NON-QUALIFIED STOCK OPTION AGREEMENT pursuant to LEXMARK INTERNATIONAL, INC. STOCK INCENTIVE PLAN
pursuant
to
LEXMARK
INTERNATIONAL, INC.
STOCK
INCENTIVE PLAN
This
NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") between Lexmark
International, Inc., a Delaware corporation (the "Company"), and the person
specified on the signature page hereof (the "Optionee") is entered into as
of
[Grant Date] pursuant to the Lexmark International, Inc. Stock Incentive
Plan,
as the same may be amended from time to time (the "Plan").
WHEREAS,
the Optionee is regarded as a key employee of the Company or one of the
Subsidiaries and the Committee has determined that it would be to the advantage
and in the interest of the Company to grant the option provided for herein
to
the Optionee as an inducement to the Optionee to remain in the service of
the
Company and the Subsidiaries over the long-term and as an incentive to the
Optionee to devote his or her best efforts and dedication to the performance
of
such services and to maximize shareholder value; and
WHEREAS,
the Optionee desires to accept from the Company the grant of the options
evidenced hereby on the terms and subject to the conditions herein;
NOW,
THEREFORE, in consideration of the premises and subject to the terms and
conditions set forth herein and in the Plan, the parties hereto hereby covenant
and agree as follows:
1. Grant
of Option; Exercise Price.
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(a)
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Grant
of Option; Exercise Price.
The Company hereby grants to the Optionee, effective as of [Grant
Date]
(the "Grant Date") and on the terms and conditions herein, an option
(the
"Option") to purchase the number of shares (the "Option Shares"),
of Class
A Common Stock, par value $.01 per share (the “Common Stock”) set forth on
the signature page hereof, at an exercise price per Option Share
equal to
the fair market value on the Grant Date of [▇▇▇▇▇ ▇▇▇▇▇], which
was the
closing price of a share of Common Stock on the Grant Date as reported
for
such day in The Wall Street Journal. The Option is not intended
to be an
incentive stock option under the United States Internal Revenue
Code of
1986, as amended.
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| (b) |
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 Optionee hereby acknowledges that a copy of the Plan may be obtained
from the Vice President of Human Resources and agrees to comply with
and
be bound by all of the terms and conditions thereof. Terms used in
this
Agreement with initial capital letters, but not defined herein, shall
have
the meanings assigned to them under the
Plan.
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1
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2.
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Vesting;
Period of Exercise of
Option
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(a)
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Vesting.
Subject to the provisions of Section 4, the Option shall become
vested and
exercisable in [number of installments] approximately equal installments
on each of the first [number of installments] anniversaries of
the Grant
Date, subject in the case of each such installment to the continuous
employment of the Optionee with the Company or a Subsidiary from
the date
hereof to the applicable anniversary of the Grant Date. Provided,
however,
if at the time of Optionee's retirement (i) Optionee has 30 years
of
continuous service, (ii) Optionee is 58 years of age or older and
has ten
years of continuous service, or (iii) Optionee is 65 years of age
or
older, and in each case Optionee agrees to the cancellation of
any option
grant made to him or her within 12 months prior to the date of
his or her
retirement, then vesting shall continue to occur on this Option
for a
period of 24 months following the date of his or her retirement
(the
"Preferential Vesting Period").
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(b)
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Termination
of Employment.
If the Optionee's employment with the Company and its Subsidiaries
terminates for any reason, other than a termination by the Company
or a
Subsidiary for Cause (as defined below), any portion of the Option
which
is not then exercisable or subject to continued vesting during
a
Preferential Vesting Period shall immediately terminate and be
canceled
effective upon such termination of employment and the remaining
portion of
the Option, if any, shall thereafter remain exercisable for the
period
provided in Section 4. In the event of the termination of the Optionee's
employment by the Company or a Subsidiary for Cause, the Option
shall
immediately terminate and be canceled in full effective upon the
date of
such termination of employment.
