, it shall notify the
Lenders (through the Administrative Agent) of the amount of such proposed
increase (such notice, a "Commitment Increase Offer"). Each Commitment Increase
Offer shall request an aggregate Commitment increase of at least $25,000,000.
Each Commitment Increase Offer shall offer the Lenders the opportunity to
participate in the increased Commitments ratably in accordance with their
respective Applicable Percentages. In the event that any Lender (each, a
"Declining Lender") shall fail to accept in writing a Commitment Increase Offer
within 10 Business Days after receiving notice thereof, all or any portion of
the proposed increase in the Commitments offered to the Declining Lenders (the
aggregate of such offered amounts, the "Declined Amount") may instead be
allocated to any one or more additional banks, financial institutions or other
entities pursuant to paragraph (b) below and/or to any one or more existing
Lenders pursuant to paragraph (c)(ii) below.
<PAGE>
38
(b) Any additional bank, financial institution or other entity
which, with the consent of the Borrower and the Administrative Agent (which
consent, in the case of the Administrative Agent, shall not be unreasonably
withheld), elects to become a party to this Agreement and obtain a Commitment in
an amount equal to all or any portion of a Declined Amount shall execute a New
Lender Supplement (each, a "New Lender Supplement") with the Borrower and the
Administrative Agent, substantially in the form of Exhibit D, whereupon such
bank, financial institution or other entity (herein called a "New Lender") shall
become a Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 2.01 shall be deemed to be amended to add the name and Commitment of
such New Lender.
(c) Any Lender which (i) accepts a Commitment Increase Offer
pursuant to Section 2.20(a) or (ii) with the consent of the Borrower, elects to
increase its Commitment by an amount equal to all or any portion of a Declined
Amount shall, in each case, execute a Commitment Increase Supplement (each, a
"Commitment Increase Supplement") with the Borrower and the Administrative
Agent, substantially in the form of Exhibit E, whereupon such Lender shall be
bound by and entitled to the benefits of this Agreement with respect to the full
amount of its Commitment as so increased, and Schedule 2.01 shall be deemed to
be amended to so increase the Commitment of such Lender.
(d) If on the date upon which a bank, financial institution or
other entity becomes a New Lender pursuant to Section 2.20(b) or upon which a
Lender's Commitment is increased pursuant to Section 2.20(a) or (c) there is an
unpaid principal amount of Revolving Loans, the Borrower shall borrow Revolving
Loans from such Lender in an amount determined by reference to the amount of
each Type of Revolving Loan (and, in the case of Eurocurrency Loans, of each
Eurocurrency Tranche) which would then have been outstanding from such Lender if
(i) each such Type or Eurocurrency Tranche had been borrowed on the date such
bank, financial institution or other entity became a Lender or such Lender's
Commitment was increased, as the case may be, in each case after giving effect
to such transaction and (ii) the aggregate amount of each such Type or
Eurocurrency Tranche requested to be so borrowed had been increased to the
extent necessary to give effect, with respect to such Lender, to the borrowing
allocation provisions of Section 2.2. Any Eurocurrency Loan borrowed pursuant to
the preceding sentence shall bear interest at a rate equal to the respective
interest rates then applicable to the Eurocurrency Loans of the other Lenders in
the same Eurocurrency Tranche (or such other interest rates as shall be agreed
upon between the Borrower and the relevant Lender).
(e) Notwithstanding anything to the contrary in this Section
2.20, (i) in no event shall any transaction effected pursuant to this Section
2.20 cause the aggregate Commitments to exceed $400,000,000, (ii) the aggregate
amount of any increase in Commitments pursuant to Section 2.20(b) or (c)(ii)
shall be limited to the relevant Declined Amount and (iii) no Lender shall have
any obligation to increase its Commitment unless it agrees to do so in its sole
discretion.
ARTICLE III
Representations and Warranties
Each of the Parent and the Borrower represents and warrants to
the Lenders that:
SECTION 3.01. Organization; Powers.
-------------------- Each of the Parent and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
<PAGE>
39
SECTION 3.02. Authorization; Enforceability.
------------------------------ The Transactions
are within the corporate powers of each Loan Party and have been duly authorized
by all necessary corporate and, if required, stockholder action. Each Loan
Document has been duly executed and delivered by each Loan Party party thereto
and constitutes a legal, valid and binding obligation of each such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts.
--------------------------------------- The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Parent or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Parent or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Parent or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the Parent
or any of its Subsidiaries.
SECTION 3.04.Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) The Parent has heretofore furnished to the Lenders (i) with respect to the
fiscal year ended December 31, 1996, its consolidated statement of financial
position and related statements of operations, stockholders' equity and cash
flows as of and for such fiscal year, reported on by Coopers & Lybrand L.L.P.,
independent public accountants, and (ii) with respect to the fiscal quarter
ended September 30, 1997, its consolidated statement of financial position and
related statements of operations as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year and its consolidated statements
of cash flows for the then elapsed portion of the fiscal year, certified by a
Financial Officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Parent and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above. As
of the Effective Date, the Parent and its Subsidiaries do not have any material
Guarantee obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including, without
limitation, any material interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, which are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from December 31, 1996 to and including the date hereof there
has been no disposition by the Parent or any of its Subsidiaries of any material
part of its business or property.
(b) Since December 31, 1996, there has been no material
adverse change in the business, assets, operations or condition (financial or
otherwise) of the Parent and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties; Intellectual Property; Subsidiaries.
-----------------------------------------------
126. Each of the Parent and its Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
<PAGE>
40
(b) Each of the Parent and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Parent and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) The Subsidiaries listed on Schedule 3.05 constitute all
of the Subsidiaries of the Parent on the Effective Date.
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------ (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Parent or the Borrower,
threatened against or affecting the Parent or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that questions the validity or enforceability of this Agreement
or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Parent nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements.
----------------------------------- Each of the
Parent and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status.
------------------------------------- Neither
the Parent nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935. No Loan Party is subject to regulation
under any Requirement of Law which limits its ability to incur any Indebtedness
under this Agreement or the other Loan Documents.
SECTION 3.09. Taxes.
----- Each of the Parent and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Parent or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
<PAGE>
41
SECTION 3.10. Labor Matters.
-------------- Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, (a) there
are no strikes or other labor disputes against the Parent or any of its
Subsidiaries pending or, to the knowledge of the Parent or the Borrower,
threatened, (b) hours worked by and payment made to employees of the Parent and
its Subsidiaries have not been in violation of the Fair Labor Standards Act or
any other applicable Requirement of Law dealing with such matters and (c) all
payments due from the Parent or any of its Subsidiaries on account of employee
health and welfare insurance have been paid or accrued as a liability on the
books of the Parent or the relevant Subsidiary.
SECTION 3.11. ERISA.
----- Except as described on Schedule 3.11, no
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse
Effect. The present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent audited financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date of the most
recent audited financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.
SECTION 3.12. Disclosure.
