EXHIBIT 10
STOCK DISPOSITION AGREEMENT, dated as of October 21, 1997, between
Lexmark International Group, Inc., a Delaware corporation (the "Company"), on
the one hand, and The ▇▇▇▇▇▇▇ & Dubilier Private Equity Fund IV Limited
Partnership, a Connecticut limited partnership ("C&D Fund IV"), on the other
hand.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, C&D Fund IV owns 15,993,993 shares (the "C&D Fund IV Shares")
of Class A Common Stock, par value $.01 per share, of the Company ("Lexmark
Common Stock");
WHEREAS, the Company has filed a registration statement with the
Securities and Exchange Commission, on October 10, 1997, relating to a secondary
underwritten public offering (the "Offering") of 12,000,000 shares of Lexmark
Common Stock (the "Registered Shares"); and
WHEREAS, the Company desires to purchase from C&D Fund IV, and C&D Fund
IV desires to sell to the Company, certain of the C&D Fund IV Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and on the terms and subject to the conditions
set forth herein, the parties hereto, each representing to the others that its
execution, delivery and performance of this Agreement has been fully and duly
authorized, agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
---------------------
Section 1.1 Specific Definitions.
-------------------- As used in this Agreement, the
following terms shall have the meanings set forth below:
"Business Day":
---------------
any day other than a Saturday, a Sunday or a
day on which banks in New York City are authorized or
obligated by law or executive order to close.
"Closing":
----------
the closing of the Offering and of the other
transactions contemplated by this Agreement to close
simultaneously therewith.
"Closing Date":
---------------
the date on which the Closing occurs.
"Governmental Entity":
----------------------
any supranational, national, federal,
state or local judicial, legislative, executive or regulatory
authority.
"Selling Stockholders":
-----------------------
the stockholders of the Company
participating in the Offering.
Section 1.2 Other Terms.
------------ Other terms are defined elsewhere in this
Agreement and, unless otherwise indicated, shall have such meaning throughout
this Agreement.
ARTICLE II
PURCHASE SHARES
---------------
Section 2.1 Purchase and Sale of Purchase Shares.
-------------------------------------- On the terms and
subject to the conditions set forth herein, at the Closing, C&D Fund IV agrees
to sell and transfer to the Company, and the Company agrees to purchase from C&D
Fund IV, 3,000,000 shares (the "Purchase Shares") of Lexmark Common Stock, at a
purchase price per share equal to the lesser of (x) $34.8125 (the closing price
of Lexmark Common Stock on October 20, 1997, the date the Company issued its
earnings press release), and (y) the per share proceeds to the Selling
Stockholders for the Registered Shares sold in the Offering (the "Purchase
Price"). The Purchase Shares shall not be purchased or sold pursuant to this
Agreement unless the Offering is consummated.
Section 2.2 Closing; Delivery and Payment.
------------------------------ (a) The Closing shall take
place at such time and place in New York City simultaneously with the closing of
the Offering as C&D Fund IV and the Company shall agree.
(b) On the Closing Date, C&D Fund IV shall deliver to the Company
certificates representing the Purchase Shares duly endorsed and in form for
transfer to the Company, and the Company shall pay to C&D Fund IV the Purchase
Price for the Purchase Shares in immediately available funds to an account
designated by C&D Fund IV not less than two Business Days prior to the Closing.
ARTICLES III
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 3.1 By the Parties.
-------------- C&D Fund IV represents and warrants as to
itself to the Company, and the Company represents and warrants as to itself to
C&D Fund IV, as follows:
(a) It has duly obtained all necessary authority for the
execution, delivery and performance of this Agreement by it; it has
duly executed and delivered this Agreement; and this Agreement is a
valid and legally binding agreement, enforceable against it in
accordance with its terms, assuming the due execution and delivery by
the other party.
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(b) The performance of this Agreement by it will not violate
or conflict with any law, regulation, order or agreement, or in the
case of the Company, its certificate of incorporation or by-laws, and
such party is not required to obtain any governmental approvals or
third party consents to enter into and perform its obligations pursuant
to this Agreement. Such execution and performance does not and will not
constitute a default under any agreement or obligation binding on it or
result in the forfeiture or loss of any rights or assets by it except
as specifically provided for in this Agreement.
Section 3.2 By C&D Fund IV.
-------------- C&D Fund IV represents and warrants to the
Company that it owns the Purchase Shares, beneficially and of record, free and
clear of any liens, charges or encumbrances and that upon delivery of such
Purchase Shares and payment therefore pursuant hereto good and valid title to
such Purchase Shares will pass to the Company (assuming that the Company is
without notice of any adverse claim, as defined in the Uniform Commercial Code
as adopted in the State of New York (the "Code") and is otherwise a bona fide
purchaser for the purposes of the Code and that the Company's rights are not
limited by subsection (4) of Section 8-302 of the Code).
