Exhibit 3(i)
RESTATED CERTIFICATE OF INCORPORATION
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OF
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LEXMARK INTERNATIONAL, INC.
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1. The name of the corporation is Lexmark International, Inc. (the
"Corporation"). The Corporation was incorporated under the name New York Libra
Corporation.
2. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on May 25, 1990, and was amended
on December 13, 1990 and further amended on March 27, 1991.
3. This Restated Certificate of Incorporation of the Corporation, which restates
and integrates and further amends the Certificate of Incorporation, as amended,
of the Corporation was duly adopted by written consent of the sole stockholder
of the Corporation without a meeting in accordance with the provisions of
Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware and a notice of the taking of such action without a meeting has been
provided in accordance with Section 228 thereof:
FIRST: The name of the Corporation is Lexmark International,
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Inc.
SECOND: The Corporation's registered office in the State of
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Delaware is at 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD: The nature of the business of the Corporation and its
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purpose is to engage in any lawful acts or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock
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which the Corporation shall have authority to issue is Nine Hundred Eleven
Million Six Hundred Thousand (911,600,000) shares, consisting of (i) 900,000,000
shares of Class A Common Stock, par value $.01 per share (the "Class A Common
Stock"), (ii) 10,000,000 shares of Class B Common Stock, par value $.01 per
share (the "Class B Common Stock") and (iii) 1,600,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). As used in this
Restated Certificate of Incorporation, the term "Common Stock" shall include the
Class A Common Stock and the Class B Common Stock.
A. Common Stock. Except as otherwise provided herein, all shares of
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Class A Common Stock and Class B Common Stock will be identical and will
entitle the holders thereof to the same rights and privileges.
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1. Voting Rights. Except as otherwise required by law or as
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otherwise provided herein, on all matters submitted to the Corporation's
stockholders, (i) the holders of Class A Common Stock will be entitled to one
vote per share and (ii) the holders of Class B Common Stock will have no right
to vote.
2. Dividends. When and as dividends are declared thereon,
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whether payable in cash, property or securities of the Corporation, the holders
of Class A Common Stock and the holders of Class B Common Stock will be entitled
to share equally, share for share, in such dividends, provided that if dividends
are declared which are payable in shares of Class A Common Stock or Class B
Common Stock, dividends will be declared which are payable at the same rate on
each class of stock, and the dividends payable in shares of Class A Common Stock
will be payable to holders of Class A Common Stock, and the dividends payable in
shares of Class B Common Stock will be payable to holders of Class B Common
Stock.
3. Issuance of Class B Common Stock. From and after the date
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of the filing of this Restated Certificate of Incorporation with the Secretary
of State of the State of Delaware, the Corporation shall not issue or sell any
Class B Common Stock except in connection with an exchange of shares of Class A
Common Stock as provided in Section 4.2 of this Article Fourth-A.
4. Conversion and Exchange.
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4.1. Conversion of Class B Common Stock into Class A Common
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Stock.
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(a) Optional Conversion. Except as provided in the next
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sentence, each record holder of Class B Common Stock is entitled to convert any
or all of the shares of such holder's Class B Common Stock into the same number
of shares of Class A Common Stock, provided, that no holder of Class B Common
Stock is entitled to convert any share or shares of Class B Common Stock to the
extent that, as a result of such conversion, such holder and its Affiliates
would directly or indirectly own, control or have power to vote a greater
quantity of securities of any kind issued by the Corporation than such holder
and its Affiliates are permitted to own, control or have power to vote under any
law, regulation, order, rule or other requirement of any governmental authority
at any time applicable to such holder and its Affiliates. Other than in
connection with a registered public offering of the Class A Common Stock, no
Equitable Holder shall be entitled to convert shares of Class B Common Stock
into shares of Class A Common Stock except in connection with a sale or transfer
to a Person who is not an Affiliate of such Equitable Holder pursuant to an
automatic conversion described in paragraph (b) of this Section 4.1.
