LEXMARK INTERNATIONAL INC /KY/ - 10-Q - 20041105 - SIGNATURES
SIGNATURE
Pursuant to the requirements 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, both on behalf of the registrant and in
his capacity as principal accounting officer of the registrant.
Lexmark International, Inc.
(Registrant)
Date: November 5, 2004 By: /s/ Gary D. Stromquist
--------------------------
Gary D. Stromquist
Vice President and Corporate Controller
(Chief Accounting Officer)
20
EXHIBIT INDEX
Exhibits:
10.1 Amended and Restated Receivables Purchase Agreement, dated as of October 8,
2004, by and among Lexmark Receivables Corporation, as Seller, CIESCO, LLC
and Gotham Funding Corporation, as the Investors, Citibank, N.A. and The
Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as the Banks, Citicorp
North America, Inc. and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as the Investor Agents, Citicorp North America, Inc., as Program
Agent for the Investors and Banks and the company, as Collection Agent and
Originator. (1)
10.2 Amendment No. 3 to Purchase and Contribution Agreement, dated as of October
8, 2004, by and between the company, as Seller, and Lexmark Receivables
Corporation, as Purchaser. (1)
10.3 Endorsement to the Employment Contract of Najib Bahous entered into as of
July 1, 2004, by and between Lexmark Europe SARL and Najib Bahous. +
31.1 Certification of Chairman and Chief Executive Officer Pursuant to Rule
13a-14(a) and 15d-14(a), As Adopted Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2 Certification of Executive Vice President and Chief Financial Officer
Pursuant to Rule 13a-14(a) and 15d-14(a), As Adopted Pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of Chairman and Chief Executive Officer Pursuant to 18 U.S.C.
Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002.
32.2 Certification of Executive Vice President and Chief Financial Officer
Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
(1) Incorporated by reference to the company's Current Report on Form 8-K filed
with the Commission on October 13, 2004 (Commission File No. 1-14050).
+ Indicates management contract or compensatory plan, contract or
arrangement.
21
Exhibit 10.3
ENDORSEMENT TO THE EMPLOYMENT CONTRACT OF
MR. NAJIB BAHOUS REGULATING HIS TRANSFER TO COUNTRY
Between the company Lexmark Europe SARL based at Tour Europlaza, 20 rue Ande
Prothin, 92400 Courbevoie, represented by Michel FLAUTO_acting in his capacity
as Director of Human Resources, hereinafter LEXMARK company;
on the one hand,
and
MR. NAJIB BAHOUS
on the other hand.
THE FOLLOWING IS AGREED:
ARTICLE 1: OBJECT OF THE PRESENT ENDORSEMENT TO THE EMPLOYMENT CONTRACT
By way of a contract of employment signed on April 1, 1991 between the parties,
Mr. Najib BAHOUS currently exercises the functions of Vice President, President
Consumer Printer Division within the Lexmark International, Inc. company.
Mr. Najib BAHOUS expressly accepts the proposed temporary expatriation made to
him to exercise the functions of Vice President, President Consumer Printer
Division for Lexmark International, Inc. in the United States.
The provisions of this present endorsement will be supplemented by an employment
contract signed with the company Lexmark International, Inc. during his stay in
the United States.
ARTICLE 2: EFFECTS OF THE ENDORSEMENT
The provisions of the initial employment contract dated March 26, 1991 and March
29, 1991 and signed on April 1 1991 with LEXMARK company are suspended for the
period of the expatriation in the United States.
The provisions of this present endorsement replace the provisions of the initial
contract of Mr. Najib BAHOUS, during the time period of his expatriation in the
United States without prejudice to the terms of the employment contract signed
with Lexmark International, Inc.
The seniority acquired during Mr. Najib Bahous' expatriation will be cumulated
with the seniority he already acquired until the date of expatriation.
ARTICLE 3: COMPETENT JURISDICTION AND LAW APPLICABLE TO THE EMPLOYMENT CONTRACT
The provisions of this present contract are subject to French law, under reserve
of the public order provisions in force in the United States which will apply as
priority, and this without it being possible to benefit simultaneously from the
advantages and guarantees offered by the two legislations.
Any dispute concerning the execution or cancellation of this present contract on
the initiative of one or other party, will be subject to the competent French
jurisdictions.
ARTICLE 4: DATE OF EFFECT
This endorsement will take effect on July 1st, 2004.
Mr. Najib BAHOUS has received all the amounts payable to him on June 30th, 2004,
including, but not limited to, the indemnity in lieu of the accrued but not
taken paid vacations, accrued through June 30th, but not taken by that date.
ARTICLE 5: PLACE OF WORK
The place of work of Mr. Najib BAHOUS in the United States shall be Lexington,
Kentucky.
Mr. Najib BAHOUS could be posted to any other location in his country of
expatriation for the needs of the activities of the LEXMARK group.
ARTICLE 6: DURATION OF EXPATRIATION ABROAD
The expatriation of Mr. Najib BAHOUS to the United States is foreseen for as
long as the President (Chief Executive Officer) of the LEXMARK group requires
the activities related to this mission to be carried out.
During the expatriation, the LEXMARK company reserves the right, upon the
request of, and with the agreement of Lexmark International, Inc., to proceed to
interrupt the mission of Mr. Najib BAHOUS in the United States at any time, and
for whatever reason at all, under reserve of respecting a minimum notice period
of three months.
