lxkexhibit104.htm


    

      


       

      Exhibit
10.4

       



      EMPLOYMENT
AGREEMENT

      


      EMPLOYMENT AGREEMENT (the "Agreement"),
dated as of «Effective_Date», between Lexmark International, Inc., a Delaware
corporation, with its principal place of business in Fayette County, Kentucky
(the "Employer"), and «Name» (the "Employee").

      


      W I T N E S S E T
H:

      


      WHEREAS, Employer and Employee desire
to enter into an employment agreement and terminate the Employment Agreement
entered into by the parties on «Date_of_Old_EE_Agree», each thereby
relinquishing all rights and benefits and terminating all duties and obligation
of each party thereunder.

      


      NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements contained herein, and for other
good and valuable consideration, the parties hereto hereby agree as
follows:

      


      1.           Term; Position and
Responsibilities.

      


      (a)           Term of
Employment.  Unless the Employee's employment shall sooner
terminate pursuant to Section 6, the Employer shall employ the Employee for a
term commencing on the day hereof and ending on October 31, 2010 (the "Term")
and the Employee's employment shall continue thereafter at will.

      


      (b)           Position and
Responsibilities.  The Employee will serve as «Title» and in
such other executive capacity or capacities as may be determined from time to
time by or under the authority of the Board of Directors of the Employer
("Employer's Board"), and the Employee will devote all of his skill, knowledge
and working time (except for reasonable vacation time and absence for sickness
or similar disability) to the conscientious performance of his
duties.  The Employee acknowledges that, as a result of his position
with the Employer, he has responsibility for the operation and worldwide
competitive positioning of the Employer and for ensuring that the Employer
remains a leading developer, manufacturer and supplier of printers,
multifunctional devices and associated supplies, services and solutions on a
worldwide basis.  The Employee represents that he is entering into
this Agreement voluntarily and that his employment hereunder and compliance by
him with the terms and conditions of this Agreement will not conflict with or
result in the breach of any agreement to which he is a party or by which he may
be bound.

      


      2.           Base
Salary.  As compensation for the services to be performed by
the Employee hereunder, the Employer will pay the Employee an annual base salary
of $«Base_Salary» during the term of his employment hereunder.  The
Employer will review the Employee’s base salary from time to time during the
period of his employment hereunder and, in the unfettered discretion of the
Employer, may increase such base salary from time to time based upon the
performance of the Employee, the financial condition of the Employer, prevailing
industry salary scales and such other

       

       

      
        
          
          

        

        
           

          
            

          

        

        
          
          

        

      

      factors
as the Employer shall consider relevant.  (The annual base salary
payable to the Employee under this Section 2, as the same may be increased from
time to time, shall hereinafter be referred to as the “Base Salary.”)  The
Base Salary payable under this Section 2 shall be reduced to the extent that the
Employee elects to defer such Base Salary under the terms of any deferred
compensation or savings plan maintained or established by the Employer, provided
that any such reduction of the Base Salary shall not be taken into account for
purposes of calculating the Annual Bonus (as defined in Section
3).  The Employer shall pay the Employee the Base Salary in biweekly
installments, or in such other installments as may be mutually agreed upon by
the Employer and the Employee.

       

        


