RESTRICTED STOCK UNIT AWARD AGREEMENT pursuant to LEXMARK INTERNATIONAL, INC. STOCK INCENTIVE PLAN
Exhibit
10.2
pursuant
to
LEXMARK
INTERNATIONAL, INC.
STOCK
INCENTIVE PLAN
This
RESTRICTED STOCK UNIT AWARD AGREEMENT (the "Agreement") between Lexmark
International, Inc., a Delaware corporation (the "Company"), and the person
specified on the signature page hereof (the "Grantee") is entered into as of
[Date] (the "Grant Date") pursuant to the Lexmark International, Inc. Stock
Incentive Plan, as the same may be amended from time to time (the "Plan").
Capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Plan.
WHEREAS,
the Committee has determined that it would be to the advantage and in the
interest of the Company to grant the restricted stock unit award provided for
herein to the Grantee as an inducement to the Grantee to remain in the service
of the Company and the Subsidiaries and as an incentive to the Grantee to devote
his or her best efforts and dedication to the performance of such services
and
to maximize shareholder value; and
WHEREAS,
the Grantee desires to accept from the Company the grant of the restricted
stock
units 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:
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1.
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Restricted
Stock Unit Award.
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(a)
Restricted
Stock Unit Award.
The
Company hereby grants to the Grantee, effective as of the date hereof and on
the
terms and conditions herein, the number of restricted stock units set forth
on
the signature page hereof, each representing the Grantee's right to receive
one
share of Common Stock at the time or times provided for in Section 3 hereof,
subject to the terms and conditions described herein (the "Restricted Stock
Units" or "Units").
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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 Grantee hereby acknowledges
that
copies 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.
(c)
Establishment
of Account.
No
shares of Common Stock will be issued on the date of grant of the Restricted
Stock Units and the Company shall not be required to set aside a fund for the
payment of any such Units. The Company will establish a separate account for
the
Grantee and will record in such account the number of Restricted Stock Units
awarded to the Grantee and, to the extent applicable, the Dividend Equivalents
provided for in Section 3(b) hereof.
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Forfeiture.
In accepting this grant of Restricted Stock Units, the Grantee
acknowledges that the Restricted Stock Units have been granted as
an
incentive to the Grantee 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
Grantee
agrees that if he or she (i) within 12 months following termination
of
employment with the Company or any Subsidiary, accepts employment
with a
competitor of the Company or any Subsidiary or otherwise engages
in
competition with the Company or any Subsidiary, (ii) within 36 months
following termination of employment with the Company or any Subsidiary,
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, (iii) within 36 months following termination of
employment with the Company, or any Subsidiary, disparages, criticizes,
or
otherwise makes any derogatory statements regarding the Company or
any
Subsidiary or their directors, officers or employees, or (iv) discloses
or
otherwise misuses confidential information or material of the Company
or
any Subsidiary, each of these constituting a harmful action, then
any
unvested portion of this grant of Restricted Stock Units shall be
canceled
immediately (unless canceled earlier by operation of another term
of this
Agreement) and the Grantee shall immediately repay to the Company
an
amount equal to the value of the Restricted Stock Units (represented
by
the closing market price on the applicable Vesting Dates (as defined
below) multiplied by the number of Restricted Stock Units vested
on such
Vesting Dates, without regard to any subsequent market price decrease
or
increase) realized by Grantee from
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2
the
vesting of any Restricted Stock Units within 18 months preceding the earlier
of
(w) the commitment of any such harmful action and (x) the Grantee'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 Grantee
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 Grantee from
time
to time (including amounts owed to the Grantee as wages or other compensation,
fringe benefits or vacation pay, as well as any other amounts owed to the
Grantee by the Company or any of its Subsidiaries), the amounts the Grantee
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 Grantee.
Grantee
agrees to be fully liable for any breach of this above described covenant,
promise and agreement. Grantee agrees to reimburse the Company for all costs
and
expenses, including attorneys’ fees, incurred by the Company in enforcing the
obligations of Grantee. 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 Grantee’s breach,
non-compliance or violation of any other agreement that Grantee may have entered
into with the Company.
2.
Vesting
of Restricted Stock Units.
| (a) |
Vesting.
The Restricted Stock Units will become vested in [number of installments]
installments (each a "Vesting Date"), as
follows:
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[Vesting
Schedule]
subject
in the case of each such installment to the Grantee's continuous employment
with
the Company or a Subsidiary from the date hereof to the
applicable Vesting
Date.