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In accepting this Option, the Optionee acknowledges that the Option has
been granted as an incentive to the Optionee 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 Optionee
agrees that if he or she (a) within 12 months following termination of
employment with the Company or any Subsidiary or the end of a Preferential
Vesting Period, accepts employment with a competitor of the Company or any
Subsidiary or otherwise engages in competition with the Company or any
Subsidiary, or (b) within 36 months following termination of employment with
the
Company or any Subsidiary or the end of a Preferential Vesting Period, 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, (c) within 36 months
following termination of employment with the Company, or any Subsidiary,
disparages, criticizes, or otherwise makes derogatory statements regarding
the
Company or any Subsidiary or their directors, officers or employees, or (d)
discloses or otherwise misuses confidential information or material of the
Company or any Subsidiary, each of these constituting a harmful action, then
(i)
any unexercised portion of this Option shall be canceled immediately (unless
canceled earlier by operation of another term of this Agreement) and (ii)
the
Optionee shall immediately repay to the Company an
2
amount
equal
to
the
Option gains (represented by the closing market price on the date of exercise
over the exercise price, multiplied by the number of options
exercised,
without
regard
to
any subsequent market price decrease or increase) realized by the Optionee
from
the exercise of all or a portion of this Option within
18
months
preceding
the
earlier of (w) the commitment of any such harmful action and (x) the Optionee'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.
The Optionee
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
Optionee
from time to time (including amounts owed to the Optionee as wages or other
compensation, fringe benefits or vacation pay,
as
well
as any other
amounts owed
to
the Optionee by the Company or any of its Subsidiaries), the amounts the
Optionee 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 Optionee.
Optionee
agrees to be fully liable for any breach of this above described covenant,
promise and agreement. Optionee agrees to reimburse the Company for all costs
and expenses, including attorneys’ fees, incurred by the Company in enforcing
the obligations of Optionee. 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 Optionee’s breach,
non-compliance or violation of any other agreement that Optionee may have
entered into with the Company.
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(c)
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Acceleration.
The Committee may, in its discretion, accelerate the date or dates
as of
which all or any portion of the Option shall become vested and
exercisable
and may establish accelerated times for vesting based upon the
attainment
of performance goals or such other factors as the Committee may
from time
to time determine.
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(d)
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Term
of Option Exercise Period.
Except to the extent that the Option or any portion thereof shall
sooner
terminate in accordance with Section 2 or 4 hereof, once any portion
of
the Option has become vested and exercisable, such portion shall
remain
exercisable until the end of the day preceding the tenth anniversary
of
the date hereof (the "Option
Period").
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3.
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Method
of Exercise and Payment; Certain Restrictions on
Resale.
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(a)
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Exercise
and Payment.
Once vested and exercisable, the Option, or any vested portion
thereof,
may be exercised by the Optionee (or his or her beneficiary or
estate) by
delivery to the Company on any business day (the "Option Exercise
Date")
written notice (the "Option Exercise Notice"), in such manner and
form as
may be required by the Committee, specifying the number of Option
Shares
the Optionee then desires to purchase and the aggregate exercise
price for
such Option Shares (the "Option Exercise Price"). The Option Exercise
Notice shall be accompanied by payment of the Option Exercise Price
and
any other amounts required to be paid pursuant to Section
5.
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3
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The
Optionee may pay the Option Exercise Price by delivering to the
Company
cash, shares of Qualifying Common Stock (as defined below) already
owned
by the Optionee or a combination of cash and such shares of Qualifying
Common Stock provided that the aggregate Fair Market Value on the
Option
Exercise Date of the shares of Qualifying Common Stock delivered
in
payment of any portion of the Option Exercise Price shall be equal
to the
excess of (x)
the Option Exercise Price over (y)
the amount of any cash delivered by the Optionee in payment of
the Option
Exercise Price. For purposes of this Agreement, shares of Common
Stock
shall constitute Qualifying Common Stock that may be delivered
in payment
of the Option Exercise Price if such shares (i)
are not subject to any outstanding loan or other obligation and
are not
pledged as collateral with respect to any loan or other obligation,
other
than any such loan or other obligation extended to the Optionee
by the
Company or any Subsidiary provided the Committee approves the delivery
of
such shares to pay the Option Exercise Price, and (ii)
either (x)
have been owned by the Optionee without certain restrictions for
a
continuous period of at least six months (or such greater or lesser
period
as the Committee shall determine) or (y)
were purchased by the Optionee on a U.S. national securities
exchange.
