Lexmark 2012 Annual Report Download - page 183

The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the
Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by
the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is
payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an
opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the
accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.
(e) Release. Prior to, and as a condition precedent to, the receipt of any benefits under this Section 3, 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
against the Company and Lexmark in existence at the time of such execution. 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 Termination, in the prescribed form. In the event
Executive does not provide an effective Release within the 60-day period, none of the benefits described in this Section 3 shall be payable under this
Agreement and the provisions of Section 3 of this Agreement shall he null and void.
(f) Employment Agreement Severance Benefits . To the extent that severance benefits become payable to Executive upon termination of Executive’s
employment with the Company pursuant to the Employment Agreement, and such amounts are greater than the amounts that would become payable to
Executive under this Agreement, no severance benefits shall be paid pursuant to this Agreement.
4. Status; Exclusivity of Rights
(a) Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any Company Plans.
(b) This Agreement shall supersede all prior, concurrent, and/or contemporaneous arrangements, whether written or oral, regarding the subject matter of this
Agreement; provided that this Agreement is not intended to, and shall not affect, limit or terminate Executive’s rights and obligations under the
Employment Agreement or Executive’s obligations under the Company’s Statement of Employee’s Obligations and Agreement Involving Proprietary
Information and Inventions (the “Inventions Agreement”).
5. Set-Off; Mitigation. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off that the Company may have against Executive or others, except for any set-off as a result of a breach or
threatened breach by Executive of any of the provisions
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