        3.   Short-term Incentive
Compensation.  Commencing with the «ST_Incentive_Date»
performance period, the Employee shall receive an annual incentive bonus award
(the "Annual Bonus") of up to «IC_Max_»% of the Employee’s Base Salary paid to
the Employee during each calendar year during the term of the Employee's
employment hereunder.  Such Annual Bonus may be awarded pursuant to
the terms of the Employer’s Senior Executive Incentive Compensation Plan (the
“SEICP”) if the Employee is a participant in such plan.  The Annual
Bonus shall be determined by the Employer based on annual objectives established
by the Employer and approved by the Compensation and Pension Committee of
Employer’s Board (the “Annual Objectives”).  If all Annual Objectives
are achieved, the Annual Bonus shall be «IC_Target»% of the Employee’s Base
Salary paid to the Employee during each calendar year during the term of the
Employee's employment hereunder (the “Target Bonus”).  Notwithstanding
the foregoing, the Employer may increase or decrease the amount of the Annual
Bonus (including providing no bonus) based upon the Employer’s judgment of
Employee’s overall contribution to the Employer’s business
results.  In any event, the Employee’s Annual Bonus shall not exceed
the Maximum Award as set forth in the SEICP.  To the extent that the
Employee is a participant in the SEICP at the relevant time, the terms of the
SEICP, as amended from time to time, are incorporated into and made a part of
this Agreement.  In the event of a conflict, the terms of the SEICP
shall control.  The Annual Bonus shall be paid to the Employee within
the first 2-1/2 months of the calendar year immediately following the end of the
performance period.



      4.           Employee
Benefits.  During the term of the Employee's employment
hereunder, employee benefits, including, but not limited to, life, medical,
dental and disability insurance, will be provided to the Employee in accordance
with programs at the Employer then available to executive
employees.  The Employee shall also be entitled to participate in all
of the Employer's profit sharing, pension, retirement, deferred compensation and
savings plans, as the same may be amended and in effect from time to time, at
levels and having interests commensurate with the Employee's then current period
of service, compensation and position.

      


      5.           Perquisites and
Expenses.

      


      
        	
                (a)  

              	
                General.  During
      the term of the Employee's
employment

              


      

       

       

      
        
          
          

        

        
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      hereunder,
the Employee shall be entitled to participate in any special benefit or
perquisite program available from time to time to executive employees of the
Employer on the terms and conditions then prevailing under such
program.

      


      
        	
                (b)  

              	
                Business Travel,
      Lodging, etc.  The Employer shall reimburse
      the

              


      

      Employee
for reasonable travel, lodging and meal expenses incurred by him in connection
with his performance of services hereunder upon submission of evidence,
satisfactory to the Employer, of the incurrence and purpose of each such
expense.  Any reimbursement in accordance with this Section 5(b) shall
be made promptly as incurred, and in no event later than December 31 of the year
following the year in which such expenses were incurred, and the amount of such
expenses eligible for payment or reimbursement in any year shall not affect the
amount of such expenses eligible for payment or reimbursement in any other
year.

      


      6.           Termination of
Employment.

      


      (a)           Termination Due to Death or
Disability.  In the event that the Employee's employment
hereunder terminates due to death or is terminated by the Employer due to the
Employee's Disability (as defined below), no termination benefits shall be
payable to or in respect of the Employee except as provided in Section
6(f)(ii).  For purposes of this Agreement, "Disability" shall mean a
physical or mental disability that prevents the performance by the Employee of
his duties hereunder lasting (or likely to last, based on competent medical
evidence presented to Employer's Board) for a continuous period of six months or
longer.  The reasoned and good faith judgment of Employer's Board as
to the Employee's Disability shall be final and shall be based on such competent
medical evidence as shall be presented to it by the Employee or by any physician
or group of physicians or other competent medical experts employed by the
Employee or the Employer to advise Employer's Board.

      


      (b)           Termination by the Employer
for Cause.  The Employee may be terminated for Cause by the
Employer.  "Cause" shall mean (i) the willful failure of the Employee
substantially to perform his duties hereunder (other than any such failure due
to physical or mental illness) after a demand for substantial performance is
delivered to the Employee by the executive to which the Employee reports or by
Employer's Board, which notice identifies the manner in which such executive or
Employer's Board, as the case may be, believes that the Employee has not
substantially performed his duties, (ii) the Employee's engaging in willful and
serious misconduct that is injurious to the Employer or any of its subsidiaries,
(iii) the Employee's making a substantial, abusive use of alcohol, drugs, or
similar substances, and such abuse in the Employer's judgment has affected his
ability to conduct the business of the Employer in a proper and prudent manner,
(iv) the Employee's conviction of, or entering a plea of nolo contendere to, a
crime that constitutes a felony, or (v) the willful and material breach by the
Employee of any of his obligations hereunder, or the willful and material breach
by the Employee of any written covenant or agreement with the Employer or any of
its affiliates not to disclose any information pertaining to the Employer or any
of its affiliates or not to compete or interfere with the Employer or any of its
affiliates.