ARTICLE IV
CONDITIONS TO CLOSING
---------------------
Section 4.1 Conditions to Closing.
----------------------- The obligations of the parties
hereto to consummate the transactions contemplated by this Agreement are subject
to the satisfaction (or waiver) of the following conditions:
(a) No Injunctions.
-------------- There shall not be in effect any statute,
regulation, order, decree or judgment of any Governmental Entity which
makes illegal or enjoins or prevents in any material respect the
consummation of the transactions contemplated by this Agreement.
(b) Representations.
--------------- As to any party to this Agreement, all
representations made to such party in Article III hereof shall be true
and correct in all material respects at and as of the Closing Date, and
such party shall have received a certificate of a senior officer of
each party making such representations to that effect.
(c) Closing of the Offering.
-------------------------- As to any party to this
Agreement, all agreements made by another party or parties for the
benefit of such party and to be performed at or before the Closing
shall have been duly performed in all material respects or waived, and
the Closing shall have occurred.
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ARTICLE V
TERMINATION
-----------
Section 5.1 Termination.
----------- This Agreement may be terminated at any time
prior to the Closing:
(a) by written agreement of C&D Fund IV and the Company;
(b) either by C&D Fund IV or by the Company, by written notice
of such termination to the other, if the Closing of the Offering shall
not have occurred on or prior to November 14, 1997;
(c) either by C&D Fund IV or by the Company if any court of
competent jurisdiction or other competent Governmental Entity shall
have by statute, rule, regulation, order, decree or injunction or other
action permanently restrained, enjoined or otherwise prohibited any of
the transactions contemplated by this Agreement.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 Notices.
------- All notices or other communications hereunder
shall be deemed to have been duly given and made if in writing and if served by
personal delivery upon the party for whom it is intended, if delivered
registered or certified mail, return receipt requested, or by a national courier
service, if sent by facsimile transmission, provided that the facsimile
transmission is promptly confirmed by telephone confirmation thereof, or on the
third day after posting in the United States postage prepaid if sent by
registered or certified mail, return receipt requested, to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
To the Company:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Vice President and General Counsel
Lexmark International Group, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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To C&D Fund IV:
The ▇▇▇▇▇▇▇ & Dubilier Private Equity Fund IV
Limited Partnership
c/o Clayton, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.2 Amendment; Waiver.
------------------ Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by C&D Fund IV and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and, except as otherwise provided herein, shall not be
exclusive of any rights or remedies provided by law.
Section 6.3 Assignment.
---------- No party to this Agreement may assign any of
its rights or obligations under this Agreement without the consent of each other
party hereto, except that C&D Fund IV may make such assignments with notice to
the Company but without the need for the Company's consent to one or more
holders of Lexmark Common Stock participating in the Offering provided that such
holder agrees in writing to become a party to and be bound by this Agreement and
to make such representations and warranties with respect to itself as are made
by C&D Fund IV in Article III hereof.
Section 6.4 Entire Agreement.
----------------- This Agreement contains the entire
agreement among the parties thereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, among
them with respect to such matters, and any written agreement of the parties that
expressly provides that it is not superseded by this Agreement.
Section 6.5 Parties in Interest.
-------------------- This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any person other than C&D Fund IV or the Company, and
their successors or permitted assigns, any rights or remedies under or by reason
of this Agreement.
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Section 6.6 Governing Law; Submission to Jurisdiction; Selection of
-----------------------------------------------------------
Forum.
----- THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Each party hereto agrees that it shall bring any action or proceeding in respect
of any claim arising out of or related to this Agreement or the transactions
contained in or contemplated by this Agreement, whether in tort or contract or
at law or in equity, exclusively in the United States District Court for the
Southern District Court for the Southern District of New York or the Supreme
Court of the state of New York for the county of New York, and solely in
connection with claims arising under this Agreement or the transactions
contained in or contemplated by this Agreement (i) irrevocably submits to the
exclusive jurisdiction of such courts, (ii) waives any objection to laying venue
in any such action or proceeding in such courts, (iii) waives any objection that
such courts are an inconvenient forum or do not have jurisdiction over any party
hereto and (iv) agrees that service of process upon such party in any such
action or proceeding shall be effective if notice is given in accordance with
section 5.1 of this Agreement.
Section 6.7 Counterparts.
------------ This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first written above.
LEXMARK INTERNATIONAL
GROUP, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Corporate Controller
THE ▇▇▇▇▇▇▇ & DUBILIER PRIVATE
EQUITY FUND IV LIMITED
PARTNERSHIP
By: ▇▇▇▇▇▇▇ & Dubilier
Associates IV Limited
Partnership,
Its General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Partner
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