(b) Automatic Conversion. Upon the sale or transfer of any
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shares of Class B Common Stock by the holder thereof to any Person who is not an
Affiliate of such holder, such shares of Class B Common Stock shall
automatically convert without further action (an "Automatic Conversion") into an
equal number of shares of Class A Common Stock, provided that a distribution of
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shares of Class B Common Stock by an Eligible Holder to a Regulated Holder shall
not result in an Automatic Conversion.
4.2. Special Exchange of Class A Common Stock for Class B
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Common Stock. Each Eligible Holder is entitled to exchange a number of shares of
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such holder's Class A Common Stock for the same number of shares of Class B
Common Stock for the sole purpose of a distribution by such holder to one or
more of its limited partners which is a Regulated Holder provided that the
number of shares of Class A Common Stock so exchanged does not exceed the sum of
the number of Regulated Securities for each such Regulated Holder. The
subsequent transfer of any shares of Class B Common Stock by any such Regulated
Holder shall be subject to the provisions of Section 4.1(b) of this Article
Fourth-A and such Regulated Holder shall be permitted to convert shares of Class
B Common Stock into shares of Class A Common Stock to the extent set forth in
Section 4.1(a) of this Article Fourth-A.
4.3. Certain Conversion and Exchange Procedures.
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(a) Each conversion of shares of Class B Common Stock into
shares of Class A Common Stock (other than an Automatic Conversion contemplated
by Section 4.1(b) of this Article Fourth-A) and each exchange of shares of Class
A Common Stock for shares of Class B Common Stock will be effected by the
surrender of the certificate or certificates representing the shares to be
converted or exchanged, as the case may be, at the principal office of the
Corporation or the transfer agent designated by the Corporation, if any, at any
time during normal business hours, together with a written notice by the holder
of such shares stating either (x) the number of shares of Class B Common Stock
that such holder desires to convert into Class A Common Stock and that such
conversion shall not result in such holder and its Affiliates directly or
indirectly owning, controlling or having power to vote a greater quantity of
securities of any kind issued by the Corporation than such holder and its
Affiliates are permitted to own, control or vote under any law, regulation,
order, rule or other requirement of any governmental authority at any time
applicable to such holder and its Affiliates or (y) the number of shares of
Class A Common Stock that such holder desires to exchange for Class B Common
Stock and that such exchange is required in order for such holder to make a
distribution of shares of Common Stock to one of its limited partners which is a
Regulated Holder (and such statement will obligate the Corporation to issue such
Class B Common Stock). Such conversion or exchange will be deemed to have been
effected as of the close of business on the date on which such certificate or
certificates have been surrendered and such notice has been received, and at
such time the rights of any such holder with respect to the converted Class B
Common Stock or exchanged Class A Common Stock, as the case may be, will cease
and the person or persons in whose name or names the certificate or certificates
for shares of Class A Common Stock or Class B Common Stock, as the case may be,
are to be issued upon such conversion or exchange will be deemed to have become
the holder or holders of record of the shares of Class A Common Stock or Class B
Common Stock, as the case may be, represented thereby.
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(b) Promptly after such surrender and the receipt of the
written notice referred to in subparagraph (a) above, the Corporation will issue
and deliver in accordance with the surrendering holder's instructions the
certificate or certificates for Class A Common Stock or Class B Common Stock, as
the case may be, issuable upon such conversion or exchange and a certificate
representing any Class A Common Stock or Class B Common Stock, as the case may
be, which was represented by the certificate or certificates delivered to the
Corporation in connection with such conversion or exchange but which was not
converted or exchanged. The Corporation shall be entitled to rely upon any
written notice delivered pursuant to subparagraph (a) above and such notice
shall, in the absence of manifest error, be binding and conclusive upon the
Corporation.