       

      
 

      
        
          
          

        

        
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      (c)           Termination by the Employer
Without Cause.  The Employee may be terminated Without Cause by
the Employer.  A termination "Without Cause" shall mean a termination
of employment by the Employer other than due to death, Disability as defined in
Section 6(a) or Cause as defined in Section 6(b).

      


      (d)           Termination by the
Employee.  The Employee may terminate his employment for "Good
Reason."  "Good Reason" shall mean a termination of employment by the
Employee within 90 days following (i) any assignment to the Employee of any
duties, functions or responsibilities that are significantly different from, and
result in a substantial and material diminution of, the duties, functions or
responsibilities that the Employee has on the date hereof or (ii) the failure of
the Employer to obtain the assumption of this Agreement by any successor as
contemplated by Section 14.  The Employee’s termination shall be
contingent upon the Employer’s failure to cure the event triggering the
Employee’s termination for Good Reason within 30 days following the receipt of
the Employee’s written Notice of Termination pursuant to Section
6(e).

      


      (e)           Notice of
Termination.  Any termination by the Employer pursuant to
Section 6(a), 6(b) or 6(c), or by the Employee pursuant to Section 6(d), shall
be communicated by "Notice of Termination" addressed to the other party to this
Agreement.  A "Notice of Termination" shall mean a written notice
stating that the Employee's employment hereunder has been or will be terminated,
indicating the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination of employment.  A Notice of
Termination by the Employee pursuant to Section 6(d) must be provided to the
Employer within 90 days of the date the Employee has actual knowledge of the
occurrence of the event or circumstances described in the definition of Good
Reason.

      


      (f)           Payments Upon Certain
Terminations.

      


      (i)           In
the event of a termination of the Employee's employment Without Cause or a
termination by the Employee of his employment for Good Reason, the Employer
shall pay to the Employee (A) (1) the greater of (x) his Base Salary, if any,
for the period from the Date of Termination (as defined below) through the last
day of the Term and (y) an amount equal to one year's Base Salary, less (2) any
amounts paid or to be paid to the Employee under the terms of any severance plan
or program of Employer, if any, as in effect on the Date of Termination, (B) the
Annual Bonus with respect to a completed fiscal year to the extent not
theretofore paid to the Employee and (C) a Pro Rata Share of the Annual Bonus
(as defined below) for the fiscal year in which the Date of Termination
occurred.  Amounts payable under (A) above will be paid to the
Employee in a lump sum in cash as soon as reasonably practicable after the Date
of Termination, provided that the payment at such time can be characterized as a
“short-term deferral” for purposes of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”), or as otherwise exempt from the provisions
of  Code

       

      
        
          
          

        

        
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         Section
409A, or if any portion of the payment cannot be so characterized, and the
Employee is a “specified employee” under Code Section 409A, such portion of the
payment shall be delayed until the earlier to occur of the Employee’s death or
the date that is six months and one day following the Employee’s Date of
Termination.  The Annual Bonus payable to the Employee under (B) above
will be paid to the Employee within the first 2 1⁄2 months afterthe close of the
calendar year to which the Annual Bonus applies, and the Pro Rata Share of the
Annual Bonus under (C) above shall be payable as described in Section 6(f)(iii)
below.

      

      


      (ii)           If
the Employee's employment shall terminate upon his death or Disability or if the
Employer shall terminate the Employee's employment for Cause, the Employer shall
pay the Employee his full Base Salary through the Date of Termination, plus, in
the case of termination upon the Employee's death or Disability, the Annual
Bonus as set forth in 6 (f)(i)(B) above and a Pro Rata Share of the Annual Bonus
(as defined below) for the fiscal year in which death or Disability
occurs.  Any benefits payable to or in respect of the Employee under
any otherwise applicable plans, policies and practices of the Employer shall not
be limited by this provision.

