lxkexhibit109.htm


     

    Exhibit 10.9

    

      Lexmark
International, Inc.

      


      2008–2010
Long-Term Incentive Plan

      


      Agreement

      


      This
2008–2010 Long-Term Incentive Plan (the "2008-2010 LTIP") Agreement
(“Agreement”) between Lexmark International, Inc., a Delaware corporation (the
"Company"), and the person specified on the signature page (the "Participant")
is entered into as of March 24, 2008.

      


      This
Agreement is only a summary of the principal terms governing the 2008-2010
LTIP.  The 2008-2010 LTIP is subject in all respects to the terms of
the Lexmark International, Inc. Stock Incentive Plan, as amended and restated
April 30, 2003 (the “Plan”). In the event of any conflict or inconsistency
between the terms of this Agreement and the terms of the Plan, the terms of the
Plan shall control.  It is important that the Participant read and
understand the Plan and not rely solely on the brief description that
follows.  All capitalized terms used but not defined herein shall have
the meaning set forth in the Plan.

      


      Overview

      


      The
2008-2010 LTIP is designed to reward the achievement of specific performance
objectives over a three-year period.  The Compensation and Pension
Committee of the Board of Directors of the Company (the “Committee”) established
the performance objectives and performance measures set forth below for the
performance period beginning January 1, 2008 and ending December 31, 2010 (the
“Performance Period”).

      


      Depending
upon the Company's attainment of the performance objectives and certain
financial performance measures of the Company’s peers, the Participant may be
eligible to receive a payment under the 2008-2010 LTIP, as set forth
below.

      


      Plan
Measurements

      


      For the
Performance Period, the Committee has established the following cumulative
performance measures based on the Company’s strategic plan for the Performance
Period:

      


      


      [Intentionally
Omitted]

      


      


      


      At the
end of the three-year Performance Period, if the cumulative attainment of
Operating Income without Restructuring and Cash Cycle results in no funding for
the 2008-2010 LTIP, there is an additional calculation comparing the three-year
average 

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      Return on
Invested Capital (“ROIC”) for the Company with that of its peer companies over
the same three-year period.  The calculation of the Company’s
three-year average ROIC will be based upon the average of Net Income before
extraordinary items for fiscal years 2008 through 2010.  If the
Company’s three-year average ROIC is at or above the median of the three-year
average of the ROIC of the peer companies included in the S&P Technology
Index or, in the event that such index is no longer available, such other index
as determined to be appropriate by the Committee at the time in its sole
discretion, the 2008-2010 LTIP will be funded at the Minimum level regardless of
any below-Minimum attainment for the two performance measures.

       

      Target
Opportunity
 

      The
2008-2010 LTIP awards are denominated in cash, but in the Committee’s sole
discretion may be paid in cash, the Company’s Class A Common Stock or a
combination of cash and the Company’s Class A Common Stock. For the Performance
Period, your target award is [INSERT
TARGET].

      


      The chart
below and the examples in Attachment A
illustrate how the 2008-2010 LTIP awards will be calculated.  The
level of attainment for Operating Income without Restructuring is not linked to
the level of attainment for the Cash Cycle objective.  As a result,
the level of attainment on each performance measure may independently generate a
payment to Participant’s based on its achievement.

      


      
        	
                Target
      Opportunity

              	
                Minimum

              	
                Target

              	
                Maximum

              
	
                Operating
      Income without Restructuring

              	
                18%

              	
                60%

              	
                120%

              
	
                Cash
      Cycle

              	
                12%

              	
                40%

              	
                80%

              


      

      


      Committee
Discretion

      


      The
Committee may use its sole discretion in determining the amount of any payment,
or no payment, to Participants under the 2008-2010 LTIP based on any factors it
deems appropriate.

      


      Payout
Timing

      


      The
Committee intends to review and approve the Company’s business results as
compared to the 2008-2010 LTIP financial performance measures and, if
applicable, the Company’s three-year average ROIC compared to the peer companies
included in the index stated above following the end of the three-year
Performance Period.  These reviews are expected to occur in a 2011
Committee meeting.  Payments will be made only after the Committee
approval has occurred, and any such payments will be made in 2011.

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      Separation from
Service

      


      Except in
the event of the death, Disability or Retirement of the Participant during the
Performance Period, the Participant must be employed at the end of the
Performance Period (December 31, 2010) to receive a payout.  If the
Participant should have a separation from service (as defined below) due to
death, Disability or Retirement during the Performance Period, the payout, if
any, is achieved based on actual performance of the Company as of the end of the
fiscal year in which the death, Disability or Retirement occurs, subject to the
approval of the Committee, and will be prorated based on the number of complete
months of service performed during the Performance Period prior to the
separation from service due to death, Disability or Retirement divided by
36.  If the separation from service is due to the Participant’s death,
the payout, if any, will be made in the calendar year after the end of the
fiscal year in which the Participant’s death occurs.  If the
separation from service from service is due to the Participant’s Disability or
Retirement, the payout, if any, will be made in the calendar year after the end
of the fiscal year in which the Participant’s separation from service due to
Disability or Retirement occurs, but no earlier than the date that is six months
and one day after the Participant’s separation from service due to Disability or
Retirement.  For purposes of the 2008-2010 LTIP, “separation from
service” shall mean a separation from service from the Company or its
Subsidiaries for purposes of Code Section 409A, using the default provisions set
forth in Section 1.409A-1(h) of the Treasury Regulations, or any successor
regulation thereto.

