As filed with the Securities and Exchange Commission on September 27, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEXMARK INTERNATIONAL GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-3074422
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
One Lexmark Centre Drive
Lexington, Kentucky 40550
(Address of Principal Executive Offices
including Zip Code)
LEXMARK INTERNATIONAL GROUP, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Vincent J. Cole, Esq.
Vice President, General Counsel and Secretary
One Lexmark Centre Drive
Lexington, Kentucky 40550
(Name and Address of Agent For Service)
606-232-2700
(Telephone Number, Including Area Code, of Agent For Service)
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities To Amount To Offering Price Aggregate Registration
Be Registered Be Registered Per Share Offering Price Fee
Class A Common 3,000,000 $83.1563 (2) $249,468,900 $69,352.35
Stock, par value Shares (1)
$.01 per share
(1) Consists of shares of Lexmark International Group, Inc. Class A Common
Stock ("Common Stock") to be made available under the Plan. Such
indeterminable number of additional shares as may be required in the
event of a stock dividend, stock split, recapitalization or other
similar change in the Common Stock are also hereby registered. In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act") this Registration Statement also covers
an indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h)(1) and Rule 457(c), the proposed maximum
offering price per share is based upon the average of the high and low
sales prices of the Common Stock on September 24, 1999, as reported on
the New York Stock Exchange.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of this Registration Statement will be sent or given to employees as specified
by Rule 428(b)(1) of the Securities Act. Such documents are not required to be
and are not filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the
Commission are incorporated by reference in this Registration Statement:
(a) The Company's and the Plan's latest annual report
filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act");
(b) All other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the documents
referred to in (a) above; and
(c) The description of the Common Stock included in the
Company's Registration Statement on Form 8-A dated
October 27, 1995, and any amendment or report filed
for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
<PAGE>
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
The Common Stock is registered under Section 12(b) of the
Exchange Act, and, therefore, this item is not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") empowers a Delaware corporation to indemnify any
persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding; provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
Article VI of the Company's By-Laws provides for
indemnification by the Company of its directors and officers to the fullest
extent permitted by the Delaware Law. Pursuant to Section 145 of the Delaware
Law, the Company's present and former directors and officers are insured against
any liability asserted against or incurred by them in such capacity or arising
out of their status as such.
Pursuant to specific authority granted by Section 102 of the
Delaware Law, Article FIFTH of the Company's Third Restated Certificate of
Incorporation contains the following provision regarding limitation of liability
of directors and officers:
<PAGE>
(e) No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his
or her fiduciary duty as a director, provided that nothing contained in
this Third Restated Certificate of Incorporation shall eliminate or
limit the liability of a director (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware or (iv) for any
transaction from which the director derived an improper personal
benefit.
Pursuant to the Third Restated Certificate of Incorporation,
the Company has agreed to indemnify the members of the Company's Board of
Directors and its officers to the fullest extent allowable under applicable
Delaware law. In addition, the Company has entered into an indemnification
agreement with each of its directors and certain of its officers indemnifying
each of them against certain liabilities that may arise as a result of their
status or service as directors or officers of the Company.
Pursuant to underwriting agreements filed as exhibits to
registration statements in connection with underwritten offerings of the
Company's securities, various parties thereto have agreed to indemnify each
officer and director of the Registrant and each person, if any, who controls the
Registrant within the meaning of the Securities Act, against certain
liabilities, including liabilities under the Securities Act.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
------ -----------
4.1 Lexmark International Group, Inc. 1999 Employee Stock
Purchase Plan, filed as Exhibit A to the Registrant's
Notice of 1999 Annual Meeting of Stockholders and
Proxy Statement on March 18, 1999, and incorporated
herein by reference.
4.2* Amendment No. 1 to the Lexmark International Group,
Inc. 1999 Employee Stock Purchase Plan.
5* Opinion of Vincent J. Cole, Vice President, General
Counsel and Secretary of the Company.
<PAGE>
23* Consent of PricewaterhouseCoopers LLP.
24* Powers of Attorney.
* Filed with this Registration Statement
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the Registration Statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
<PAGE>
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Lexington, State of Kentucky, on this 27th day of
September, 1999.
LEXMARK INTERNATIONAL GROUP, INC.
By: /s/ Paul J. Curlander
------------------------------
Title: Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE(S)
- --------- --------
/s/ Paul J. Curlander Chairman of the Board, President
- -----------------------------
Paul J. Curlander and Chief Executive Officer
(Principal Executive Officer)
/s/ Gary E. Morin Vice President and Chief Financial
- -----------------------------
Gary E. Morin Officer
(Principal Financial Officer)
<PAGE>
/s/ David L. Goodnight Vice President and Corporate
- -----------------------------
David L. Goodnight Controller
(Principal Accounting Officer)
* Director
- -----------------------------
B. Charles Ames
* Director
- -----------------------------
Frank T. Cary
* Director
- -----------------------------
William R. Fields
Director
- -----------------------------
Ralph E. Gomory
* Director
- -----------------------------
Stephen R. Hardis
* Director
- -----------------------------
James F. Hardymon
* Director
- -----------------------------
Robert Holland, Jr.
* Director
- -----------------------------
Marvin L. Mann
<PAGE>
Director
- -----------------------------
Michael J. Maples
* Director
- -----------------------------
Martin D. Walker
* By signing his name hereto, Vincent J. Cole, signs this document on behalf of
each of the persons indicated above pursuant to powers of attorney duly executed
by such persons.
By: /s/ Vincent J. Cole
---------------------------
Date: September 27, 1999 Vincent J. Cole
(Attorney-in-Fact)
The Plan. Pursuant to the requirements of the Securities Act,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lexington, State of
Kentucky, on September 27, 1999.