---------- The Parent and the Borrower have
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports, financial
statements, certificates or other information furnished by or on behalf of the
Parent or the Borrower to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Parent and the Borrower represent only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time such information was prepared.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.
-------------- The obligations of the Lenders
to make Loans and of the Issuing Lender to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a). The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
<PAGE>
42
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Vincent J. Cole, Vice President,
General Counsel and Secretary of the Borrower, substantially in the
form of Exhibit B, and covering such other matters relating to the Loan
Parties, this Agreement or the Transactions as the Required Lenders
shall reasonably request.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Loan Parties, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, this Agreement or
the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the Chief Executive
Officer, President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event.
----------------- The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Lender to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Loan Parties
set forth in this Agreement or any other Loan Document shall be true
and correct on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
<PAGE>
43
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of the Parent and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
------------------------------------------
The Parent will furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year of the
Parent (commencing with the fiscal year ending December 31, 1997), its
audited consolidated statement of financial position and related
statements of operations, stockholders' equity and cash flows as of the
end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by
Coopers & Lybrand L.L.P. or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Parent and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Parent (commencing with the
fiscal quarter ending March 31, 1998), its consolidated statement of
financial position and related statements of operations as of the end
of and for such fiscal quarter and the then elapsed portion of the
fiscal year and its consolidated statements of cash flows for the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Parent and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Parent (i) certifying as to whether a Default has occurred (except
in the case of financial statements delivered in respect of the 1997
fiscal year, a Default under Section 6.01) and, if a Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto and (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.01 (except in the case of financial statements delivered in respect
of the 1997 fiscal year), 6.02, 6.03, 6.04, 6.06 and 6.07;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Parent or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed by the Parent to its shareholders generally,
as the case may be; and
(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Parent or any Subsidiary, or compliance with the terms
of this Agreement, as the Administrative Agent, at the request of any
Lender, may reasonably request.
<PAGE>
44
SECTION 5.02. Notices of Material Events.
---------------------------- The Parent will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding known by the Parent or the Borrower to have been filed or
commenced by or before any arbitrator or Governmental Authority against
or affecting the Parent or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Parent and its Subsidiaries in
an aggregate amount exceeding $10,000,000; and
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Parent setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business.
------------------------------ The Parent will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Parent and its Subsidiaries taken as a
whole; provided that the foregoing shall not prohibit any transaction permitted
under Section 6.05.
SECTION 5.04. Payment of Obligations.
----------------------- The Parent will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Parent or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance.
------------------------------------ The Parent
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights.
------------------------------------ The Parent
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Parent will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested; provided that the Parent and its Subsidiaries may place
reasonable limits on access to information which is proprietary or constitutes
<PAGE>
45
trade secrets and need not disclose any information if such disclosure would be
prohibited by a confidentiality agreement entered into on an arm's length basis
and in good faith.
SECTION 5.07. Compliance with Laws.
-------------------- The Parent will, and will
cause each of its Subsidiaries to, comply with all Requirements of Law and
Contractual Obligations applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds.
--------------- The proceeds of the Loans will
be used for general corporate purposes of the Parent and its Subsidiaries,
including the financing of investments permitted by Section 6.06 and Restricted
Payments permitted by Section 6.07. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations G, U and X.
SECTION 5.09. Additional Guarantors.
---------------------- (a) Promptly upon any
person becoming a direct or indirect Material Subsidiary, the Parent shall cause
such Material Subsidiary to execute an assumption agreement with respect to the
Subsidiary Guarantee and to furnish a legal opinion with respect thereto
comparable, to the extent applicable, to the legal opinions delivered in respect
of the Subsidiary Guarantees on the Effective Date.
(b) In the event that the aggregate amount of operating profit
of the Parent and its Domestic Subsidiaries ("Domestic Operating Profit")
contributed by the Borrower and the Subsidiary Guarantors, taken as a whole, for
any period of four consecutive fiscal quarters, is less than 80% of Domestic
Operating Profit for such period, the Parent shall, promptly after financial
statements are delivered in respect of such period, cause additional
Subsidiaries to become Subsidiary Guarantors in the manner contemplated by
paragraph (a) above such that, on a pro forma basis, the aggregate amount of
Domestic Operating Profit contributed by the Borrower and the Subsidiary
Guarantors (including the additional Subsidiary Guarantors), taken as a whole,
for such period of four consecutive fiscal quarters shall equal at least 80% of
Domestic Operating Profit for such period.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, each of the Parent and the Borrower
covenants and agrees with the Lenders that:
SECTION 6.01. Financial Condition Covenants.
-----------------------------
(a) Consolidated Leverage Ratio.
---------------------------- The Parent will not permit
the Consolidated Leverage Ratio at any time to be greater than 2.50 to 1.0.
(b) Consolidated Interest Coverage Ratio.
------------------------------------ The Parent will not
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters of the Parent to be less than 6.00 to 1.0.
<PAGE>
46
SECTION 6.02. Indebtedness.
------------ The Parent will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.02 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (together with any premium paid thereon and reasonable costs
and expenses incurred with respect thereto);
(c) Indebtedness of the Parent to any Subsidiary and of any
Subsidiary to the Parent or any other Subsidiary;
(d) Guarantees by the Parent of Indebtedness of any
Subsidiary, by any Subsidiary Guarantor of Indebtedness of the Parent
or the Borrower and by any Subsidiary of Indebtedness of any other
Subsidiary (other than the Borrower);
(e) any Indebtedness that may be deemed to arise from the
Permitted Receivables Financing;
(f) Indebtedness of the Loan Parties incurred pursuant to the
Permitted Bond Financing; and
(g) other Indebtedness in an aggregate principal amount not
exceeding $100,000,000 at any time outstanding.
SECTION 6.03. Liens.
----- The Parent will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Parent or any
Subsidiary existing on the date hereof and set forth in Schedule 6.03;
provided that (i) such Lien shall not apply to any other property or
asset of the Parent or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals, refundings and refinancings thereof that do not
increase the outstanding principal amount thereof;
(c) any Lien that may be deemed to arise from the Permitted
Receivables Financing;
(d) Liens on title documents with respect to raw materials or
manufactured products securing drafts or bills of exchange drawn in
connection with the importation of such raw materials or manufactured
products; and
(e) Liens not otherwise permitted by the foregoing clauses
(a) through (d); provided, that the aggregate outstanding principal
amount of obligations secured by Liens permitted by this clause (e),
when added to the then outstanding amount of Attributable Debt, shall
not exceed $100,000,000.
<PAGE>
47
SECTION 6.04. Limitation on Sales and Leasebacks.
----------------------------------- The Parent
will not, and will not permit any Subsidiary to, enter into any arrangement with
any Person providing for the leasing by the Parent or any Subsidiary of real or
personal property which has been or is to be sold or transferred by the Parent
or such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the Parent or such Subsidiary (each, a "Sale/Leaseback
Transaction"), unless the aggregate outstanding principal amount of Attributable
Debt resulting from all such transactions, when added to the then outstanding
amount of obligations secured by Liens permitted by Section 6.03(e), does not at
any time exceed $100,000,000.