(c) From and after an Automatic Conversion, (A) each
certificate formerly representing shares of Class B Common Stock which were held
by the holder thereof or any Affiliate thereof and which were converted pursuant
to such Automatic Conversion shall thereafter be deemed to represent (1) only
the like number of shares of Class A Common Stock into which such shares of
Class B Common Stock have been converted pursuant to such Automatic Conversion
(and no Person shall thereafter have any rights in respect of such shares of
Class B Common Stock), plus (2) if all the shares of Class B Common Stock
represented by such certificate were not converted pursuant to such Automatic
Conversion, such number of shares of Class B Common Stock which were not so
converted and (B) upon any surrender for transfer of any such certificate
accompanied by a written notice certifying that an Automatic Conversion has
occurred and specifying the number of shares so converted, the Corporation will
issue and deliver (1) a certificate or certificates representing the shares of
Class A Common Stock into which such shares of Class B Common Stock have been
converted pursuant to such Automatic Conversion and (2) if all the shares of
Class B Common Stock represented by such certificate or certificates were not
converted pursuant to such Automatic Conversion, a certificate or certificates
representing such number of shares of Class B Common Stock which were not so
converted. The Corporation shall be entitled to rely on any written notice
delivered to the effect that an Automatic Conversion has occurred and such
notice shall, in the absence of manifest error, be binding and conclusive upon
the Corporation.
5. Miscellaneous Provisions Applicable to Common Stock.
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5.1. Transfers. The Corporation will not close its books
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against the transfer of Class B Common Stock or Class A Common Stock in any
manner that would interfere with the timely conversion of Class B Common Stock
or exchange of Class A Common Stock.
5.2. Subdivisions and Combinations of Shares. If the
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Corporation in any manner subdivides or combines the outstanding shares of one
class of Common Stock, the outstanding shares of the other class of Common Stock
will be proportionately subdivided or combined.
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5.3. Issuance Costs. The issuance of certificates for Class A
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Common Stock upon conversion of Class B Common Stock or for Class B Common Stock
upon exchange for Class A Common Stock will be made without charge to the holder
or holders of such shares for any issuance tax (except stock transfer taxes) in
respect thereof or other cost incurred by the Corporation in connection with
such conversion or exchange and the related issuance of Class A Common Stock or
Class B Common Stock, as the case may be.
6. Definitions.
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6.1. "Affiliates" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by, or under common
control with such Person, provided, for purposes of this definition, that
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
Notwithstanding any other provision herein, the Board of Directors of the
Corporation shall in its good faith determine whether any party shall be deemed
an "Affiliate" of any Person for purposes of this Restated Certificate of
Incorporation and such determination shall be binding and conclusive upon the
Corporation.
6.2. "Equitable Holder" shall mean any of The Equitable
Life Assurance Society of the United States, Equitable Deal Flow Fund, L.P.,
Equitable Capital Partners (Retirement Fund), L.P., Equitable Capital
Partners, L.P., and Equitable Capital Private Income and Equity Partnership
II, L.P.
6.3. "Eligible Holder" shall mean any record holder of Class A
Common Stock, as of the date of this Restated Certificate of Incorporation,
which is a limited partnership having one or more limited partners which is a
Regulated Holder.
6.4. "Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
6.5. "Regulated Holder" shall mean any limited partner of an
Eligible Holder which is not permitted, under any applicable law, regulation,
order, rule or other requirement of any governmental authority to own, control
or have the power to vote more than a specified quantity of securities of any
kind issued by the Corporation.
6.6. "Regulated Securities" shall mean, with respect to any
Regulated Holder, the number of shares of Class A Common Stock in excess of the
amount such Regulated Holder is permitted, under any applicable law, regulation,
order, rule or other requirement of any governmental authority to own, control,
or have the power to vote.
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B. Preferred Stock.
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1. Issuance of Preferred Stock. The Preferred Stock may be
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issued at any time and from time to time in one or more series. The Board of
Directors is hereby authorized to provide for the issuance of shares of
Preferred Stock in series and, by filing a certificate of designation pursuant
to the applicable provisions of the General Corporation Law of the State of
Delaware (hereinafter referred to as a "Preferred Stock Certificate of
Designation"), to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of shares of each such series and the qualifications, limitations and
restrictions thereof.