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The
Committee may also permit the Optionee to arrange for the payment
of all
or any portion of the Option Exercise Price and other amounts required
to
be paid pursuant to Section 5 by directing a securities broker
approved
for such purpose by the Committee to deliver to the Company, on
behalf of
the Optionee, the proceeds of the sale on the Option Exercise Date
of a
number of the Option Shares then being purchased by the Optionee
having
aggregate sales proceeds on the Exercise Date equal to the sum
of all or
the applicable portion of the Option Exercise Price and the amounts
required to be paid pursuant to Section 5 that the Optionee elects
to
satisfy by using the proceeds of the sale of the Option Shares
(the
"Cashless Exercise Procedure").
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Within
a reasonable period of time after the Option Exercise Date, subject
to
payment of the Option Exercise Price and any amounts required to
be paid
by the Optionee pursuant to Section 5, the Company shall direct
its stock
transfer agent to make (or to cause to be made) an appropriate
book entry
reflecting the Optionee's ownership of the Option Shares then being
purchased by the Optionee. Upon request, the Company shall deliver
to the
Optionee a certificate or certificates for the number of Option
Shares
(reduced, if applicable, by the number of Option Shares sold on
the Option
Exercise Date pursuant to the Cashless Exercise Procedure) purchased
by
the Optionee, registered in the name of the Optionee. In the event
that
the Company or the Committee, in its sole discretion, shall determine
that, under applicable U.S. federal or state or non-U.S. securities
laws,
the transfer of any Option Shares must be subject to restriction,
any
certificates issued under this Section 3(a) shall bear an appropriate
legend restricting the transfer of such Option Shares and appropriate
stop
transfer instructions shall be delivered to the Company's stock
transfer
agent.
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(b)
Restrictions
on Sale upon Public Offering.
The
Optionee hereby agrees that, during the 20 day period prior to and the 180
days
following the effective date of
any
registration statement filed by the Company under the Securities Act of 1933,
as
amended, with respect to any underwritten public offering of any
shares
4
of
the
Company's capital stock, the Optionee will not effect any public sale or
distribution of shares of Common Stock (other than as part of such underwritten
public offering).
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4.
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Termination.
The Option (or the indicated portion thereof) shall terminate and
be
canceled immediately upon the first to occur of any of the following
events:
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(a)
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The
date of the expiration of the Option Period.
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(b)
The date of the termination of the Optionee's employment with the Company
and
its Subsidiaries for Cause.
(c)
The date of the termination of the Optionee's employment with the Company
and
its Subsidiaries for any reason, other than for Cause, with respect to any
portion of
the Option which is not subject to a Preferential Vesting Period and has
not
become vested and exercisable in accordance with Section 2 on or
prior to
the date of such termination.
(d)
In the case of the Optionee's termination of employment with the Company
and its
Subsidiaries for any reason other than for Cause or other than by reason
if the
Optionee's
Normal Retirement, Early Retirement, Disability or death (as each such term
is
defined below), or as a result of a reduction in force, cessation of
operations,
merger, consolidation or the sale or other disposition of the Company or
a
portion thereof (as set forth below) with respect to any portion of the
Option
which has become vested and exercisable in accordance with Section 2 on or
prior
to the date of such termination of employment, the last day of the 90
day
period immediately following the date of such termination of
employment.
| (e) |
Subject
to Section 4(j), in the case of the Optionee's termination of employment
with the Company and its Subsidiaries by reason of the Optionee's
Normal
Retirement,
with respect to any portion of the Option which has become vested
and
exercisable on or prior to the date of such termination of employment
or
is subject to a Preferential Vesting Period in accordance with Section
2,
the last day of the 36 month period immediately following the date
of such
termination of employment.
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| (f) |
Subject
to Section 4(j), in the case of the Optionee's termination of employment
with the Company and its Subsidiaries by reason of the Optionee's
Early
Retirement, with respect to any portion of the Option which has become
vested and exercisable in accordance with Section 2 on or prior to
the
date of such termination of employment, the last day of the 12 month
period immediately following the date of such termination of employment,
and with respect to any portion of the Option which is subject to
a
Preferential Vesting Period, the last day of the 12 month period
immediately following the last day of the Preferential Vesting
Period.