SECTION 6.05. Fundamental Changes.
-------------------- The Parent will not, and
will not permit any Subsidiary to, 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 Parent and its Subsidiaries taken as a
whole), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (a) any Person may merge into the Parent in a transaction in which
the Parent is the surviving corporation and, if such Person is the Borrower, the
Parent assumes the obligations of the Borrower hereunder and under the other
Loan Documents pursuant to a written instrument in form and substance
satisfactory to the Administrative Agent, (b) any Person (other than the Parent
or the Borrower) may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, (c) any Subsidiary may sell, transfer, lease
or otherwise dispose of its assets to the Borrower or to another Subsidiary and
(d) any Subsidiary (other than the Borrower) may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.06; and provided, further, that a Subsidiary
Guarantor shall not be permitted to merge into, or sell, transfer, lease or
otherwise dispose of all or substantially all of its assets to, another
Subsidiary which is not at the time of such merger or disposition a Subsidiary
Guarantor and which, in the case of a merger, will be the surviving entity of
such merger unless concurrently with the consummation of such merger or
disposition such surviving or receiving Subsidiary shall execute an assumption
agreement with respect to the Subsidiary Guarantee and furnish a legal opinion
with respect thereto comparable, to the extent applicable, to the legal opinions
delivered in respect of the Subsidiary Guarantees on the Effective Date.
SECTION 6.06. Investments, Loans, Advances, Guarantees
-------------------------------------------
and Acquisitions.
- ----------------The Parent will not, and will not permit any of its Subsidiaries
to, purchase or acquire (including pursuant to any merger with any Person that
was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make any loans or advances to,
Guarantee any obligations of, or make any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(a) equity investments in any Person so long as, in each case,
after giving effect thereto and any financing thereof, (i) no Default
or Event of Default shall have occurred and be continuing (including,
on a pro forma basis, pursuant to Section 6.01) and (ii) over 70% of
the revenues of the Parent and its Subsidiaries taken as a whole shall
not derive from businesses that are substantially different from those
engaged in on the Effective Date;
<PAGE>
48
(b) loans or advances made to the Parent or any Subsidiary so
long as, in each case, after giving effect thereto and any financing
thereof, no Default or Event of Default shall have occurred and be
continuing (including, on a pro forma basis, pursuant to Section 6.01);
(c) investments in Cash Equivalents;
(d) loans or advances made by the Parent or any Subsidiary to
their respective employees in connection with employment-related
matters; and
(e) Guarantees constituting Indebtedness not prohibited by
Section 6.02.
SECTION 6.07. Restricted Payments.
------------------- The Parent will not declare
or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, unless, after giving effect thereto and any financing thereof, no
Default or Event of Default shall have occurred and be continuing (including, on
a pro forma basis, pursuant to Section 6.01).
SECTION 6.08. Transactions with Affiliates.
------------------------------ The Parent will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) (i) transactions in the ordinary course of
business and (ii) repurchases of shares of the Parent's capital stock, to the
extent permitted by this Agreement, from affiliates of Clayton, Dubilier & Rice,
Inc., in each case, at prices and on terms and conditions not less favorable to
the Parent or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) transactions between or among the Parent and
its Subsidiaries not involving any other Affiliate and (c) any Restricted
Payment permitted by Section 6.07.
SECTION 6.09. Restrictive Agreements.
---------------------- The Parent will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Parent or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock to the Parent or
any other Subsidiary or (c) the ability of any Subsidiary to make or repay loans
or advances to the Parent or any other Subsidiary or to transfer property to the
Parent or any other Subsidiary or to Guarantee Indebtedness of the Parent or any
other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.09A (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to restrictions
and conditions contained in the documentation governing the Permitted Bond
Financing so long as (A) no such restriction or condition is more restrictive
from those set forth in this Agreement, (B) such restrictions and conditions,
taken as a whole, are consistent with those generally applicable in the market
for debt securities to companies of similar credit quality as the issuer under
the Permitted Bond Financing and (C) such restrictions and conditions are
reasonably satisfactory to the Administrative Agent or, to the extent such
restrictions and conditions are not reasonably satisfactory to the
Administrative Agent, to the Required Lenders, (iv) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (v) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (vi) clause (c)
<PAGE>
49
of the foregoing shall not apply to the subordination provisions of any
subordinated Indebtedness permitted hereunder, (vii) clauses (a) and (c) of the
foregoing shall not apply to customary provisions in leases restricting the
assignment thereof and (viii) the foregoing shall not apply to Indebtedness of
any Person that becomes a Subsidiary after the date hereof, provided that (A)
such Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary and (B) the aggregate principal amount of the Indebtedness described
in this clause (viii) shall not exceed $25,000,000 at any time outstanding.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or
on behalf of the Parent or any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with this Agreement or any amendment or
modification hereof, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) the Parent or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section
5.02(a) or (d), 5.03 (with respect to the Parent's or the Borrower's
existence) or 5.08 or in Article VI;
(e) the Parent or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in this
Agreement (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30
days after written notice thereof from the Administrative Agent (given
at the request of the Required Lenders) to the Borrower;
(f) the guarantee contained in Article IX hereof or in the
Subsidiary Guarantee shall cease, for any reason, to be in full force
and effect (other than in connection with a release of a Subsidiary
Guarantor permitted by Section 10.02(b)(iv)) or any Loan Party or any
Affiliate of any Loan Party shall so assert;
(g) the Parent or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable (after giving effect to any applicable grace period);
<PAGE>
50
(h) (i) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with the giving of notice, if required) the
holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity or (ii) a Notice of
Termination or any comparable notice shall have been given to the
Parent or any Subsidiary pursuant to any Permitted Receivables
Financing or a Termination Event or any comparable event shall occur
under any Permitted Receivables Financing and such occurrence either
(A) permits a Notice of Termination or any comparable notice to be
given to the Parent or any Subsidiary thereunder or (B) results in the
automatic termination of any such Permitted Receivables Financing;
(i) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Parent, the Borrower
or any other Material Worldwide Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent, the
Borrower or any other Material Worldwide Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(j) the Parent, the Borrower or any other Material Worldwide
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Parent, the Borrower or any other Material Worldwide Subsidiary or for
a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action to authorize any of the foregoing;
(k) the Parent, the Borrower or any other Material Worldwide
Subsidiary shall become unable, admit in writing or fail generally to
pay its debts as they become due;
(l) one or more judgments for the payment of money in an
aggregate amount in excess of $20,000,000 shall be rendered against the
Parent, any Subsidiary or any combination thereof and the same shall
remain unsatisfied, unvacated and unstayed and unbonded pending appeal
for a period of 30 consecutive days, except as covered by adequate
insurance with, in the reasonable judgment of the Administrative Agent,
a reputable carrier and with respect to which an action is pending in
which an active defense is being made with respect thereto;
(m) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a
Material Adverse Effect; or
(n) a Change in Control shall occur;
<PAGE>
51
then, and in every such event (other than an event with respect to the Borrower
described in clause (i) or (j) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (i) or (j) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Lender hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Parent or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Parent or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders, except for its own gross negligence or wilful misconduct.