      


      (iii)           For
purposes of this Section 6, the "Pro Rata Share of the Annual Bonus" shall be
calculated and paid as follows.  The Pro Rata Share of the Annual
Bonus (A) will be equal to the product of (1) the Annual Bonus, calculated based
on the actual achievement, as certified by the Compensation and Pension
Committee of Employer’s Board, of the Annual Objectives, and (2) a fraction
equal to the number of full months in such year prior to the Date of Termination
over 12, and (B) will be paid to the Employee within the first 2-1/2 months
after the close of calendar year in which the Date of Termination
occurs.

      


      (iv)           Notwithstanding
anything to the contrary in Section 6(f)(i) above, if the Employee becomes
entitled to receive severance pay under the Change in Control Agreement by and
between the Employer and the Employee (the “CIC Agreement”), including but not
limited to severance pay payable as a result of the Employer’s failure to obtain
the assumption of this Agreement by any successor as contemplated by Section 14
hereof, such severance pay under the CIC Agreement shall be in lieu of the
severance pay to which the Employee would otherwise have been entitled to under
clauses (A), (B) and (C) of Section 6(f)(i) above.

      


      (g)           Date of
Termination.  As used in this Agreement, the term "Date of
Termination" shall mean (i) if the Employee's employment is terminated by his
death, the date of his death, (ii) if the Employee's employment is terminated by
the Employer for Cause, the date on which Notice of Termination is received,
(iii) if the Employee's employment is terminated Without Cause or due to the
Employee's Disability, 30 days after the date on which Notice of Termination is
received or, if no such Notice is given, 30 days after the date of termination
of employment, and (iv) if the Employee’s employment is terminated by the
Employee for Good Reason, 31 days after the date on which Notice of Termination
is received, provided that the Employee does not terminate his employment for
Good Reason until he has given the Employer at least 30 days in 

       

      
        
          
          

        

        
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      which to
cure the event or circumstances set forth in the Notice of Termination and such
event or circumstance is not cured by the 30th
day.

      


      (h)           Condition to
Payments.  The Employer's obligation to make any payments
hereunder shall be conditioned upon the Employee’s continued compliance with the
terms of this Agreement and the Employer's receipt of an appropriately signed
"General Release and Covenant Not to Sue" in form and substance satisfactory to
the Employer.  Payments made under this Agreement shall immediately
cease and the Employee shall repay within 60 days of the violation all amounts
previously paid pursuant to Section 6(f) in the event that the Employee violates
the terms of the "General Release and Covenant Not to Sue" or the Employee
violates any of the covenants contained in Sections 7, 8, 9 and 10 of this
Agreement prior to the Date of Termination or thereafter.

      


      7.           Unauthorized
Disclosure.  During and after the term of his employment
hereunder, the Employee shall not, without the written consent of Employer's
Board, the General Counsel
of the Employer, or the Chief Executive Officer of the Employer, disclose to any
person (other than an employee or director of the Employer or its affiliates, or
a person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by the Employee of his duties as an executive of the
Employer) any confidential or proprietary information, knowledge or data that is
not theretofore publicly known and in the public domain obtained by him while in
the employ of the Employer or its subsidiaries with respect to the Employer or
any of its subsidiaries or affiliates or with respect to any products,
improvements, formulas, recipes, designs, processes, customers, methods of
distribution, operation or manufacture, sales, prices, profits, costs,
contracts, suppliers, business prospects, business methods, techniques,
research, plans, strategies, personnel, organization, trade secrets or know-how
of the Employer or any of its subsidiaries or affiliates (collectively,
"Proprietary Information"), except as may be required by law or in connection
with any judicial or administrative proceedings or inquiry.