      


      Forfeiture of the
Award

      


      The
Participant acknowledges that this opportunity for a long-term incentive award
has been granted as an incentive to the Participant to remain employed by the
Company or one of its Subsidiaries and to exert his or her best efforts to
enhance the value of the Company and its Subsidiaries over the long-term.
Accordingly, the Participant agrees that if he or she (a) within 12 months of a
separation from service with the Company, or its Subsidiaries, accepts
employment with a competitor of the Company or one of its Subsidiaries or
otherwise engages in competition with the Company or one of its Subsidiaries, or
(b) within 36 months of a separation from service with the Company, or its
Subsidiaries, directly or indirectly, disrupts, damages, interferes or otherwise
acts against the interests of the Company or one of its Subsidiaries, including,
but not limited to, recruiting, soliciting or employing, or encouraging or
assisting the Participant's new employer or any other person or entity to
recruit, solicit or employ, any employee of the Company or one of its
Subsidiaries without the Company's prior written consent, which may withheld in
its sole discretion, or (c) within 36 months of a separation from service with
the Company, or its Subsidiaries, disparages, criticizes, or otherwise makes any
derogatory statements regarding the Company or its Subsidiaries or their
directors, officers or employees, or (d) discloses or otherwise uses
confidential information or material of the Company or one of its Subsidiaries,
each of these constituting a harmful action, then the Participant shall
immediately repay to the Company the full amount of the award received under the
terms and conditions of the 2008-2010 LTIP.  The 

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      Committee
shall have the right not to enforce the provisions of this paragraph with
respect to the Participant.

      


      Participant
agrees to be fully liable for any remedies available at law or in equity,
including, but not limited to, injunctive relief, for any breach of this above
described covenant, promise and agreement.  Participant agrees to
reimburse the Company for all costs and expenses, including attorneys’ fees,
incurred by the Company in enforcing the obligations of
Participant.  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 Participant’s breach,
non-compliance or violation of this Agreement or any other agreement that
Participant may have entered into with the Company.

      


      Tax
Withholding

      


      In the
event that the payout of the award is made in Class A Common Stock of the
Company, delivery of such stock shall not be made unless and until the
Participant, or, if applicable, the Participant’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 Participant’s applicable withholding and
other tax requirements, the Company may, in its sole discretion, withhold a
number of shares of Class A Common Stock having an aggregate Fair Market Value
on the payout 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
of the Securities Exchange Act of 1934, as amended.  Any cash payment
made under this Agreement shall be made net of any amounts required to be
withheld or paid with respect thereto (and with respect to any shares of Class A
Common Stock delivered therewith) under any applicable U.S. federal, state and
local and non-U.S. tax withholding and other tax requirements.

      


      Transferability

      


      Unless
otherwise provided in accordance with the provisions of the Plan, the award
granted pursuant to this Agreement may not be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated by the Participant, other than
by will or the laws of descent and distribution.  The term
“Participant” as used in this Agreement shall include any permitted
transferee.

      


      Interpretation;
Construction

      


      All
powers and authority conferred upon the Committee pursuant to any term of the
Plan or this 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 this
Agreement shall be final, binding and conclusive for all purposes and upon all
persons and, in the event of any judicial review 

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      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 of its
Subsidiaries, and shall not incur any liability for any action taken in good
faith in reliance upon the advice of counsel.

      


      Amendment

      


      The
Committee shall have the right to alter or amend the 2008-2010 LTIP and this
Agreement in its sole discretion, 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 Participant's rights under the 2008-2010
LTIP without the Participant's consent; provided, however, the Participant’s
consent shall not be required for any amendment that impairs the Participant’s
rights if the amendment is required by law. Subject to the preceding sentence,
any alteration or amendment to the 2008-2010 LTIP by the Committee shall, upon
adoption by the Committee, become and be binding and conclusive. The Company
shall give written notice to the Participant of any such alteration or amendment
of the 2008-2010 LTIP as promptly as practical after the
adoption.  This Agreement may also be amended in writing signed by
both an authorized representative of the Company and the
Participant.