2. Terms of Preferred Stock. The authority of the Board
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of Directors with respect to each series of Preferred Stock shall include, but
not be limited to, determination of the following:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
of Directors may thereafter (except where otherwise provided in the applicable
Preferred Stock Certificate of Designation) increase or decrease (but not below
the number of shares thereof then outstanding);
(c) whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(d) the dates on which dividends, if any, shall be payable;
(e) the redemption rights and price or prices, if any, for
the shares of the series;
(f) the terms and amount of any sinking fund provided for
the purchase or redemption of shares of the series;
(g) the amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation;
(h) whether the shares of the series shall be convertible or
exchangeable into shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates as of
which such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made;
(i) restrictions on the issuance of shares of the same
series or of any other class or series;
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(j) the voting rights, if any, of the holders of shares of
the series; and
(k) such other terms and provisions as the Board of
Directors may determine.
FIFTH: The following provisions are inserted for the
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management of the business and for the conduct of the affairs of the Corporation
and for the purpose of creating, defining, limiting and regulating the powers of
the Corporation and its directors and stockholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by law or by this Restated Certificate of Incorporation directed or required
to be exercised or done by the stockholders.
(b) The number of directors of the Corporation shall not be
less than one nor more than fourteen and, subject to such limits, shall be fixed
by resolution duly adopted from time to time by the Board of Directors. The
Board of Directors shall be divided into three classes, designated Classes I, II
and III, which shall be as nearly equal in number as possible. Directors of
Class I shall be elected at any time on and after the date of filing of this
Restated Certificate of Incorporation with the Secretary of State of the State
of Delaware to hold office for an initial term expiring at the annual meeting of
stockholders to be held in 2001. Directors of Class II shall be elected at any
time on and after the date of filing of this Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware to hold
office for an initial term expiring at the annual meeting of stockholders to be
held in 2002. Directors of Class III shall be elected at any time on and after
the date of filing of this Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware to hold office for an initial term
expiring at the annual meeting of stockholders to be held in 2003. At each
annual meeting of stockholders commencing with the annual meeting of
stockholders to be held in 2001, the respective successors of the directors
whose terms are expiring shall be elected for terms expiring at the annual
meeting of stockholders held in the third succeeding year. Vacancies in the
Board of Directors and newly-created directorships resulting from any increase
in the authorized number of directors may be filled as provided in the By-Laws.
The holders of a majority of the shares then entitled to vote at an election of
directors may remove any director or the entire Board of Directors, but only for
cause.
(c) Advance notice of nominations by stockholders for the
election of directors, and of stockholder proposals regarding action to be taken
at any meeting of stockholders, shall be given in the manner and to the extent
provided in the By-Laws of the Corporation.
(d) The Board of Directors of the Corporation shall have the
power without the assent or vote of the stockholders to adopt, amend, alter or
repeal the By-Laws of the Corporation, except to the extent that the By-Laws or
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this Restated Certificate of Incorporation otherwise provide or to the extent
that the provisions of the By-Laws would conflict with the provisions of this
Restated Certificate of Incorporation.
(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 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. If
the General Corporation Law of the State of Delaware is amended after the filing
of this Restated Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the General Corporation Law of the State of Delaware
as so amended. Any repeal or modification of this paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing in respect of any act or omission occurring
prior to the time of such repeal or modification.
(f) The Corporation shall indemnify, to the fullest extent now
or hereafter permitted by the General Corporation Law of the State of Delaware,
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was or has agreed to become a director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to be taken or omitted in
such capacity, and may to the same extent indemnify any person who was or is a
party or is threatened to be made a party to such an action, suit or proceeding
by reason of the fact that he or she is or was or has agreed to become an
employee or agent of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding or any appeal
therefrom.
SIXTH: The Corporation reserves the right to amend or repeal
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any provision contained in this Restated Certificate of Incorporation in the
manner now or hereafter prescribed by the laws of the State of Delaware, and all
rights herein conferred upon stockholders or directors are granted subject to
this reservation.
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed by its undersigned officers,
thereunto duly authorized, on the 22nd day of June, 2000.
LEXMARK INTERNATIONAL, INC.
By: /s/ Paul J. Curlander
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Paul J. Curlander
Chairman and Chief Executive Officer
ATTEST:
/s/ Vincent J. Cole
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Vincent J. Cole
Secretary
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