The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
<PAGE>
52
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Lender and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
with the consent of the Borrower, not to be unreasonably withheld, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and the Borrower, and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Neither the Documentation Agent nor the Syndication Agent
shall have any duties or responsibilities hereunder in its capacity as such.
<PAGE>
53
ARTICLE IX
IX.
Parent Guarantee
SECTION 9.01. Guarantee.
--------- In order to induce the Administrative
Agent and the Lenders to execute and deliver this Agreement and to make or
maintain the Loans hereunder, and in consideration thereof, the Parent hereby
unconditionally and irrevocably guarantees to the Administrative Agent, for the
ratable benefit of the Lenders, the prompt and complete payment and performance
by the Borrower when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations, and the Parent further agrees to pay any and all
reasonable expenses (including, without limitation, all reasonable fees, charges
and disbursements of counsel for the Administrative Agent and one additional
firm of counsel for the Lenders) which may be paid or incurred by the
Administrative Agent or by the Lenders in enforcing, or obtaining advice of
counsel in respect of, any of their rights under the guarantee contained in this
Article IX. The guarantee contained in this Article IX, subject to Section 9.05,
shall remain in full force and effect until the Obligations are paid in full, no
Letter of Credit remains outstanding and the Commitments are terminated,
notwithstanding that from time to time prior thereto the Borrower may be free
from any Obligations.
The Parent agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability under this Article IX, it will notify the
Administrative Agent and such Lender in writing that such payment is made under
the guarantee contained in this Article IX for such purpose. No payment or
payments made by the Borrower or any other Person or received or collected by
the Administrative Agent or any Lender from the Borrower or any other Person by
virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Parent under this Article IX which, notwithstanding any
such payment or payments, shall remain liable for the Obligations until, subject
to Section 9.05, the Obligations are paid in full, no Letter of Credit remains
outstanding and the Commitments are terminated.
SECTION 9.02. No Subrogation, Contribution, Reimbursement or
----------------------------------------------
Indemnity. Notwithstanding anything to the contrary in this Article IX, the
- ---------
Parent hereby irrevocably waives all rights which may have arisen in connection
with the guarantee contained in this Article IX to be subrogated to any of the
rights (whether contractual, under the United States Bankruptcy Code (or similar
action under any successor law or under any comparable law), including Section
509 thereof, under common law or otherwise) of the Administrative Agent or any
Lender against the Borrower or against the Administrative Agent or any Lender
for the payment of the Obligations, until the Obligations shall have been paid
in full, no Letter of Credit remains outstanding and the Commitments shall have
been terminated. The Parent hereby further irrevocably waives all contractual,
common law, statutory and other rights of reimbursement, contribution,
exoneration or indemnity (or any similar right) from or against the Borrower or
any other Loan Party which may have arisen in connection with the guarantee
contained in this Article IX, until the Obligations shall have been paid in
full, no Letter of Credit remains outstanding and the Commitments shall have
been terminated. So long as the Obligations remain outstanding, if any amount
shall be paid by or on behalf of the Borrower to the Parent on account of any of
the rights waived in this Section 9.02, such amount shall be held by the Parent
in trust, segregated from other funds of the Parent, and shall, forthwith upon
receipt by the Parent, be turned over to the Administrative Agent in the exact
form received by the Parent (duly indorsed by the Parent to the Administrative
Agent, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine. The
<PAGE>
54
provisions of this Section 9.02 shall survive the term of the guarantee
contained in this Article IX and the payment in full of the Obligations, the
expiration or termination of the Letters of Credit and the termination of the
Commitments.
SECTION 9.03. Amendments, etc. with respect to the
------------------------------------
Obligations. The Parent shall remain obligated under this Article IX
- -----------
notwithstanding that, without any reservation of rights against the Parent,
and without notice to or further assent by the Parent, any demand for payment
of or reduction in the principal amount of any of the Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative Agent
or such Lender, and any of the Obligations continued, and the Obligations, or
the liability of any other party upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered
or released by the Administrative Agent or any Lender, and this Agreement,
any other Loan Document, and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated,
in whole or in part, as the Lenders (or the Required Lenders, as the case may
be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent
or any Lender for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Lender shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for the
guarantee contained in this Article IX or any property subject thereto.
SECTION 9.04. Guarantee Absolute and Unconditional.
------------------------------------ The Parent
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Article IX or
acceptance of the guarantee contained in this Article IX; the Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Article IX; and all dealings between the Borrower or
the Parent, on the one hand, and the Administrative Agent and the Lenders, on
the other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Article IX. The
Parent waives diligence, presentment, protest, demand for payment and notice of
default or nonpayment to or upon the Borrower or the Parent with respect to the
Obligations. The guarantee contained in this Article IX shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of this Agreement or any other Loan Document,
any of the Obligations or any collateral security therefor or guarantee or right
of offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, setoff or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower against the Administrative Agent or
any Lender, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of the Borrower or the Parent) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Parent under the guarantee contained in this Article IX,
in bankruptcy or in any other instance. When the Administrative Agent or any
Lender is pursuing its rights and remedies under this Article IX against the
Parent, the Administrative Agent or any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Borrower or any other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and any failure by
the Administrative Agent or any Lender to pursue such other rights or remedies
or to collect any payments from the Borrower or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower or any such other Person or of
any such collateral security, guarantee or right of offset, shall not relieve
<PAGE>
55
the Parent of any liability under this Article IX, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent and the Lenders against the Parent.
SECTION 9.05. Reinstatement.
------------- The guarantee contained in this
Article IX shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
SECTION 9.06. Payments.
-------- The Parent hereby agrees that any
payments in respect of the Obligations pursuant to this Article IX will be paid
to the Administrative Agent without setoff or counterclaim in the relevant
currency at the office of the Administrative Agent specified in Section 10.02.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices.
------- Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at One Lexmark Center Drive,
Lexington, Kentucky 40550, Attention of Treasurer (Telecopy No. (606)
232-5137), with a copy to the General Counsel at the same address
(Telecopy No. (606) 232-3128);
(b) if to the Administrative Agent, as applicable, to The
Chase Manhattan Bank, Agent Bank Services Group, Grand Central Tower,
140 East 45th Street, New York, New York 10017, Attention of Gloria
Javier (Telecopy No. (212) 270-0002) or to Chase Manhattan plc, 125
London Wall, London, England, Attention of Stephen Clarke (Telecopy No.