      


      8.           Non-Competition.  During
the period of the Employee's employment and thereafter for a period equal to the
number of months providing the basis for calculating any termination payments to
the Employee under Section 6, if any such payments are required, but in any
event for at least 12 months from the Date of Termination, the Employee,
regardless of whether such termination is at the insistence of the Employer or
the Employee, shall not engage directly or indirectly in, become employed by,
serve as an agent or consultant to, or become a partner, principal or
stockholder of, any partnership, corporation or other entity which competes with
a business (including any product or service offering of such business) that
represents 5% or more of the aggregate gross revenues of the Employer and its
subsidiaries, or competes with Employer’s solution services business, and which
is then engaged in such competition in any geographical area in which the
Employer or any of its subsidiaries is then engaged in such business without
first obtaining written approval from the Employer, provided that the
Employee's ownership of less than 1% of the issued and outstanding stock of any
corporation whose stock is traded on an established securities market shall


       

      
        
           

        

        
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      not
constitute competition with the Employer.  The Employer may grant or
deny such approval in its sole discretion.

      


      9.           Non-Interference.  During
the period of the Employee's employment and thereafter for a period equal to the
number of months providing the basis for calculating any termination payments to
the Employee under Section 6, if any such payments are required, but in any
event for at least 36 months from the Date of Termination, the Employee,
regardless of whether such termination is at the insistence of the Employer or
the Employee, shall not, directly or indirectly, for his own account or the
account of any other person or entity: (a) disparage, criticize, or otherwise
make any derogatory statements regarding the products and services of the
Employer or its subsidiaries or Employer’s Board, officers or employees; (b)
solicit, recruit, induce, employ or hire, or attempt to solicit, recruit,
induce, employ or hire, directly or by assisting others (including, but not
limited to, any new employer, any employee of the Employer or its subsidiaries,
or any former employee of the Employer or its subsidiaries who within six months
of that time has been employed by the Employer or its subsidiaries) any person
or entity who or which is at the time, or within six months of that time has
been, employed by or otherwise engaged to perform services for the Employer or
its subsidiaries; or (c) solicit, interfere with, or otherwise entice or attempt
to entice away any person or entity who or which is a customer or prospective
customer of the Employer or its subsidiaries (including a person or entity who
or which is a customer or prospective customer by either direct contract or
relationship with the Employer or its subsidiaries or who or which has
purchased, leased, or otherwise acquired the Employer’s or its subsidiaries’
products or service from the Employer’s or its subsidiaries’ distributors,
parties for whom Employer is an original equipment manufacturer, dealers or
resellers), a supplier to the Employer or its subsidiaries, or has, within the
previous 36 months, been a customer of or supplier to the Employer or its
subsidiaries.

      


      10.           Return of
Documents.  In the event of the termination of the Employee's
employment for any reason, the Employee will deliver to the Employer all
memoranda, notes, records, drawings, manuals, or other documents, and all copies
thereof including any electronic information (e.g., e-mails and spreadsheets) or
copies, that are in the possession of the Employee, whether made or compiled by
the Employee or furnished to the Employee by the Employer.

      


      11.           Forfeiture of Realized and
Unrealized Gains on Incentive Awards for Breach of this
Agreement.  If the Employee violates any provision of Sections
7, 8, 9 or 10 of this Agreement, and the Employee is no longer employed by the
Employer or its subsidiaries, whether or not the termination of employment
occurs prior to or subsequent to such violation, then (1) all stock incentive
awards, including but not limited to stock options, restricted stock awards and
any deferred stock units, held by the Employee shall terminate effective as of
the date on which the Employee violates this Agreement, unless terminated sooner
by operation of another term or condition of the Employee’s stock incentive
award agreement or the plan pursuant to which such award has been issued, and
(2) any gain realized by the Employee on the vesting of 

       

      
        
           

        

