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8-K - EXECUTIVE COMPENSATION - LEXMARK INTERNATIONAL INC /KY/ | form8-k.htm |
Exhibit
10.1
Lexmark
International, Inc.
Stock
Incentive Plan
Performance-Based Restricted
Stock Unit Award Notice
This
Award Notice evidences the award of performance-based restricted stock units
(each, a “Performance
RSU” or collectively, the “Performance
RSUs”) that have been granted to you, [NAME], by Lexmark International,
Inc., a Delaware corporation (the “Company”),
subject to and conditioned upon your agreement to the terms of the attached
Performance-Based Restricted Stock Unit Award Agreement (the “Agreement”). The
Performance RSUs are granted under the Lexmark International, Inc. Stock
Incentive Plan, as amended and restated, effective April 23, 2009 (the “Plan”),
and represent the Company’s unfunded and unsecured promise to issue shares of
the Company’s Common Stock at a future date, subject to the terms of this Award
Notice, the Agreement and the Plan.
The
number of Performance RSUs awarded to you, the performance measures to earn
Performance RSUs, and the vesting schedule for earned Performance RSUs are
specified below. This Award Notice constitutes part of, and is
subject to the terms and provisions of, the Agreement and the Plan, which are
incorporated by reference herein. Capitalized terms used but not
defined in this Award Notice shall have the meanings set forth in the Agreement
or in the Plan.
Grant Date:
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[DATE]
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Number of
Performance
RSUs at Target:
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[ # ],
subject to adjustment as provided under Section 5.4 of the
Plan.
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Minimum
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Target
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Maximum
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50%
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100%
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150%
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Performance Measure:
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[PERFORMANCE
MEASURE]
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Minimum
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Target
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Maximum
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Performance Period:
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[PERFORMANCE
PERIOD]
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Service
Condition to
Earn Performance RSUs:
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You
must be employed on the last day of the Performance Period to earn
Performance RSUs. If you have a termination of employment
during the Performance Period for any reason, you shall forfeit the
Performance RSUs.
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Determination of Earned
Performance RSUs:
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As
soon as practicable after the end of the Performance Period, the Committee
intends to review and approve the Company’s business results and certify
the level of achievement of the Performance Measure. Performance RSUs will
be earned if, and to the extent, the Performance Measure has been
achieved. The Committee may use its sole discretion to determine whether
the number of earned Performance RSUs shall be reduced, based on any
factors it may deem appropriate.
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Vesting
Schedule for
Earned Performance
RSUs:
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Subject
to the provisions of the Agreement and the Plan and provided that you
remain continuously employed by the Company or one of its Subsidiaries
through the respective vesting dates, set forth below, any earned
Performance RSUs shall become vested as follows:
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1
Vesting Dates
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% of Earned Performance
RSUs
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[Vesting
Date for Tranche 1]
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34%
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[Vesting
Date for Tranche 2]
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33%
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[Vesting
Date for Tranche 3]
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33%
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Settlement Date:
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For
each earned Performance RSU, settlement (i.e., one share of the Company’s
Common Stock will be issued for each vested earned Performance RSU) will
occur on (i) the date on which such Performance RSU becomes vested in
accordance with the Vesting Schedule, set forth above, or (ii) on such
other date as set forth in this Award Notice, the Agreement, or the
Plan.
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Acceleration Events:
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If
a Change in Control occurs during the Performance Period, a pro-rata
portion of the Performance RSUs will be deemed earned based on the greater
of Target or actual achievement of the Performance Measure as of the date
of the Change in Control, and the earned Performance RSUs shall become
100% vested as of such date.
After
the Performance Period has ended, any earned Performance RSUs shall become
100% vested upon the earliest to occur of: (i) your Retirement, (ii) your
termination of employment with the Company or one of its Subsidiaries as a
result of your death or Disability, or (iii) upon a Change in Control of
the Company prior to your termination of employment with the Company or
one of its Subsidiaries.
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Forfeiture of Award:
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By
accepting the award of Performance RSUs, you acknowledge that this award
has been granted to you as an incentive to remain employed by the Company
or one of its Subsidiaries, and that if you violate the provisions set
forth in Section 1(d) of the Agreement or the Executive Compensation
Recovery Policy, you (i) shall forfeit any unsettled earned or unearned
Performance RSUs and (ii) shall be required to immediately repay to the
Company, an amount equal to the value realized from the settlement of any
earned Performance RSUs during the period set forth in Section 1(d) of the
Agreement or the Recovery Period set forth in the Executive Compensation
Recovery Policy, as applicable.