011-44-171-777-2360), in each case with a copy to The Chase Manhattan
Bank, 270 Park Avenue, New York 10017, Attention of Hamish Buckland
(Telecopy No. (212) 270-1063); and
(c) if to any Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. Each such
notice, request or other communication shall be effective (i) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (ii) if given by any other means,
when transmitted to the number or delivered to the address specified in or
pursuant to this Section 10.01; provided that notices to the Administrative
Agent shall not be effective until received.
SECTION 10.02. Waivers; Amendments.
------------------- (a) No failure or delay by
the Administrative Agent, the Issuing Lender or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
<PAGE>
56
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Lender and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Parent or the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Lender may have had notice or
knowledge of such Default at the time.
(b). Neither this Agreement nor any other Loan Document, nor
any provision hereof or thereof, may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by each Loan
Party party thereto and the Required Lenders or by such Loan Parties and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender directly affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender directly affected thereby, (iv) release all or
substantially all of the Subsidiary Guarantors from their obligations under the
Subsidiary Guarantee or the Parent from its obligations under Article IX,
without the written consent of each Lender (it being understood that any release
pursuant to a transaction permitted by Section 6.05 shall be automatic and shall
not require the consent of any of the Lenders), or (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Lender or any
Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Lender or such Swingline Lender, as the case
may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
------------------------------------- (a) The
Parent and the Borrower jointly and severally agree to pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent ("Agent's Counsel"), in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Lender in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of Agent's Counsel and one
additional firm of counsel for the Lenders, in connection with the enforcement
or protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including in connection with any workout, restructuring
or negotiations in respect thereof.
(b) The Parent and the Borrower jointly and severally agree
to indemnify the Administrative Agent and each Lender, and each Related Party of
<PAGE>
57
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Lender to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Parent or any of its
Subsidiaries, or any Environmental Liability related in any way to the Parent or
any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, the Issuing Lender or any
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Lender or the
Swingline Lender, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the
Issuing Lender or such Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Parent and
the Borrower shall not assert, and hereby waive, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
----------------------- (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
neither the Parent nor the Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Parent or the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Lender and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
<PAGE>
58
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its LC Exposure, the Issuing Lender) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender assigned
pursuant to each such assignment and the amount of the Commitment retained by
the assigning Lender (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) in
each case shall not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, except that this clause (iii) shall
not apply to rights in respect of outstanding Competitive Loans, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; provided further that any
consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (i) or (j) of Article VII has
occurred and is continuing. Upon acceptance and recording pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Lender and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Lender or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
<PAGE>
59
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) the principal amount of the participation sold shall not be
less than $5,000,000, (ii) such Lender's obligations, including such Lender's
Commitment, under this Agreement shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iv) the Borrower, the Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender in accordance with applicable law, including any such
pledge or assignment to a Federal Reserve Bank, and this Section shall not apply
to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such assignee for such Lender as a
party hereto.
SECTION 10.05. Survival.
-------- All covenants, agreements,
representations and warranties made by the Loan Parties herein and in the other
Loan Documents, or in any certificates or other instruments delivered in
connection with or pursuant to this Agreement or the other Loan Documents, shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 10.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness.
---------------------------------------- This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
<PAGE>
60
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability.
------------ Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff.
--------------- If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Parent or the Borrower against any of
and all the obligations of the Parent or the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and, with the approval of
the Required Lenders, although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.09. Judgment Currency.
------------------ (a) The obligations of the
Parent and the Borrower hereunder and under the other Loan Documents to make
payments in a specified currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent or a Lender of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such
Lender under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against any Loan Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the Business Day
immediately preceding the date on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Parent and the Borrower agree to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount), as may
be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
<PAGE>
61
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange or
currency equivalent for this Section, such amounts shall include any premium and
costs payable in connection with the purchase of the Obligation Currency.
SECTION 10.10. Governing Law; Jurisdiction; Consent to
---------------------------------------
Service of Process. (a) This Agreement shall be construed in accordance with
- ------------------ and governed by the law of the State of New York.
(b) Each of the Parent and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Lender, any Lender or any Loan Party may
otherwise have to bring any action or proceeding relating to this Agreement in
the courts of any jurisdiction.
(c) Each of the Parent and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court specifically referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each of the Parent and the Borrower irrevocably consents
to service of process in the manner provided for notices in Section 10.01.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 10.11. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
<PAGE>
62
SECTION 10.12. Headings . Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.13. Confidentiality . Each of the Administrative
Agent, the Issuing Lender and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) upon
the order of a court or administrative agency, (d) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (e)
to any other party to this Agreement, (f) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (g) subject to a written agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (h) with the consent of
the Borrower or (i) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis from a source other than the Parent or the Borrower;
provided that, in the case of the events described in clauses (b), (c) and (d),
the party making such disclosure shall as promptly as practicable provide notice
to the Parent of the occurrence of any such event (it being understood that the
giving of such notice shall not be a precondition for the disclosure of the
Information required upon the occurrence of any such event). For the purposes of
this Section, "Information" means all information received from the Parent or
the Borrower relating to the Parent, its Subsidiaries or their respective
businesses, other than any such information that is available to the
Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis prior to disclosure by the Parent or the Borrower; provided that, in the
case of information received from the Parent or the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
<PAGE>
63
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
LEXMARK INTERNATIONAL GROUP, INC.
By \ s \
------------------------------
Name: Gary E. Morin
Title: Vice President and
Chief Financial
Officer
LEXMARK INTERNATIONAL, INC.
By \ s \
------------------------------
Name: Gary E. Morin
Title: Vice President and
Chief Financial
Officer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
By \ s \
------------------------------
Name: John F. Mix
Title: Vice President
<PAGE>
64
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: \ s \
-------------------------------
Name: Roger J. Fleischmann, Jr.
Title: Vice President
<PAGE>
65
THE BANK OF NEW YORK
By: \ s \
-------------------------------
Name: Douglas Ober
Title: Vice President
<PAGE>
66
THE BANK OF NOVA SCOTIA
By: \ s \
-------------------------------
Name: J.R. Trimble
Title: Senior Relationship
Manager
<PAGE>
67
BANK ONE, KENTUCKY N.A.
By: \ s \
-------------------------------
Name: F.N. Wilms
Title: Vice President
<PAGE>
68
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: \ s \
-------------------------------
Name: Robert Jay Heiple
Title: Executive Vice President
<PAGE>
69
BANQUE NATIONALE DE PARIS
By: \ s \
-------------------------------
Name: Frederick H. Moryl, Jr.
Title: Senior Vice President
<PAGE>
70
BARCLAYS BANK PLC
By: \ s \
-------------------------------
Name: John Giannone
Title: Director
<PAGE>
71
DEUTSCHE BANK AG, NEW YORK BRANCH
AND CAYMAN ISLAND BRANCH
By: \ s \
-------------------------------
Name: Hans-Josef Thiele
Title: Director
By: \ s \
-------------------------------
Name: Stephan A. Wiedemann
Title: Director
<PAGE>
72
FLEET NATIONAL BANK
By: \ s \
-------------------------------
Name: Frank Benesh
Title: Vice President
<PAGE>
73
KEYBANK NATIONAL ASSOCIATION
By: \ s \
-------------------------------
Name: Thomas A. Crandell
Title: Vice President
<PAGE>
74
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: \ s \
-------------------------------
Name: Kathryn Sayko-Yanes
Title: Vice President
<PAGE>
75
NATIONSBANK, N.A.