1999 EMPLOYEE STOCK PURCHASE PLAN
By: Plan Administrator
By: /s/Kathleen J. Affeldt
------------------------------
Kathleen J. Affeldt
Vice President, Human Resources
<PAGE>
EXHIBIT INDEX
4.1 Lexmark International Group, Inc.1999 Employee Stock
Purchase Plan, filed as Exhibit A to the Registrant's
Notice of 1999 Annual Meeting of Stockholders and
Proxy Statement on March 18, 1999, and incorporated
herein by reference.
4.2* Amendment No. 1 to the Lexmark International Group,
Inc. 1999 Employee Stock Purchase Plan.
5* Opinion of Vincent J. Cole, Vice President, General
Counsel and Secretary of the Company.
23* Consent of PricewaterhouseCoopers LLP.
24* Powers of Attorney.
* Filed herewith.
<PAGE>
EXHIBIT 4.2
AMENDMENT NO. 1
TO THE
LEXMARK INTERNATIONAL GROUP, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
This is Amendment No. 1 to the Lexmark International Group, Inc. 1999
Employee Stock Purchase Plan (the "Plan;" capitalized terms used herein and not
defined have the meaning ascribed to such terms in the Plan).
WHEREAS, pursuant to Section 10.1 of the Plan, upon the occurrence of
an Adjustment Event, which includes, among other things, a stock dividend or
stock split of the Common Stock, the Board is authorized to adjust the number of
shares of Common Stock available for purchase under the Plan as deemed
appropriate by the Board, and in accordance with Section 424 of the Code;
WHEREAS, the Board has approved a two-for-one stock split of the Common
Stock to be effected in the form of a 100% stock dividend on June 10, 1999; and
WHEREAS, Section 7.1 of the Plan currently provides that the aggregate
number of shares of Company Stock which may be issued under the Plan is
1,500,000.
NOW, THEREFORE, the Plan is hereby amended, effective as of June 10,
1999, as follows:
1. Section 7.1 of the Plan is amended in its entirety to read as
follows:
"7.1 Number. The aggregate number of shares of Company Stock
which may be issued under the Plan is 3,000,000."
In all other aspects, the Plan is hereby ratified and confirmed.
<PAGE>
EXHIBIT 5
September 27, 1999
Lexmark International Group, Inc.
One Lexmark Centre Drive
Lexington, Kentucky 40550
LEXMARK INTERNATIONAL GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
I have acted as counsel to Lexmark International Group, Inc. (the "Company"), a
Delaware corporation, in connection with a Registration Statement on Form S-8
(the "Registration Statement") filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"), relating to 3,000,000 shares of the Company's Class A
Common Stock, par value $.01 per share, ("Shares") authorized for issuance under
the Company's 1999 Employee Stock Purchase Plan (the "Plan").
In so acting, I have examined and relied upon the originals, or copies certified
or otherwise identified to my satisfaction, of such records, documents,
certificates and other instruments as in my judgment are necessary or
appropriate to enable me to render the opinion expressed below.
I am of the opinion that the Shares have been duly authorized and will be
validly issued, fully paid and non-assessable by the Company when issued to the
purchasers thereof against payment therefor in accordance with the terms of the
Plan.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving such consent, I do not thereby concede that I am within the
category of person whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Vincent J. Cole
Vincent J. Cole
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 11, 1999 relating to the
consolidated financial statements, which appears in the 1998 Annual Report of
Lexmark International Group, Inc., which is incorporated by reference in Lexmark
International Group, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998. We also consent to the incorporation by reference of our
report dated February 11, 1999 relating to the financial statement schedule,
which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Lexington, Kentucky
September 27, 1999
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
of Lexmark International Group, Inc., a Delaware corporation ("Lexmark"), does
hereby make, constitute and appoint Paul J. Curlander, Gary E. Morin and Vincent
J. Cole, the address of each of which is in care of Lexmark, One Lexmark Centre
Drive, Lexington, Kentucky 40550, and each of them, the true and lawful attorney
for the undersigned, with full power of substitution and revocation to each for
the undersigned, and in the name, place and stead of the undersigned, to sign in
any and all capacities and to file or cause to be filed, a Registration
Statement on Form S-8 registering shares of Lexmark's Class A Common Stock, par
value $.01, in connection with the Lexmark 1999 Employee Stock Purchase Plan,
with the Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Act of 1933, as amended, and any and all amendments to such Form S-8,
as well as such other instruments that may be necessary or desirable to enable
Lexmark to comply with any rules, regulations or requirements of the Commission
and the securities or Blue Sky laws of any state or other governmental
subdivision, hereby giving to each of such attorneys full power to do everything
whatsoever required or necessary to be accomplished in and about the premises as
fully as the undersigned could do if personally present, hereby ratifying and
confirming all that such attorneys or substitutes or any of them shall lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have set their hands this 24th day
of September, 1999.
/s/ B. Charles Ames /s/ Frank T. Cary
- ------------------------ ------------------------
B. Charles Ames Frank T. Cary
/s/ William R. Fields
- ------------------------ ------------------------
William R. Fields Ralph E. Gomory
/s/ Stephen R. Hardis /s/ James F. Hardymon
- ------------------------ ------------------------
Stephen R. Hardis James F. Hardymon
/s/ Robert Holland, Jr. /s/ Marvin L. Mann
- ------------------------ ------------------------
Robert Holland, Jr. Marvin L. Mann
/s/ Martin D. Walker
- ------------------------ ------------------------
Michael J. Maples Martin D. Walker