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2
PERFORMANCE-BASED
RESTRICTED STOCK UNIT
AWARD
AGREEMENT
pursuant
to
LEXMARK
INTERNATIONAL, INC.
STOCK
INCENTIVE PLAN
This PERFORMANCE-BASED RESTRICTED STOCK
UNIT AWARD AGREEMENT (the "Agreement")
between Lexmark International, Inc., a Delaware corporation (the "Company"),
and the person specified on the signature page hereof (the “Grantee”)
is entered into as of the Grant Date specified on the attached Performance-Based
Restricted Stock Unit Award Notice (the “Award
Notice”) pursuant to the Lexmark International, Inc. Stock Incentive
Plan, as the same may be amended from time to time (the "Plan"). Capitalized
terms used and not defined herein shall have the meanings assigned to such terms
in the Plan or in the Award Notice, as applicable.
WHEREAS, the Committee has
determined that it would be to the advantage and in the interest of the Company
to grant performance-based restricted stock units to the Grantee as an
inducement to the Grantee to remain in the service of the Company and the
Subsidiaries and as an incentive to the Grantee to devote his or her best
efforts and dedication to the performance of such services and to maximize
shareholder value; and
WHEREAS, the Grantee desires
to accept from the Company the grant of the performance-based restricted stock
units, as set forth in the Award Notice, subject to the terms and conditions of
this Agreement, the Award Notice and the Plan.
NOW, THEREFORE, in
consideration of the premises and subject to the terms and conditions set forth
in this Agreement, the Award Notice and the Plan, the parties hereto hereby
covenant and agree as follows:
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1.
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Performance-Based
Restricted Stock Unit Award.
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(a)
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Performance-Based
Restricted Stock Unit Award. The Company hereby grants
to the Grantee, effective as of the Grant Date, the number of
performance-based restricted stock units, as set forth in the Award
Notice, each representing the Grantee's right to receive one share of
Common Stock, subject to the achievement of the Performance Measure(s), at
the time or times provided for in the Award Notice, and subject to the
terms and conditions set forth in this Agreement, the Award Notice and the
Plan (the "Performance
RSUs”).
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(b)
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Stock Incentive
Plan. This Agreement is subject in all respects to the
terms of the Plan, all of which terms are made a part of and incorporated
in this Agreement by reference. In the event of any conflict
between the terms of this Agreement and the terms of the Plan, the terms
of the Plan shall control. The Grantee hereby acknowledges
receipt of a copy of the Plan, either with this Performance RSU Award
Agreement or a prior Incentive Award made under the Plan, and agrees to
comply with and be bound by all of the terms and conditions
thereof. Copies of the Plan may also be obtained from the Vice
President of Human Resources, at any
time.
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(c)
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Establishment of
Account. No shares of Common Stock will be issued on the
Grant Date of the Performance RSUs and the Company shall not be required
to set aside a fund for the settlement of any such Performance
RSUs. The Company will establish a separate bookkeeping account
for the Grantee and will record in such account the number of Performance
RSUs awarded to the Grantee, and, to the extent applicable, the number
of
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1
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Performance
RSUs earned by the Grantee, if any, after the Performance Period has
ended, and the number of Dividend Equivalents provided for in Section 4(b)
hereof.