By: \ s \
-------------------------------
Name: Randall K. Stephens
Title: First Vice President
<PAGE>
76
NBD BANK, N.A.
By: \ s \
-------------------------------
Name: Sharon Ellis
Title: Vice President
<PAGE>
77
PNC BANK, N.A.
By: \ s \
-------------------------------
Name: David F. Knuth
Title: Vice President
<PAGE>
78
WESTPAC BANKING CORP.
By: \ s \
-------------------------------
Name: Kate V. Perry
Title: Assistant Vice President
<PAGE>
SCHEDULE 2.01
Commitments
Lender Commitment
The Chase Manhattan Bank $ 30,000,000
Morgan Guaranty Trust Company $ 30,000,000
Fleet National Bank $ 30,000,000
Bank of America National Trust and Savings Association $ 20,000,000
Bank of Tokyo-Mitsubishi Trust Company $ 20,000,000
Banque Nationale de Paris $ 20,000,000
Barclays Bank PLC $ 20,000,000
Deutsche Bank AG, New York Branch and Cayman Island Branch $ 20,000,000
Nationsbank, N.A. $ 20,000,000
The Bank of New York $ 20,000,000
NBD Bank, N.A. $ 20,000,000
Keybank National Association $ 10,000,000
The Bank of Nova Scotia $ 10,000,000
Bank One, Kentucky N.A. $ 10,000,000
PNC Bank $ 10,000,000
Westpac Banking Corp. $ 10,000,000
------------
Total $300,000,000
SWINGLINE LENDERS
The Chase Manhattan Bank
Fleet National Bank
Nationsbank, N.A.
NBD Bank, N.A.
Keybank National Association
<PAGE>
SCHEDULE 3.05
-------------
LEXMARK INTERNATIONAL GROUP, INC. SUBSIDIARIES
Lexmark International, Inc.........................................(Delaware)
Lexmark Asia Pacific Corporation, Inc..............................(Delaware)
Lexmark Canada, Inc................................................(Canada)
Lexmark Deutschland GmbH...........................................(Germany)
Lexmark Espana, L.L.C..............................................(Delaware)
Lexmark Espana, L.L.C. & Cia, S.C..................................(Spain)
Lexmark Europe Holding Company I, L.L.C............................(Delaware)
Lexmark Europe Holding Company, II, L.L.C..........................(Delaware)
Lexmark Europe S.A.R.L.............................................(France)
Lexmark Europe Trading Corporation, Inc. ..........................(Delaware)
Lexmark Foreign Sales Corporation .................................(Barbados)
Lexmark Handelsgesellshaft m.b.H...................................(Austria)
Lexmark Internacional S.A. De C.V. (Mexico Mequiladora)............(Mexico)
Lexmark International (Australia) PTY Limited......................(Australia)
Lexmark International B.V..........................................(Netherlands)
Lexmark International (China) Limited..............................(China)
Lexmark International De Argentina, Inc............................(Delaware)
Lexmark International De Mexico, Inc...............................(Delaware)
Lexmark International Do Brasil Limitada...........................(Brazil)
Lexmark International Finance B.V..................................(Netherlands)
Lexmark International Financial Services Company Ltd...............(Ireland)
Lexmark International (Ireland) Ltd................................(Ireland)
Lexmark International, K.K. .......................................(Japan)
Lexmark International (Korea), Inc.................................(Korea)
Lexmark International Ltd..........................................(U.K)
Lexmark International (Portugal) Servicos de Assistencia e Marketing,
Unipessoal, Lda. ................................................(Portugal)
Lexmark International S.A..........................................(Belgium)
Lexmark International (Scotland) Ltd...............................(Scotland)
Lexmark International Service and Support Center Limited...........(Ireland)
Lexmark International (Singapore) PTE LTD..........................(Singapore)
Lexmark International S.N.C........................................(France)
Lexmark International S.r.l........................................(Italy)
Lexmark International Technology S.A...............................(Switzerland)
Lexmark International Trading Corp.................................(Delaware)
Lexmark Mexico Holding Company, Inc................................(Delaware)
Lexmark Nordic, L.L.C..............................................(Delaware)
Lexmark Pacific PTY Limited........................................(Australia)
Lexmark Receivables Corporation....................................(Delaware)
Lexmark S.A.R.L. ..................................................(France)
Lexmark (Schweiz) AG...............................................(Switzerland)
Lexington Tooling Corporation......................................(Delaware)
SCI Lexmark International III......................................(France)
SCI Lexmark International IV.......................................(France)
Societe Printmark SA...............................................(France)
Blue Mark International SA.........................................(France)
<PAGE>
Schedule 3.06
-------------
Disclosed Matters
1. International Business Machines Corporation ("IBM") v. Lexmark
International Group, Inc. (f/k/a Lexmark Holding, Inc., f/k/a Lexington
Holding Corporation) ("Lexmark"). A Complaint was filed by IBM on
December 31, 1997 in the United States District Court of the Southern
District of New York. In its Complaint, IBM alleges breach of contract
and damages in excess of $78 million. On January 19, 1998, Lexmark filed
an Answer and Counterclaim in which Lexmark denies that it breached the
agreements at issue. In its Counterclaim, Lexmark alleges breach of
contract by IBM and damages in excess of $84.2 million.
<PAGE>
Schedule 3.11
-------------
ERISA Matters
1. Asset transfer in accordance with Section 414(l) of the Code with
respect to employees returning to International Business Machines
Corporation ("IBM") under the Transition Retirement Leave Program as
referred to in the Amended and Restated Master Acquisition Agreement,
dated as of December 19, 1990, as amended, between IBM and the Parent.
<PAGE>
Schedule 6.02
-------------
Existing Indebtedness
1. Lexmark International Do Brasil Limitada $8,000,000 revolving credit
agreement
2. Lexmark International, K.K. (Japan) overdraft line with Bank of Tokyo
Mitsubishi dated March 1996 - $400,000
3. Lexmark International, K.K. (Japan) term loan with Bank of Tokyo Mitsubishi
dated March 1996 - $120,000
4. Lexmark International (Australia) PTY Limited capital lease with IBM
Australia Credit Limited dated July 1, 1997 - $242,000
5. Lexmark International, Inc. Lease guaranties dated February 1, 1996 and
March 27, 1996 for Healthcare Data Corp. - $300,000 (in aggregate)
6. Lexmark International S.N.C./Lexmark International Financial Services
Company Ltd. overdraft line - $5,000,000
7. Lexmark International Ltd. (UK) overdraft with Barclays Bank - $1,500,000
8. Lexmark Handelsgesellschaft m.b. H. (Austria) overdraft line - $800,000
9. Lexmark International (Scotland) Ltd. overdraft line - $800,000
10. Lexmark International Technology S. A. (Switzerland) overdraft line -
$500,000
11. Lexmark International, Inc. Unconditional Payment Guarantee dated December
1997 to B.N.P. La Defense Branch - $13,000,000
12. Lexmark Europe S.A.R.L. overdraft line - $2,000,000
13. Lexmark International, Inc. Customs Guaranty line - $3,000,000
14. Lexmark International, S.N.C. Letter of Credit - $500,000
<PAGE>
Schedule 6.03
-------------
Existing Liens
None.