        
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      restricted
stock or deferred stock units, and 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 Employee from exercising all or a portion
of the Employee’s options, within 18 months preceding the earlier of (a) the
violation of Section 7, 8, 9, or 10 and (b) the Employee’s Date of Termination;
and through the later of (c) 18 months following the violation of Section 7, 8,
9, or 10 and (d) such period of time as it takes the Employer to discover such
violation, shall be paid promptly by the Employee to the
Employer.  The Employee agrees that the Employer has the right to
withhold the amount owed to it from any amounts that the Employer may owe the
Employee from time to time (including, but not limited to, wages or other
compensation, fringe benefits, or vacation pay); provided, however, if any
amounts that the Employer is required to pay to the Employee are subject to Code
Section 409A, any such withholding by the Employer from those amounts shall
comply with Code Section 409A to the extent applicable thereto.  The
Employee and the Employer agree that this forfeiture provision does not waive
any other rights at law that the Employer may have, including but not limited
to, equitable rights which would include injunctive relief.

      


      12.           Waiver of Defenses;
Enforceability of Covenants.  The Employee acknowledges and
agrees that the covenants contained in Sections 7, 8, 9 and 10 of this Agreement
(as well as each subsection of such Sections) shall be construed as agreements
independent of each other and of any provision of this or any other contract
between the parties hereto, and that the existence of any claim or cause of
action by the Employee against the Employer, whether predicated upon this or any
other contract, shall not constitute a defense to the enforcement by the
Employer of said covenants.  The Employee further agrees that the term
of the covenants contained in Sections 7, 8, 9 and 10 of this Agreement (as well
as each subsection of such Sections) and the geographic limitations are
reasonable limits within the context of the Employee’s current or former
activities for the Employer.  The Employee therefore waives any
defense to enforcement of these covenants on the grounds that these covenants
are not valid or that the terms of these covenants are not reasonable, but the
Employee expressly does not waive the right to seek a construction of the
covenants themselves.  In the event that any provisions relating to
these covenants shall be declared by a court of competent jurisdiction to exceed
the maximum time periods and/or areas of restriction deemed reasonable and
enforceable, the time period and/or areas of restriction deemed reasonable and
enforceable by such court shall become and thereafter be the maximum time period
and/or areas.

      


      13.           Employer’s Right to Obtain
an Injunction.  The Employee acknowledges that the Proprietary
Information and the covenants contained in Sections 7, 8, 9 and 10 of this
Agreement are extremely valuable to the Employer, and the Employee recognizes
and agrees that the injury the Employer will suffer in the event of the
Employee’s breach of this Agreement cannot be compensated by monetary damages
alone, including pursuant to Section 11, and the Employee therefore agrees that
the Employer, in addition to and without limiting any other remedies or rights
that it may have, either under this Agreement or otherwise, shall have the right
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      injunction
against the Employee (including but not limited to, a temporary restraining
order or a preliminary or permanent injunction), without the posting of any bond
and without proof of actual damages, to prevent breaches or threatened breaches
of this Agreement and/or to compel specific performance of this Agreement from a
court of competent jurisdiction, enjoining any such breach.

      


      14.           Assumption of
Agreement.  The Employer will require any successor (by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Employer, by agreement in form and substance
reasonably satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken
place.  Failure of the Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
entitling the Employee to receive severance pay under the CIC Agreement upon a
termination of employment by Employee for “Good Reason” as defined in the CIC
Agreement.  As used in this Agreement, "Employer" shall mean the
Employer as hereinbefore defined and any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.

      


      15.           Entire
Agreement.  Except as otherwise expressly provided herein, this
Agreement, the CIC Agreement and any Indemnification Agreement made and entered
into by and between Employer and Employee or any Indemnification Agreement by
and among Lexmark International Group, Inc. and/or the Employer and the Employee
(the “Indemnification Agreement”) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements relating to
such subject matter (including those made to or with the Employee by any other
person or entity) are merged herein, in the CIC Agreement and in the
Indemnification Agreement and superseded hereby and thereby.  In the
avoidance of any doubt, this Agreement does not alter, modify or otherwise amend
or supersede any agreement or understandings between the Employer and the
Employee as to the Lexmark Agreement Regarding Confidential Information and
Intellectual Property, any stock option plan/agreements, sales commission
plans/agreements, bonus plans/agreements, incentive compensation
plans/agreements or restricted stock unit plans/agreements that may be offered
to the Employee by the Employer, from time to time.