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(d)
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Forfeiture. In
accepting this grant of Performance RSUs, the Grantee acknowledges that
the Performance RSUs have been granted as an incentive to the Grantee to
remain employed by the Company or any Subsidiary and to exert his or her
best efforts to enhance the value of the Company or any Subsidiary over
the long-term. Accordingly, the Grantee agrees that if he or
she (i) within 12 months following termination of employment with the
Company or any Subsidiary, accepts employment with a competitor of the
Company or any Subsidiary or otherwise engages in competition with the
Company or any Subsidiary, (ii) within 36 months following termination of
employment with the Company or any Subsidiary, directly or indirectly,
disrupts, damages, interferes or otherwise acts against the interests of
the Company or any Subsidiary, including, but not limited to, recruiting,
soliciting or employing, or encouraging or assisting his or her new
employer or any other person or entity to recruit, solicit or employ, any
employee of the Company or any Subsidiary without the Company’s prior
written consent, which may be withheld in its sole discretion, (iii)
within 36 months following termination of employment with the Company, or
any Subsidiary, disparages, criticizes, or otherwise makes any derogatory
statements regarding the Company or any Subsidiary or their directors,
officers or employees, or (iv) discloses or otherwise misuses confidential
information or material of the Company or any Subsidiary, each of these
constituting a harmful action, then any unsettled earned or unearned
Performance RSUs shall be canceled immediately (unless canceled earlier by
operation of another term of this Agreement) and the Grantee shall
immediately repay to the Company an amount equal to the value of the
earned and settled Performance RSUs (represented by the closing market
price on the applicable Vesting Dates (as set forth in the Award Notice)
multiplied by the number of earned Performance RSUs vested on such Vesting
Dates, without regard to any subsequent market price decrease or increase)
realized by the Grantee from the vesting of any earned Performance RSUs
within 18 months preceding the earlier of (w) the commitment of any such
harmful action and (x) the Grantee's termination of employment with the
Company and its Subsidiaries; and through the later of (y) 18 months
following the commitment of any such harmful action and (z) such period as
it takes the Company to discover such harmful action. In
addition, the Grantee acknowledges that, if he or she is a “Covered
Employee” subject to the Company’s Executive Compensation Recovery Policy
(the “Recovery
Policy”) and engages in “Prohibited Activity,” that the unsettled
earned or unearned Performance RSUs shall be canceled immediately and the
Grantee shall immediately repay the “Equity Gains” realized by the Grantee
during the “Recovery Period,” as such terms are defined in the Recovery
Policy. The Grantee agrees that the Company or any of its
Subsidiaries has the right to deduct from any amounts the Company or any
of its Subsidiaries may owe the Grantee from time to time (including
amounts owed to the Grantee as wages or other compensation, fringe
benefits or vacation pay, as well as any other amounts owed to the Grantee
by the Company or any of its Subsidiaries), the amounts the Grantee owes
the Company or any of its Subsidiaries. The Committee shall
have the right, in its sole discretion, not to enforce the provisions of
this paragraph with respect to the
Grantee.
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Grantee
agrees to be fully liable for any breach of this above described covenant,
promise and agreement. Grantee agrees to reimburse the Company for
all costs and expenses, including attorneys’ fees, incurred by the Company in
enforcing the obligations of Grantee. This entire provision shall
survive the termination of the Agreement and, in no manner, shall the remedies
described herein be considered as the Company’s exclusive or entire remedy for
Grantee’s breach, non-compliance or violation of any other agreement that
Grantee may have entered into with the Company.
2
2. Earning Performance
RSUs. As soon as practicable after the end of the Performance Period, as
set forth in the Award Notice, the Committee shall review and approve the
Company’s business results and certify the level of achievement of the
Performance Measure(s), as set forth in the Award Notice. Provided
you are employed on the last day of the Performance Period, and to the extent
that the Performance Measure(s) have been achieved, a number of Performance RSUs
will be deemed earned based on the level of attainment of each Performance
Measure. Settlement of the earned Performance RSUs is subject to your
continued employment through the Vesting Dates, as set forth in Section
3(a). The Committee may use its sole discretion to determine whether
the number of earned Performance RSUs shall be reduced, based on any factors it
may deem appropriate. If a Change in Control occurs during the
Performance Period, a pro-rata portion of the Performance RSUs will be deemed
earned based on the greater of Target, as set forth in the Award Notice, or the
actual achievement of the Performance Measure(s) as of the effective date of the
Change in Control.
3. Vesting of Earned
Performance RSUs.
(a)
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Vesting. The
earned Performance RSUs shall become vested in such amounts and on such
Vesting Dates as set forth in the Award Notice, subject to the Grantee’s
continuous employment with the Company or a Subsidiary from the Grant Date
to the applicable Vesting Date. To the extent vesting would
result in the settlement of a fractional number of earned Performance
RSUs, the number shall be rounded to a whole number, but shall not exceed
the total number of earned Performance RSUs, as determined by the
Committee.
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(b)
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Acceleration. The
Committee may, in its discretion, accelerate the vesting of all or any
portion of the Performance RSUs or waive any conditions to the vesting of
such Performance RSUs.
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(c)
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Termination of
Employment during the Performance Period. In the event
of the Grantee's termination of employment with the Company and its
Subsidiaries for any reason during the Performance Period, the Grantee
shall immediately forfeit all rights with respect to the Performance
RSUs.