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| (g) |
Subject
to Section 4(j), in the case of the Optionee's termination of employment
with the Company and its Subsidiaries as a result of a reduction
in force,
cessation of operations, merger, consolidation or the sale or other
disposition of the stock or all or substantially all of the assets
of the
Company, a Subsidiary, or any division, business or other unit or
function
of the Company or any
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5
Subsidiary
(which is designated as such by the Vice President of Human Resources), with
respect to any portion of the Option which has become vested and
exercisable
in accordance with
Section 2 on or prior to the date of such termination of employment, (i)
the
last day of the 24 month period immediately following
the
date
of such termination of employment, provided
that the Optionee has completed five or more years of continuous service
with
the Company or any of its
Subsidiaries
or (ii) the last day of the 12 month period immediately following
the date of such termination of employment, if the Optionee has completed
less
than
five
years of continuous service with the Company or any of its Subsidiaries,
and
with respect
to any portion of the Option which is subject to a Preferential
Vesting
Period, the last day of the 12 month period immediately following the last
day
of the Preferential Vesting Period.
| (h) |
Subject
to Section 4(j), in the case of the Optionee's termination of employment
with the Company and its Subsidiaries by reason of the Optionee's
Disability, with respect to any portion of the Option which has become
vested and exercisable in accordance with Section 2 on or prior to
the
date of such termination of employment, the last day of the 12 month
period immediately following the date of such termination of employment,
and with respect to any portion of the Option which is subject to
a
Preferential Vesting Period, the last day of the 12 month period
immediately following the last day of the Preferential Vesting
Period.
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| (i) |
In
the case of the Optionee's termination of employment with the Company
and
its Subsidiaries by reason of the Optionee's death, with respect
to the
portion of the Option which has become vested and exercisable in
accordance with Section 2 on or prior to the date of such termination
of
employment, the last day of the 12 month period immediately following
the
date of such termination of employment, and with respect to any portion
of
the Option which is subject to a Preferential Vesting Period, the
last day
of the 12 month period immediately following the last day of the
Preferential Vesting Period.
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| (j) |
The
last day of the 12 month period immediately following the date of
the
Optionee's death during any period in which the Optionee was entitled
to
exercise any portion of the Option pursuant to Section 4(e), 4(f),
4(g) or
4(h), and with respect to any portion of the Option which is subject
to a
Preferential Vesting Period, the last day of the 12 month period
immediately following the last day of the Preferential Vesting
Period.
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(k)
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For
purposes of this Agreement, the following terms shall have the
following
meanings:
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"Cause"
shall mean (A)
the willful failure by the Optionee to perform substantially his
or her
duties as an employee of the Company or any Subsidiary (other than
due to
physical or mental illness) after reasonable notice to the Optionee
of
such failure, (B)
the Optionee's engaging in serious misconduct that is injurious
to the
Company or any Subsidiary, (C)
the Optionee's having been convicted of, or entered a plea of nolo contendere
to, a crime that constitutes a felony or (D)
the breach by the Optionee of any written covenant or agreement
with the
Company or any Subsidiary not to
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6
disclose
information pertaining to the Company or any Subsidiary or not to compete
or
interfere with the Company or any Subsidiary.
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"Disability"
shall mean a physical or mental disability or infirmity of the
Optionee as
defined in any disability plan sponsored by the Company or any
Subsidiary
which employs the Optionee or, if no such plan is sponsored by
the
Optionee's employer at the relevant time, the Lexmark Long-Term
Disability
Plan.
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"Early
Retirement" shall mean the Optionee's retirement (x)
at or after reaching age 55 and the completion of ten years continuous
service with the Company or any of its Subsidiaries or (y)
at or after the completion of 30 years of continuous service regardless
of
age.
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"Normal
Retirement" shall mean the Optionee's retirement (x)
at or after the later of age 65 and the completion of five years
of
continuous service with the Company or any of its Subsidiaries
or
(y)
at or after any earlier retirement age agreed to, in writing, by
the
Company after the date hereof and prior to the Optionee's termination
of
employment with the Company or any Subsidiary (other than any such
termination with the Company or any Subsidiary in connection with
the
contemporaneous reemployment by another Subsidiary or the
Company).
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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
3 shall
not be made until the Optionee, or, if applicable, the Optionee'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 Optionee's
applicable withholding and other tax requirements, the Company
shall be
entitled, in its sole discretion, to withhold Option Shares having
a Fair
Market Value on the Option Exercise Date equal to the applicable
amount of
such withholding and other tax requirements, subject to any rules
adopted
by the Committee or required to ensure compliance with applicable
law,
including, but not limited to, Section 16(b) of the Securities
Exchange
Act of 1934, as amended. Any cash payment made pursuant to a Change
in
Control 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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Assignability.
