Lexmark 2012 Annual Report Download - page 167

3.3 Release. Prior to, and as a condition precedent to, the receipt of any benefits under Section 3.1, Executive, or a representative of Executive, shall
execute a release (the “Release”) in the form attached hereto as EXHIBIT A. Such Release shall specifically relate to all of Executive’s rights and claims in
existence at the time of such execution. If Executive is over 40 years of age at the time of the execution of the Release, it is understood that Executive has a certain
period to consider whether to execute such Release, and Executive may revoke such Release within seven (7) days after execution, provided, however, that the
Release must be fully effective, and not subject to revocation, on or before the sixtieth (60 ) day following the date of Executive’s separation from service. In the
event Executive does not execute such Release within the applicable period, or if Executive revokes such Release within the subsequent seven (7) day period,
none of the aforesaid benefits shall be payable under this Agreement and this Agreement shall be null and void.
4. NON-COMPETE; NON-SOLICITATION
4.1 Non-Compete and Non-Solicitation. Executive hereby acknowledges and agrees to be bound by the terms of the Non-Disclosure and Non-
Competition Agreement by and between Executive, the Company and Lexmark during his employment with the Company, and for such period of time
following the termination of Executive’s employment with the Company, as specified in that agreement.
5. MISCELLANEOUS
5.1 Definitions. For purposes of the Agreement, the following terms are defined as follows:
(a) “Board” means the Board of Directors of Lexmark.
(b) “Cause” means (i) the willful failure by the Executive to perform substantially the Executive’s duties with the Company or Lexmark (other than
any such failure due to physical or mental illness) after a demand for substantial performance is delivered to the Executive by the Chief Executive Officer of
[Lexmark][the Company], which notice identifies the manner in which the Chief Executive Officer of [Lexmark][the Company] believes that the Executive
has not substantially performed his duties; (ii) the Executive engaging in willful and serious misconduct that is injurious to the Company, Lexmark or any of
their affiliates; (iii) the Executive making a substantial, abusive use of alcohol, drugs, or similar substances, and such abuse in the Company and/or
Lexmark’s judgment has affected his ability to conduct the business of the Company in a proper and prudent manner; (iv) the Executive’s conviction of, or
entering a plea of nolo contendere to, a crime that constitutes a felony, which in the Chief Executive Officer of [Lexmark’s][the Company’s] reasonable good
faith judgment has the effect of materially injuring the reputation or business of the Company; or (v) the willful and material breach by the Executive of any of
his obligations hereunder and Executive’s failure to cure such breach to the reasonable satisfaction of Lexmark within a reasonable period, but not to exceed
sixty (60) days, following Lexmark’s notice to Executive of such breach, which notice describes such breach in particularity, or the willful and material
breach by the Executive of any written covenant or agreement with the Company or Lexmark or any of their affiliates not to disclose any information
pertaining to the Company or Lexmark or any of their affiliates or not to compete or interfere with the Company or Lexmark or any of their affiliates.
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