<PAGE>
Schedule 6.09A
--------------
Existing Restrictions
None.
<PAGE>
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of January
__, 1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Lexmark International Group, Inc. (the "Parent"),
Lexmark International, Inc. (the "Borrower"), the Lenders named therein and The
Chase Manhattan Bank, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"). Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
and (b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Parent, any of its Subsidiaries or any
other obligor or the performance or observance by the Parent, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 3.04 or 5.01
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender.
<PAGE>
4. The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent and to the Borrower for their
consent (if such consent is required) and, if such consent is granted, for
acceptance and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent).
5. Upon such consent, acceptance and recording, from and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignee whether such amounts have accrued prior
to or on or after the Effective Date. The Assignor and the Assignee shall make
all appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1 to Assignment and Acceptance
relating to the Credit Agreement, dated as of January __, 1998,
among Lexmark International Group, Inc.,
Lexmark International, Inc.,
the Lenders parties thereto, and
The Chase Manhattan Bank, as Administrative Agent
Name of Assignor: ----------------------
Name of Assignee: ----------------------
Effective Date of Assignment: ----------
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned
$ -------- ----.-------- %
[Name of Assignee] [Name of Assignor]
By: --------------------------- By: ----------------------------
Title: ----------------------- Title: -------------------------
[Consented to and] Accepted: [Consented To:
THE CHASE MANHATTAN BANK, LEXMARK INTERNATIONAL, INC.
as Administrative Agent
By: -------------------------- By: ----------------------------
Title: ----------------------- Title: -------------------------
<PAGE>
EXHIBIT C
FORM OF
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of _______ __, ____, made by
each of the entities that are signatories hereto (together with any other entity
that may become a party hereto after the date hereof as provided herein, the
"Guarantors"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "Administrative Agent") for the lenders (the "Lenders")
parties to the Credit Agreement, dated as of January 27, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Lexmark International Group, Inc. (the "Parent"), Lexmark International,
Inc. (the "Borrower"), the Lenders and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
corporations that includes each Guarantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Borrower to make valuable
transfers to the Guarantors in connection with the operation of their respective
businesses;
WHEREAS, the Borrower and the Guarantors are engaged in
related businesses, and each Guarantor will derive substantial direct and
indirect benefit from the making of the extensions of credit under the Credit
Agreement; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreement that the Guarantors shall have executed and delivered this
Guarantee to the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower under the Credit Agreement, the Guarantors hereby agree with the
Administrative Agent, for the ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(b)As used herein, "Obligations" means the unpaid principal of
and interest on (including, without limitation, interest accruing after the
maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent or to
any Lender, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, any other Loan Document or any other
<PAGE>
document made, delivered or given in connection therewith, whether on account of
principal, interest, fees, reimbursement obligations, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent or to the Lenders that are required to be
paid by the Borrower or any Guarantor pursuant to the terms of the Credit
Agreement, this Guarantee or any other Loan Document).
(c)The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise specified.
(d)The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee (a) Subject to the provisions of Section , each
of the Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors.
(c)Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel to the
Administrative Agent and one additional firm of counsel for the Lenders) which
may be paid or incurred by the Administrative Agent or any Lender in enforcing,
or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, such Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrower may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights and remedies
of the Administrative Agent or any Lender hereunder.
(e) No payment or payments made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Administrative Agent or any Lender from the Borrower, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments (other than payments made by
such Guarantor in respect of the Obligations or payments received or collected
from such Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid in full and the Commitments are terminated.
(f) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent in writing that such payment is made under this Guarantee for such
purpose.
<PAGE>
3. Right of Contribution. Each Guarantor hereby agrees that
to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder who has not
paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section hereof. The
provisions of this Section shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the Lenders, and
each Guarantor shall remain liable to the Administrative Agent and the Lenders
for the full amount guaranteed by such Guarantor hereunder.
4. Right of Set-off. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Guarantor against any of and all the
obligations of such Guarantor now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and, with the approval of the Required Lenders,
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
5. No Subrogation. Notwithstanding any payment or payments
made by any of the Guarantors hereunder or any set-off or application of funds
of any of the Guarantors by any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by any Lender for the payment of the
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Administrative Agent and the Lenders by the Borrower on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
6. Amendments, etc. with respect to the Obligations; Waiver
of Rights. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
such party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement and the other Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all the Lenders, as the case
may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor any Lender shall
have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Obligations or for this Guarantee or any property
subject thereto. When making any demand hereunder against any of the Guarantors,
the Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any other Guarantor or guarantor, and
any failure by the Administrative Agent or any Lender to make any such demand or
to collect any payments from the Borrower or any such other Guarantor or
guarantor or any release of the Borrower or such other Guarantor or guarantor
shall not relieve any of the Guarantors in respect of which a demand or
<PAGE>
collection is not made or any of the Guarantors not so released of their several
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Lender against any of the Guarantors. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Guarantee or acceptance of this Guarantee, the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between the Borrower and any of the
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that this Guarantee shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Credit Agreement or any
other Loan Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Obligations, or of such
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrower or any other
Person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any failure by the Administrative
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve such Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent and the Lenders against such Guarantor. This Guarantee shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Administrative Agent and the Lenders, and their
respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
<PAGE>
9. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in U.S. Dollars at the office of the Administrative Agent located
at 270 Park Avenue, New York, New York 10017.
10. Authority of Administrative Agent. Each Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and such Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
11. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or any Guarantor shall be effected in the
manner provided for in Section 10.01 of the Credit Agreement; provided that any
such notice, request or demand to or upon any Guarantor shall be addressed to
such Guarantor at its notice address set forth on Schedule 1.
12. Counterparts. This Guarantee may be executed by one or
more of the Guarantors on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
Guarantors shall be lodged with the Administrative Agent.
13. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. Integration. This Guarantee represents the agreement of
each Guarantor with respect to the subject matter hereof and there are no
promises or representations by the Administrative Agent or any Lender relative
to the subject matter hereof not reflected herein.
15. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except in accordance with Section 10.02 of
the Credit Agreement.
(b) Neither the Administrative Agent nor any Lender shall by
any act (except by a written instrument pursuant to Section 15(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or such
Lender would otherwise have on any future occasion.