Unless otherwise provided in accordance with the provisions of
the Plan,
this Option may not be sold, transferred, pledged, assigned or
otherwise
alienated or hypothecated by the Optionee otherwise than by will
or the
laws of descent and distribution. The term "Optionee" as used in
this
Agreement shall include any permitted transferee of the
Option.
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7.
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Adjustment
in Capitalization.
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(a)
The aggregate number of shares of Common Stock subject to the Option and
the
option exercise price and/or exercisability criteria applicable to the Option
shall
7
be
proportionately adjusted to reflect, as deemed equitable and appropriate
by the
Committee, an Adjustment Event. To the extent deemed equitable and
appropriate
by the Committee, subject
to any required action by stockholders, in any merger, consolidation,
reorganization, liquidation, dissolution or other
similar
transaction, the Option shall pertain to the securities
and other property to which a holder of the number of shares of Common Stock
then covered by the
Option
would have been entitled to receive in connection with such event.
| (b) |
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 with respect to the Option 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
exercisability or transfer, as are applicable to the Option with
respect
to which such shares, cash or other property is received and stock
certificate(s) 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 Optionee (or the Optionee'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. |
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 Optionee's rights under this
Agreement without the Optionee'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. The Company
shall
give written notice to the Optionee of any such alteration or amendment
of
this Agreement as promptly as practicable after the adoption thereof.
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8
This Agreement may also be amended by a writing signed by both the Company
and
the Optionee.
| 11. |
No
Rights as a Stockholder.
The Optionee shall have no voting or other rights as a stockholder
of the Company with respect to any Option Shares until the exercise
of
the
Option and the recording of the Optionee's ownership of the Option
Shares
on the
stock transfer records for the Common Stock. No adjustment shall
be made
for dividends
or other rights issued with respect to the Common Stock for which
the
record
date is prior to the recording of such ownership of the Option
Shares.
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| 12. |
No
Guarantee of Employment or Future Incentive
Awards.
Nothing in the Plan or this Agreement shall be deemed
to:
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| (a) |
interfere
with or limit in any way the right of the Company or any Subsidiary
to
terminate Optionee’s employment at any time and for any reason with or
without cause;
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| (b) |
confer
upon Optionee any right to continue in the employ of the Company
or any
Subsidiary; and
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| (c) |
provide
Optionee 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. Miscellaneous.
(a) 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 Optionee, as the case may be, at the following addresses
or to such other address as the Company or the Optionee, 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
▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Secretary
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(ii)
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if
to the Optionee, to the Optionee 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) 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
9
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.
(c) 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.
(d) 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
Optionee without the prior written consent of the other party.
(e) 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.
(f) Jurisdiction.
The
Optionee 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 to the extent required by law,
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. Optionee further agrees that any action related to, or
arising
out
of,
this Agreement shall only be brought by Optionee exclusively in the federal
and
state courts located in Fayette County, Kentucky. Nothing in this
Agreement
shall affect any
right
that the Company may
10
otherwise
have to bring any action or proceeding relating to this Agreement in the
courts
of any jurisdiction.
(g) 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.
(h) 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.
(i)
Internal
Revenue Code Section 409A.
The
Company intends for this Agreement to comply with the provisions of Section
409A
of the Code and the guidance issued thereunder. Notwithstanding Section 10
hereof, the Company intends to amend this Agreement, and hereby reserves
the
right to do so without the Optionee’s consent, in the future as required to
conform to the provisions of Section 409A of the Code with respect to amounts
subject to Section 409A of the Code.
(j)
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. In this Agreement all references to "dollars" or "$" are to United
States dollars.
(k)
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.
11
IN
WITNESS WHEREOF, the Company and the Optionee have executed this Agreement
as of
the date first above written.
LEXMARK
INTERNATIONAL, INC.
By:
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title:
Vice
President of Human Resources
OPTIONEE:
By: _____________________________________
(sign
your
name and date)
|
|
Name:
|
|
ID#:
|
|
Address
of
the Optionee:
_______________________________
Beneficiary
Name
|
Number
of shares of Common Stock subject to the
Option:
|