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(d)
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Termination of
Employment after the end of the Performance Period. In
the event of the Grantee’s termination of employment with the Company and
its Subsidiaries for any reason, other than death, Disability, or
Retirement, after the end of the Performance Period, the Grantee shall
immediately forfeit all rights with respect to any earned Performance RSUs
(and Dividend Equivalents) which have not yet vested in accordance with
the terms of the Award Notice, this Agreement or the
Plan. After the Performance Period has ended, any earned
Performance RSUs shall become 100% vested upon the earliest to occur of:
(i) the Grantee’s Retirement or (ii) the Grantee’s termination of
employment with the Company and its Subsidiaries as a result of the
Grantee’s death or Disability.
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(e)
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Change in
Control. In the event of a Change in Control prior to the Grantee’s
termination of employment, any earned Performance RSUs (including any
Performance RSUs deemed earned on the effective date of the Change in
Control pursuant to Section 2) shall become 100% vested as of the
effective date of the Change in
Control.
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4.
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Settlement of
Restricted Stock Unit Award.
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(a)
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Settlement. On,
or as soon as reasonably practicable after, a Vesting Date, subject to
Section 5 hereof, the Company shall direct its stock transfer agent to
make (or to cause to be made) an appropriate book entry in the Company's
stock transfer books and records reflecting the transfer to the Grantee,
and the Grantee's ownership, of one share of Common Stock for each earned
Performance RSU that shall have become vested on
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3
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such
Vesting Date. Upon the Grantee's request, subject to Section 5
hereof, the Company shall deliver to the Grantee a stock certificate
registered in the Grantee's name and representing such number of shares of
Common Stock free and clear of all restrictions except any that may be
imposed by law. No payment will be required to be made by
the Grantee upon the delivery of such shares of Common Stock, except as
otherwise provided in Section 5 of the
Agreement.
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(b)
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Dividend
Equivalents. Unless otherwise determined by the
Committee, during the period following the Performance Period and prior to
a Vesting Date, the Company will credit to the bookkeeping account of the
Grantee an amount equal to any dividends paid by the Company with respect
to the number of shares of Common Stock corresponding to the number of
Performance RSUs ("Dividend
Equivalents"). Dividend Equivalents in respect of earned
Performance RSUs that shall have become vested on the applicable Vesting
Date shall be payable to the Grantee on such Vesting Date in accordance
with Section 4(a).
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(c)
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Restrictions on Sale
upon Public Offering. The Grantee hereby agrees that,
notwithstanding the vesting of the earned Performance RSUs pursuant to
Section 3(a) of this Agreement or the transfer of the shares of Common
Stock covered thereby to the Grantee pursuant to Section 4(a) hereof, the
Grantee will not effect any public sale or distribution of any of such
shares of Common Stock during the 20-day period prior to and the 180 days
following the effective date of any registration statement hereinafter
filed by the Company under the Securities Act of 1933, as amended, with
respect to any underwritten public offering of any shares of the Company's
capital stock (other than as part of such underwritten public
offering).
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5.
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Tax
Withholding. The delivery of any directions to the
Company's stock transfer agent or any certificates for shares of Common
Stock pursuant to Section 4 shall not be made unless and until the
Grantee, or, if applicable, the Grantee's beneficiary or estate, has made
appropriate arrangements for the payment to the Company of an amount
sufficient to satisfy any applicable U.S. federal, state and local and
non-U.S. tax withholding or other tax requirements, as determined by the
Company. To satisfy the Grantee's applicable withholding and
other tax requirements, the Company may, in its sole discretion, (i)
withhold a number of shares of Common Stock having an aggregate Fair
Market Value on the Vesting Date equal to the applicable amount of such
withholding and other tax requirements or (ii) require the Grantee to sell
a number of shares of Common Stock having at least a value sufficient to
meet the applicable amount of such withholding and other tax requirements
to account for rounding and market fluctuations, subject to any rules
adopted by the Committee or required to ensure compliance with applicable
law, including, but not limited to, Section 16 of the Securities Exchange
Act of 1934, as amended. Shares required to be sold to satisfy
the Grantee’s applicable withholding and other tax requirements may be
sold as part of a block trade with the Grantee receiving an average
price. Any cash payment made pursuant to Section 4 shall be
made net of any amounts required to be withheld or paid with respect
thereto (and with respect to any shares of Common Stock delivered
contemporaneously therewith) under any applicable U.S. federal, state and
local and non-U.S. tax withholding and other tax
requirements.
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6.
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Transferability. Unless
otherwise provided in accordance with the provisions of the Plan, the
Performance RSUs may not be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated by the Grantee, other than by will or
the laws of descent and distribution. The term "Grantee" as
used in this Agreement shall include any permitted transferee of the
Performance RSUs.