      


      16.           Indemnification.  The
Employer agrees that it shall indemnify and hold harmless the Employee to the
fullest extent (a) permitted by Delaware law from and against any and all
liabilities, costs, claims and expenses arising out of the employment of the
Employee hereunder, except to the extent arising out of or based upon the gross
negligence or willful misconduct of the Employee and (b) provided by the
Indemnification Agreement.

      


      17.           No
Mitigation.  The Employee shall not be required to mitigate the
amount of any payment that the Employer becomes obligated to make in connection
with this 

       

      
        
           

        

        
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      Agreement,
the CIC Agreement or the Indemnification Agreement, by seeking other employment
or otherwise.

      


      
        	
                18.  

              	
                Miscellaneous.

              


      

      


      (a)           Binding
Effect.  This Agreement shall be binding on and inure to the
benefit of the Employer and its successors and permitted
assigns.  This Agreement shall also be binding on and inure to the
benefit of the Employee and his heirs, executors, administrators and legal
representatives.

      


      (b)           Governing Law and
Venue.  If a dispute arises between the parties, including
disputes that may arise out of or relate to this Agreement or the breach,
termination, or validity thereof, or the compensation, promotion, demotion,
discipline, discharge, or terms and conditions of employment of the Employee
(hereinafter, a “Dispute”), and if a Dispute cannot be settled through direct
discussions, the parties agree that a federal or state court located in Fayette
County, in the Commonwealth of Kentucky, is an appropriate forum and the parties
hereby consent to the legal jurisdiction of such courts.  AS SUCH, ANY
AND ALL ACTIONS, SUITS, OR OTHER LEGAL PROCEEDINGS ARISING FROM OR REGARDING
THIS AGREEMENT AND ANY DISPUTE BETWEEN THE PARTIES (INCLUDING ANY ACTION BY THE
EMPLOYEE AGAINST ANOTHER EMPLOYEE OR AGENT OF THE EMPLOYER) SHALL BE BROUGHT
EXCLUSIVELY IN A STATE OR FEDERAL COURT SITUATED WITHIN FAYETTE COUNTY IN THE
COMMONWEALTH OF KENTUCKY.  THE PARTIES HEREBY WAIVE ANY OBJECTION THEY
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH PROCEEDING IN FAYETTE COUNTY,
THE LOCATION OF THE PRINCIPAL OFFICE OF THE EMPLOYER; provided, however, that an
action or ancillary proceeding to enforce injunctive relief or a judgment
obtained by a party in said Fayette County court may be in any appropriate
forum.  This Agreement shall be deemed to have been entered into in
the Commonwealth of Kentucky; this Agreement is a contract performable wholly or
partly within the Commonwealth of Kentucky; and this Agreement as well as any
Dispute shall be governed by, enforced and interpreted in accordance with the
laws of the Commonwealth of Kentucky, notwithstanding its conflict of law
provisions.  In any action by the Employer against the Employee in any
forum, the Employee waives personal service of any summons, complaint or other
process and agrees that the service thereof may be made personally or by
registered or certified mail directed to the Employee at his home
address.  THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR OTHER LEGAL PROCEEDING.

      


      (c)           Internal Revenue Code
Section 409A.  For purposes of this Agreement, the terms
“terminate,” “terminated” or “termination of employment,” and variations
thereof, are intended to mean a separation from service or termination of
employment that constitutes a “separation from service” under Code Section
409A.  The time or schedule of any payment or amount scheduled to be
paid pursuant to the terms of this Agreement that is subject to Code Section
409A may not be accelerated 

       

      
        
           

        

        
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      except as
otherwise permitted under Code Section 409A and the guidance and Treasury
Department regulations issued thereunder.  The parties intend that
this Agreement be interpreted and construed in compliance with Section 409A of
the Code and Treasury Department regulations and other interpretive guidance
issued thereunder to the extent applicable.  Notwithstanding the
foregoing, the Employer shall not be required to assume any increased economic
burden in connection therewith.