<PAGE>
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
16. Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
17. Successors and Assigns. This Guarantee shall be binding
upon the successors and assigns of each Guarantor and shall inure to the benefit
of the Administrative Agent and the Lenders and their successors and assigns.
18. Additional Guarantors . Each Person that is required to
become a party to this Guarantee pursuant to Section 5.09 of the Credit
Agreement shall become a Guarantor for all purposes of this Guarantee upon
execution and delivery by such Person of an Assumption Agreement in the form of
Annex 1 hereto.
19. Governing Law; Jurisdiction; Consent to Service of
Process. (a) THIS GUARANTEE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
(b) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Guarantee, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Guarantee shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Guarantee
against any Guarantor or its properties in the courts of any jurisdiction.
(c) Each Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guarantee in any court
referred to in paragraph (b) of this Section. Each Guarantor hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each Guarantor irrevocably consents to service of process
in the manner provided for notices in Section 11. Nothing in this Guarantee will
affect the right of the Administrative Agent or any Lender to serve process in
any other manner permitted by law.
20. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
<PAGE>
[NAME OF GUARANTOR]
By ---------------------------
Name:
Title:
<PAGE>
Schedule 1 to
Subsidiary Guarantee
NOTICE ADDRESSES FOR GUARANTORS
Name of Guarantor Notice Address, Telephone & Fax
<PAGE>
Annex 1 to
Subsidiary Guarantee
ASSUMPTION AGREEMENT, dated as of ________________, 199_, made
by ______________________________, a ______________ corporation (the "Additional
Guarantor"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "Administrative Agent") for the banks, financial institutions
and other entities (the "Lenders") parties to the Credit Agreement referred to
below. All capitalized terms not defined herein shall have the meaning ascribed
to them in such Credit Agreement.
W I T N E S S E T H :
WHEREAS, Lexmark International Group, Inc. (the "Parent"),
Lexmark International, Inc. (the "Borrower"), the Lenders and the Administrative
Agent have entered into a Credit Agreement, dated as of January __, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower
and certain of its Affiliates (other than the Additional Guarantor) have entered
into the Subsidiary Guarantee, dated as of January __, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Subsidiary
Guarantee") in favor of the Administrative Agent for the benefit of the Lenders;
WHEREAS, the Credit Agreement requires the Additional
Guarantor to become a party to the Subsidiary Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Subsidiary
Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Subsidiary Guarantee. By executing and delivering this
Assumption Agreement, the Additional Guarantor, as provided in Section 18 of the
Subsidiary Guarantee, hereby becomes a party to the Subsidiary Guarantee as a
Guarantor thereunder with the same force and effect as if originally named
therein as a Guarantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a Guarantor
thereunder.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:
Name:
Title:
Address for Notices:
<PAGE>
EXHIBIT D
FORM OF
NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Credit Agreement,
dated as of January __, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Lexmark International Group,
Inc. (the "Parent"), Lexmark International, Inc. (the "Borrower"), the Lenders
parties thereto and The Chase Manhattan Bank, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 2.20(b)
thereof that any bank, financial institution or other entity, although not
originally a party thereto, may become a party to the Credit Agreement with the
consent of the Borrower and the Administrative Agent (which consent, in the case
of the Administrative Agent, shall not be unreasonably withheld) by executing
and delivering to the Borrower and the Administrative Agent a supplement to the
Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned was not an original party to the
Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement
is accepted by the Borrower and the Administrative Agent, become a
Lender for all purposes of the Credit Agreement to the same extent as
if originally a party thereto, with a Commitment of
$__________________.
2. The undersigned (a) represents and warrants that it is
legally authorized to enter into this Supplement; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of
the most recent financial statements delivered pursuant to Section 3.04
or 5.01 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (c) agrees that it
will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement,
the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Administrative Agent
by the terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender.
3. The undersigned's address for notices for the purposes of
the Credit Agreement is as follows:
4. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[INSERT NAME OF LENDER]
By________________________________
Title:
Accepted this _____ day of
- --------------, ----.
LEXMARK INTERNATIONAL, INC.
By____________________________
Title:
Accepted this ____ day of
- --------------, ----.
THE CHASE MANHATTAN BANK, as
Administrative Agent
By____________________________
Title:
<PAGE>
EXHIBIT E
FORM OF
COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _________________, to the Credit Agreement
dated as of January __, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Lexmark International Group,
Inc. (the "Parent"), Lexmark International, Inc. (the "Borrower"), the Lenders
parties thereto and The Chase Manhattan Bank, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 2.20(c)
thereof that any Lender with (when applicable) the consent of the Borrower may
increase the amount of its Commitment by executing and delivering to the
Borrower and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned
now desires to increase the amount of its
Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and
conditions of the Credit Agreement, that on the date this Supplement is
accepted by the Borrower and the Administrative Agent it shall have its
Commitment increased by $______________, thereby making the amount of
its Commitment $______________.
2. Terms defined in the Credit Agreement shall have their
defined meanings when used herein.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[INSERT NAME OF LENDER]
By________________________________
Title:
Accepted this _____ day of
- --------------, ----.
LEXMARK INTERNATIONAL, INC.
By____________________________
Title:
Accepted this ____ day of
- --------------, ----.
THE CHASE MANHATTAN BANK, as
Administrative Agent
By____________________________
Title:
Exhibit 21
----------
Subsidiaries of
Lexmark International Group, Inc.
1. Lexmark International, Inc.
State of Incorporation - Delaware
2. Lexmark International, S.N.C.
Country of Incorporation - France
3. Lexmark International Technology S.A.
Country of Incorporation - Switzerland
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements of
Lexmark International Group, Inc. on Form S-8 (File Nos. 33-99330 and 33-80879)
of our report dated February 18, 1998, on our audits of the consolidated
financial statements and financial statement schedule of Lexmark International
Group, Inc. as of December 31, 1997 and 1996, and for the years ended December
31, 1997, 1996, and 1995 which report is included in this Annual Report on Form
10-K.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Lexington, Kentucky
March 6, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LEXMARK INTERNATIONAL GROUP, INC. FOR THE YEAR
ENDED DECEMBER 31, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 43
<SECURITIES> 0
<RECEIVABLES> 338
<ALLOWANCES> 19
<INVENTORY> 354
<CURRENT-ASSETS> 776
<PP&E> 410
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,208
<CURRENT-LIABILITIES> 548
<BONDS> 57
0
0
<COMMON> 1
<OTHER-SE> 500
<TOTAL-LIABILITY-AND-EQUITY> 1,208
<SALES> 2,494
<TOTAL-REVENUES> 2,494
<CGS> 1,624
<TOTAL-COSTS> 1,624
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 11
<INCOME-PRETAX> 255
<INCOME-TAX> 92
<INCOME-CONTINUING> 163
<DISCONTINUED> 0
<EXTRAORDINARY> (14)
<CHANGES> 0
<NET-INCOME> 149
<EPS-PRIMARY> 2.09
<EPS-DILUTED> 1.98
</TABLE>