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4
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7.
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Adjustment in
Capitalization.
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(a)
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The
aggregate number of shares of Common Stock covered by the Performance RSUs
granted hereunder shall be proportionately adjusted to reflect, as deemed
equitable and appropriate by the Committee, an Adjustment
Event.
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(b)
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Any
shares of stock (whether Common Stock, shares of stock into which shares
of Common Stock are converted or for which shares of Common Stock are
exchanged or shares of stock distributed with respect to Common Stock) or
cash or other property received or credited to the account of the Grantee
with respect to the Performance RSUs as a result of any Adjustment Event,
any distribution of property or any merger, consolidation, reorganization,
liquidation, dissolution or other similar transaction shall, except as
otherwise provided by the Committee, be subject to the same terms and
conditions, including restrictions on transfer, as are applicable to the
Performance RSUs with respect to which such shares, cash or other property
is received or so credited and stock certificate(s), if any, representing
or evidencing any shares of stock or other property so received shall be
legended as appropriate.
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8.
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Preemption by
Applicable Laws and Regulations. Notwithstanding
anything in the Plan or this Agreement to the contrary, the issuance of
shares of Common Stock hereunder shall be subject to compliance with all
applicable U.S. federal, state and non-U.S. securities
laws. Without limiting the foregoing, if any law, regulation or
requirement of any governmental authority having jurisdiction shall
require either the Company or the Grantee (or the Grantee's beneficiary or
estate) to take any action in connection with the issuance of any shares
of Common Stock hereunder, the issuance of such shares shall be deferred
until such action shall have been taken to the satisfaction of the
Company.
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9.
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Interpretation;
Construction. All of the powers and authority conferred
upon the Committee pursuant to any term of the Plan or the Agreement shall
be exercised by the Committee, in its sole discretion. All
determinations, interpretations or other actions made or taken by the
Committee pursuant to the provisions of the Plan or the Agreement shall be
final, binding and conclusive for all purposes and upon all persons and,
in the event of any judicial review thereof, shall be overturned only if
arbitrary and capricious. The Committee may consult with legal
counsel, who may be counsel to the Company or any Subsidiary, and shall
not incur any liability for any action taken in good faith in reliance
upon the advice of counsel.
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10.
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Amendment. The
Committee shall have the right, in its sole discretion, to alter or amend
this Agreement, from time to time, as provided in the Plan in any manner
for the purpose of promoting the objectives of the Plan, provided that no
such amendment shall impair the Grantee's rights under this Agreement
without the Grantee's consent. Subject to the preceding
sentence, any alteration or amendment of this Agreement by the Committee
shall, upon adoption thereof by the Committee, become and be binding and
conclusive on all persons affected thereby without requirement for consent
or other action with respect thereto by any such
person. Notwithstanding any other provision of this Agreement
or the Plan to the contrary, the Committee may, in its sole and absolute
discretion and without the consent of the Grantee, amend this Agreement,
to take effect retroactively or otherwise, as it may deem necessary or
advisable for the purpose of conforming the Agreement to any present or
future law, regulation or rule applicable to this Agreement or the
Plan. The Company shall give written notice to the Grantee of
any such alteration or amendment of this Agreement as promptly as
practicable after the adoption thereof. This Agreement may also
be amended by a writing signed by both the Company and the
Grantee.
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11.
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No Rights as a
Stockholder. The Grantee shall have no rights as a
stockholder with respect to the Performance RSUs prior to the date as of
which the shares of Common Stock covered thereby are transferred to the
Grantee in accordance with Section 4(a)
hereof.
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5
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12.
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No Guarantee of
Employment or Future Incentive Awards. Nothing in the Plan or this
Agreement shall be deemed to:
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(a)
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interfere
with or limit in any way the right of the Company or any Subsidiary to
terminate Grantee’s employment at any time and for any reason, with or
without cause;
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(b)
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confer
upon Grantee any right to continue in the employ of the Company or any
Subsidiary; and
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(c)
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provide
Grantee the right to receive any Incentive Awards under the Plan in the
future or any other benefits the Company may provide to some or all of its
employees.
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13.
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Miscellaneous.
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(a)
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Notices. All
notices and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given
if delivered personally or sent by certified or express mail, return
receipt requested, postage prepaid, or by any recognized international
equivalent of such delivery, to the Company or the Grantee, as the case
may be, at the following addresses or to such other address as the Company
or the Grantee, as the case may be, shall specify by notice to the others
delivered in accordance with this Section
13(a):
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(i)
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if
to the Company, to it at:
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One
Lexmark Centre Drive
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740
West New Circle Road
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Lexington,
KY 40550
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Attention: Secretary
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(ii)
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if
to the Grantee, to the Grantee at the address set forth on the signature
page hereof.