      


      (d)           Taxes.  The
Employer may withhold from any payments made under this Agreement all federal,
state, city or other applicable taxes.

      


      (e)           Amendments.  No
provision of this Agreement may be modified, waived or discharged unless such
modification is approved by Employer’s Board or such waiver or discharge is
approved by Employer's Board or Chief Executive Officer, and is agreed upon in
writing by the Employee and the Chief Executive Officer, or in the case of the
Chief Executive Officer, the Chair of the Compensation and Pension
Committee.  Notwithstanding the foregoing, any modification, waiver or
amendment required by law may be made, or be deemed to be made, by a duly
authorized officer of the Employer without the express approval of Employer’s
Board and without the Employee’s consent.

      


      (f)           Reformation;
Severability.  If any provision of this Agreement
is

      held by a
court to be unreasonable in scope or duration or otherwise, the court shall, to
the extent permitted by law, reform such provision so that it is enforceable,
and enforce the applicable provision as so reformed.  Reformation of
any provision of this Agreement pursuant to this subsection shall not affect any
other provision of this Agreement or render this Agreement unenforceable or
void.

      


      (g)           Notices.  Any
notice or other communication required or permitted

      to be
delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or on the third business day after the mailing thereof,
and (iv) addressed as follows (or to such other address as the party entitled to
notice shall hereafter designate in accordance with the terms
hereof):

      


      (A)           if
to the Employer, to it at:

      


      One Lexmark Centre Drive

      740 West New Circle Road

      Lexington, Kentucky 40550

      Attention: General
Counsel

      


      (B)           if
to the Employee, to him at the addresslisted on the signature page
hereof.

      


      
        
           

        

        
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      (h)           Survival.  Sections
7, 8, 9,10, 11, 12, 13, 16, 17 and 18 and, if the Employee's employment
terminates in a manner giving rise to a payment under Section 6(f), Section 6(f)
and 14 shall survive the termination of the employment of the Employee hereunder
as well as the termination of this Agreement.

      


      (i)           Counterparts.  This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.

      


      (j)           Headings.  The
section and other headings contained in this Agreement are for the convenience
of the parties only and are not intended to be a part hereof or to affect the
meaning or interpretation hereof.

      


      (k)           Pronouns.  Use
of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.

      


      (l)           Termination of Existing
Agreement.  Upon the execution of this Agreement by a
representative of the Employer and the Employee, the Employment Agreement
entered into by the parties on «Date_of_Old_EE_Agree» is hereby terminated, and
each party to this Agreement hereby relinquishes all rights and benefits and
terminates all duties and obligations pursuant to such agreement.

      


      (m)           Employee
Acknowledgment.  The Employee represents and confirms that the
Employee has been, and is hereby, advised by the Employer to consult (at the
Employee’s expense) with an attorney and otherwise seek financial and legal
advice prior to executing this Agreement, has thoroughly discussed all aspects
of this Agreement with such advisors as the Employee has determined appropriate,
has carefully read and fully understands all of the provisions of this
Agreement, is not relying on any statements made by any representative,
attorney, employee, officer or member of the Board of Directors of the Employer,
is voluntarily entering into this Agreement, and has had a reasonable period of
time to consider this Agreement.

      


      {Signature
Page Follows}


      
        
           


        

        
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      IN WITNESS WHEREOF, the Employer has
duly executed this Agreement by its authorized representatives and the Employee
has hereunto set his hand, in each case effective as of the date first above
written.

      


      LEXMARK INTERNATIONAL,
INC.

      


      


      By:
_______________________________

             Paul
J. Curlander

                                            
Chairman and Chief Executive Officer

      
 

      


      


      THE
EMPLOYEE:  «Name»

      


      


      ___________________________________

      


      Address:      
  «Address_1»

                                                                                                                              
«Address_2»

      


      



      
        
           


        

        
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