As filed with the Securities and Exchange Commission on January 5, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEXMARK INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 06-1308215
(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, INC.
BROAD-BASED EMPLOYEE STOCK INCENTIVE 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)
859-232-2700
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C> <C>
Title of Proposed Maximum Proposed Maximum
Securities To Amount To Be Offering Price Aggregate Offering Amount of
Be Rigistered Registered Per Share Price Registration Fee
Class A Common
Stock, par value 1,600,000
$.01 per share Shares (1) $42.78 (2) $68,448,000 $17,112
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(1) Consists of shares of Lexmark International, 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.
(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 January 2, 2001, as reported on the
New York Stock Exchange.
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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 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 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.
The legality of the shares of Common Stock being registered pursuant
to this Registration Statement has been passed upon for the Company by Vincent
J. Cole, Vice President, General Counsel and Secretary of the Company. As of the
date of this Registration Statement, Mr. Cole beneficially owns shares of the
Common Stock and options to purchase shares of the Common Stock.
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,
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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 Restated Certificate of Incorporation
contains the following provision regarding limitation of liability of
directors and officers:
(e) No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director, provided, that nothing contained in
this 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 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.
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
4.1* Lexmark International, Inc. Broad-Based Employee Stock Incentive
Plan.
5* Opinion of Vincent J.Cole, Vice President, General Counsel and
Secretary of the Company.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel (included in Exhibit 5).
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 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,
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.
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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, Commonwealth of Kentucky, on this 5th day
of January, 2001.
LEXMARK INTERNATIONAL, INC.
By: /s/Paul J. Curlander
--------------------
Title: Chairman 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 and Chief Executive Officer
-------------------- (Principal Executive Officer)
Paul J. Curlander
/s/Gary E. Morin Executive Vice President and Chief Financial
---------------- Officer
Gary E. Morin (Principal Financial Officer)
/s/David L. Goodnight Vice President and Corporate Controller
--------------------- (Principal Accounting Officer)
David L. Goodnight
*
----------------------- Director
B. Charles Ames
*
----------------------- Director
Teresa Beck
*
----------------------- 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
*
----------------------- 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
------------------
Vincent J. Cole
(Attorney-in-Fact)
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EXHIBIT INDEX
4.1* Lexmark International, Inc. Broad-Based Employee Stock Incentive
Plan.
5* Opinion of Vincent J. Cole, Vice President, General Counsel and
Secretary of the Company.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel (included in Exhibit 5).
24* Powers of Attorney.
* Filed herewith.
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