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All such
notices and communications shall be deemed to have been received on the date of
delivery or on the third business day after the mailing thereof.
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(b)
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Binding Effect;
Benefits. This Agreement shall be binding upon and inure
to the benefit of the parties to this Agreement and their respective
successors and assigns. Nothing in this Agreement, express or
implied, is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or assigns
any legal or equitable right, remedy or claim under or in respect of any
agreement or any provision contained
herein.
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(c)
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Waiver. Any
party hereto may by written notice to the other party (i) extend the
time for the performance of any of the obligations or other actions of the
other party under this Agreement, (ii) waive
compliance with any of the conditions or covenants of the other party
contained in this Agreement and (iii) waive or
modify performance of any of the obligations of the other party under this
Agreement. Except as provided in the preceding sentence, no
action taken pursuant to this Agreement, including, without limitation,
any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained
herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by a party to
exercise any right or privilege hereunder shall be deemed a waiver of such
party's rights or privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or times
hereunder.
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6
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(d)
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Assignability. Neither
this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by the Company or the
Grantee without the prior written consent of the other
party.
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(e)
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Applicable
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the
law that might be applied under principles of conflict of laws and
excluding any conflict or choice of law rule or principle that may
otherwise refer construction or interpretation of the Plan or this
Agreement to the substantive law of another
jurisdiction.
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(f)
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Jurisdiction. The
Grantee hereby irrevocably and unconditionally submits to the jurisdiction
and venue of the state courts of the Commonwealth of Kentucky and of the
United States District Court of the Eastern District of Kentucky located
in Fayette County, Kentucky, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement, or
for recognition or enforcement of any judgment, and each of the parties
hereby irrevocably agree that all claims in respect of any such action or
proceeding may be heard and determined in such Kentucky state or United
States federal courts located in such jurisdiction. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by
law. The parties hereby irrevocably waive, to the fullest
extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. Grantee
further agrees that any action related to, or arising out of, this
Agreement shall only be brought by Grantee exclusively in the federal and
state courts located in Fayette County, Kentucky. Nothing in
this Agreement shall affect any right that the Company may otherwise have
to bring any action or proceeding relating to this Agreement in the courts
of any jurisdiction.
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(g)
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Severability. If
any provision of this Agreement or the Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provisions of this Agreement or the Plan, and the Agreement and the
Plan shall be construed and enforced as if such provision had not been
included.
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(h)
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Survival. Any
provision of this Agreement which contemplates performance or observance
subsequent to any termination or expiration of this Agreement shall
survive any termination or expiration of this Agreement and continue in
full force and effect.
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(i)
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Internal Revenue Code
Section 409A. It is intended that the settlement of the
Performance RSUs shall constitute a “short-term deferral” for purposes of
Section 409A of the Code and the Treasury Department regulations and other
interpretive guidance issued thereunder, or as otherwise exempt from the
provisions of Section 409A of the Code. To the extent any portion of the
settlement of the Performance RSUs cannot be so characterized, this
Agreement shall be interpreted and construed in compliance with Section
409A of the Code and Treasury Department regulations and other
interpretive guidance issued thereunder, including the restriction that
payments made to a “specified employee” (within the meaning of Section
409A of the Code) on account of a termination of employment shall be
delayed for six months and one day from the date of
termination.
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(j)
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Section and Other
Headings, Etc. The section and other headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this
Agreement.
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7
(k)
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Counterparts. This
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall
constitute one and the same
instrument.
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* * * * *
8
IN WITNESS WHEREOF, the
Company and the Grantee have executed this Agreement, effective as of the Grant
Date.
LEXMARK INTERNATIONAL,
INC.
By: ________________________________
Jeri L. Isbell
Vice President of Human
Resources
GRANTEE:
By: ________________________________
(Sign Here)
Address
of the Grantee:
___________________________________
___________________________________
Designation of
Beneficiary
In the
event of my death, I hereby designate the following person(s), as my
beneficiary, to receive any unsettled earned Performance RSUs that become vested
upon my death pursuant to this Agreement. I acknowledge that if I
fail to designate a beneficiary, below, that any unsettled earned Performance
RSUs that become vested upon my death shall be paid to my estate.
___________________________________
Beneficiary Name
9