In the case of Mr. Najib BAHOUS wishing to terminate his mission in the United
States before an agreed time period, he must, except in a case of 'force
majeure' (absolute necessity) resign simultaneously in writing from Lexmark
International, Inc. and the LEXMARK company. Is regarded notably as a case of
'force majeure' the serious illness of the salaried employee or of a member of
his family. In a case of resignation during his mission in the United States,
Mr. Najib BAHOUS will respect the conditions as laid out in his employment
contract with Lexmark International, Inc.
ARTICLE 7: FUNCTIONS AND QUALIFICATIONS
Mr. Najib BAHOUS will exercise during his mission in the United States the
functions of "Vice President, President Consumer Printer Division".
In such post he will account for the success of his mission to Dr. Paul J.
CURLANDER, Chief Executive Officer (CEO) of the company Lexmark International,
Inc., his successor, or to any person whom the CEO or the Board of Directors of
Lexmark International, Inc. might nominate.
ARTICLE 8: REMUNERATION AND OTHER ADVANTAGES
The remuneration and other advantages which Mr. Najib BAHOUS will enjoy during
his expatriation in the United States are detailed in his employment contract
and agreed with Lexmark International, Inc.
ARTICLE 9: SOCIAL SECURITY PROTECTION
Mr. Najib BAHOUS will be liable for social security contributions as defined in
his United States employment contract.
During his expatriation in the United States, the LEXMARK company will request
the adhesion of Mr. Najib BAHOUS to the 'Caisse des Francais a l'Etranger'
('Fund scheme for French people abroad') for sickness-maternity-disability
risks, and daily allowances for sickness, and old age.
The LEXMARK company will pay and take responsibility for those contributions due
to the 'Caisse des Francais a l'Etranger' for the duration of the expatriation,
on the basis of his reference salary fixed at 259,000 Euros. In additional
LEXMARK will make the required contributions to the ASSEDIC (unemployment).
Lexmark will not require reimbursement from Mr. Najib BAHOUS for these
contributions.
ARTICLE 10: END OF MISSION AND REINTEGRATION INTO FRANCE
At the end of his mission in the United States, except in the case of a
resignation by Mr. Najib BAHOUS, Mr. BAHOUS will be reintegrated into the
LEXMARK company in France, or wherever the company is established at that time,
in a post corresponding to his qualifications, and at a total gross compensation
(including gross salary and bonus) corresponding to his total gross annual
compensation calculated on the 12 months preceding his initial assignment in the
United States in 2001, 259,000 Euros.
If no employment corresponding to the skills and professional qualifications of
Mr. Najib BAHOUS is available within the LEXMARK company, he will be reinstated
into some other company of the group in France or abroad.
It is expressly agreed between the parties that at the end of the mission, the
employment contract agreed with the United States company will be terminated by
mutual agreement.
The initial employment contract with the LEXMARK company will return into force
in full right, with the return to France of Mr. Najib BAHOUS, with a total gross
compensation as per the first paragraph of this Article 10.
Drawn up in Paris France
In two original copies, as of July 1st, 2004.
Each text is equally authentic.
/s/ Najib Bahous /s/ Michel Flauto
---------------- -----------------
Najib Bahous
Vice President, Mr Michel FLAUTO
President Consumer Printer Division Director of Human Resources
Exhibit 31.1
CERTIFICATION PURSUANT TO RULE
13a-14(a) and 15d-14(a),
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Paul J. Curlander, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Lexmark
International, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in
the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting;
5. The registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: November 5, 2004 /s/ Paul J. Curlander
---------------------
Paul J. Curlander
Chairman and Chief Executive Officer
Exhibit 31.2
CERTIFICATION PURSUANT TO RULE
13a-14(a) and 15d-14(a),
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Gary E. Morin, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Lexmark
International, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in
the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting;
5. The registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: November 5, 2004 /s/ Gary E. Morin
-----------------
Gary E. Morin
Executive Vice President and
Chief Financial Officer
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Lexmark International, Inc. (the
"Company") on Form 10-Q for the period ending September 30, 2004 as filed with
the Securities and Exchange Commission on the date hereof (the "Report"), I,
Paul J. Curlander, Chairman and Chief Executive Officer of the Company, certify,
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
Dated: November 5, 2004
/s/ Paul J. Curlander
---------------------
Paul J. Curlander
Chairman and Chief Executive Officer
A signed original of this written statement required by Section 906, or other
document authenticating, acknowledging, or otherwise adopting the signature that
appears in typed form within the electronic version of this written statement
required by Section 906, has been provided to the Company and will be retained
by the Company and furnished to the Securities and Exchange Commission or its
staff upon request.
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Lexmark International, Inc. (the
"Company") on Form 10-Q for the period ending September 30, 2004 as filed with
the Securities and Exchange Commission on the date hereof (the "Report"), I,
Gary E. Morin, Executive Vice President and Chief Financial Officer of the
Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
Dated: November 5, 2004
/s/ Gary E. Morin
-----------------
Gary E. Morin
Executive Vice President and
Chief Financial Officer
A signed original of this written statement required by Section 906, or other
document authenticating, acknowledging, or otherwise adopting the signature that
appears in typed form within the electronic version of this written statement
required by Section 906, has been provided to the Company and will be retained
by the Company and furnished to the Securities and Exchange Commission or its
staff upon request.
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