      


      No Guarantee of Employment
or Future Incentive Awards

      


      Nothing
in the Plan or the 2008-2010 LTIP shall be deemed to:

      


      
        	
                (a)  

              	
                interfere
      with or limit in any way the right of the Company or any Subsidiary to
      terminate the Participant's employment at any time for any reason, with or
      without cause;

              


      

      


      
        	
                (b)  

              	
                confer
      upon the Participant any right to continue in the employ of the Company or
      any Subsidiary; or

              


      

      


      
        	
                (c)  

              	
                provide
      Participant 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.

              


      

      


      Internal Revenue Code
Section 409A

      


      The
parties intend for the awards under this Agreement to comply with the
requirements  of Code Section 409A and the Treasury regulations or
other guidance issued thereunder.  Notwithstanding any provision of
the Agreement to the contrary, the Agreement shall be interpreted and construed
consistent with this intent, provided that the Company shall not be required to
assume any increased economic burden.

      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      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 Participant
without the prior consent of the other party.

      


      Applicable
Law

      


      The
2008-2010 LTIP and 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 2008-2010 LTIP or this Agreement to the substantive law of
another jurisdiction.

      


      Jurisdiction

      


      The
Participant 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.  Participant further agrees that any action
related to, or arising out of, this Agreement shall only be brought by
Participant 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.

      


      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.

      


      Severability

      


      If any
provision of this Agreement, the 2008-2010 LTIP or the Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions 

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      of this
Agreement, the 2008-2010 LTIP or the Plan, and the Agreement, the 2008-2010 LTIP
and the Plan shall be construed and enforced as if such provision had not been
included.

      


      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.

      


      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.

      


      Please
sign and date this agreement to acknowledge that you have read the terms of this
agreement and understand that this 2008-2010 LTIP award is subject to the
provisions of the Plan and that you agree to the terms and conditions contained
herein and therein.

      


                          LEXMARK
INTERNATIONAL, INC.

      


      


         By:   _______________________________

      Jeri L. Isbell

      Vice President of Human
Resources

      


      


      EXECUTIVE:

      


         By:  (Name)

      


      ________________________________

                  
(sign your name)

      


      Date:  ________________________________

      


      


      


                 ________________________________

       (Beneficiary Name)

      



      
        
           


        

        
          7

          
            

          

        

        
           


        

      


      Attachment A – Long-Term
Incentive Plan Examples

      


      


      
        	
                Target
      Opportunity

              	
                Minimum

              	
                Target

              	
                Maximum

              
	
                Operating
      Income without Restructuring

              	
                18%

              	
                60%

              	
                120%

              
	
                Cash
      Cycle

              	
                12%

              	
                40%

              	
                80%

              


      

      


      Payout
Examples

      
 

      
        
          	 
      	
                  Example
      1

                	
                  Example
      2

                	
                  Example
      3

                	
                  Example
      4

                	
                  Example
      5

                	
                  Example
      61

                
	
                  Level of
      Attainment

                	 
      	 
      	 
      	 
      	 
      	 
      
	
                  Operating
      Income without Restructuring

                	
                  Target

                	
                  Minimum

                	
                  Maximum

                	
                  Minimum

                	
                  Minimum

                	
                  Below
      Minimum

                
	
                  Cash
      Cycle

                	
                  Target

                	
                  Minimum

                	
                  Maximum

                	
                  Target

                	
                  Below
      Minimum

                	
                  Below
      Minimum

                
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                  Level
      of Attainment (% of
      Target)

                	 
      	 
      	 
      	 
      	 
      
	
                  Operating
      Income without Restructuring

                	
                  60%

                	
                  18%

                	
                  120%

                	
                  18%

                	
                  18%

                	
                  0%

                
	
                  Cash
      Cycle

                	
                  40%

                	
                  12%

                	
                  80%

                	
                  40%

                	
                  0%

                	
                  0%

                
	
                  Aggregate
      Attainment

                	
                  100%

                	
                  30%

                	
                  200%

                	
                  58%

                	
                  18%

                	
                  0%

                
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
                  Target
      Award ($)

                	
                  $100,000

                	
                  $100,000

                	
                  $100,000

                	
                  $100,000

                	
                  $100,000

                	
                  $100,000

                
	
                  Aggregate
      Attainment (% of Target)

                	
                  100%

                	
                  30%

                	
                  200%

                	
                  58%

                	
                  18%

                	
                  0%

                
	
                   

                  Payout

                  (Target
      times Aggregate Attainment)

                	
                   

                  $100,000

                	
                   

                  $30,000

                	
                   

                  $200,000

                	
                   

                  $58,000

                	
                   

                  $18,000

                	
                   

                  $0

                


        




       

       

      1 Because
the two performance measures result in no funding, there would be an additional
calculation comparing the three-year average Return on Invested Capital for the
Company with that of its peer companies over the same-three year Performance
Period (2008 through 2010) and there exists the potential for funding the payout
at the Minimum level (30%).