(b)
Acceleration.
The
Committee may, in its discretion, accelerate the vesting of all or any portion
of the Restricted Stock Units or waive any conditions to the vesting
of
such
Restricted Stock Units.
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(c)
Termination
of Employment.
In the
event of the Grantee's termination of employment with the Company and its
Subsidiaries for any reason, the Grantee shall
immediately forfeit all rights with respect to any Restricted Stock Units
(and Dividend Equivalents) which have not yet vested in accordance with the
provisions of
Section 2(a) of this Agreement.
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3.
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Payment
of Restricted Stock Unit Award.
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(a)
Payment.
On, or
as soon as reasonably practicable after, a Vesting Date, subject to Section
4
hereof, the Company shall direct its stock transfer agent to make (or to cause
to be made) an appropriate book entry in the Company's stock transfer books
and
records reflecting the transfer to the Grantee, and the Grantee's ownership,
of
one share of Common Stock for each Restricted Stock Unit that shall have become
vested on such Vesting Date. Upon the Grantee's request, subject to Section
4
hereof, the Company shall deliver to the Grantee a stock certificate registered
in the Grantee's name and representing such number of shares of Common Stock
free and clear of all restrictions except any that may be imposed by law. No
payment will be required to be made by the Grantee upon the delivery of such
shares of Common Stock, except as otherwise provided in Section 4 of the
Agreement.
(b)
Dividend Equivalents.
Unless
otherwise determined by the Committee, during the period prior to a Vesting
Date, the Company will credit to the account of the Grantee an amount equal
to
any dividends paid by the Company with respect to the number of shares of Common
Stock corresponding to the number of Restricted Stock Units ("Dividend
Equivalents"). Dividend Equivalents in respect of Restricted Stock Units that
shall have become vested on the applicable Vesting Date shall be payable to
the
Grantee on such Vesting Date.
(c) Restrictions
on Sale upon Public Offering.
The
Grantee hereby agrees that, notwithstanding the vesting of the Restricted Stock
Units pursuant to Section 2(a) of
this
Agreement or the transfer of the shares of Common Stock covered thereby to
the
Grantee pursuant to Section 3(a) hereof, the Grantee will not effect any
public
sale
or
distribution of any of such shares of Common Stock during the 20 day period
prior to and the 180 days following the effective date of any
registration
statement
hereinafter filed by the Company under the Securities Act of 1933, as amended,
with respect to any underwritten public offering of any shares of
the
Company's
capital stock (other than as part of such underwritten public
offering).
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4.
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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 unless and until the Grantee, or, if applicable, the
Grantee's
beneficiary or estate, has made appropriate arrangements for the
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4
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 Grantee's applicable withholding
and
other tax requirements, the Company may, in its sole discretion, (i) withhold
a
number of shares of Common Stock having an aggregate Fair Market Value on the
Vesting Date equal to the applicable amount of such withholding and other tax
requirements or (ii) require the Grantee to sell a number of shares of Common
Stock having at least a value sufficient to meet the applicable amount of such
withholding and other tax requirements to account for rounding and market
fluctuations, 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. Shares required to be sold
to satisfy the Grantee’s applicable withholding and other tax requirements may
be sold as part of a block trade with the Grantee receiving an average price.
Any cash payment made pursuant to Section 3 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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5.
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Transferability.
Unless otherwise provided in accordance with the provisions of the
Plan,
the Restricted Stock Units may not be sold, transferred, pledged,
assigned
or otherwise alienated or hypothecated by the Grantee, other than
by will
or the laws of descent and distribution. The term "Grantee" as used
in
this Agreement shall include any permitted transferee of the restricted
stock units.
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6.
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Adjustment
in Capitalization.
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(a)
The aggregate number of shares of Common Stock covered by the Restricted Stock
Units granted hereunder shall be proportionately adjusted to reflect, as deemed
equitable and appropriate by the Committee, an Adjustment
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 or credited to the account of the Grantee with respect to
the
Restricted Stock Units 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 transfer, as are applicable to the Restricted Stock Units with respect to
which such shares, cash or other property is received or so credited and
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stock certificate(s), if any, representing or evidencing any shares of stock
or
other property so received shall be legended as appropriate.
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7.
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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 Grantee (or the Grantee'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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8.
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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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9.
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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 Grantee's rights under this
Agreement without the Grantee'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 Grantee of any such alteration or amendment
of
this Agreement as promptly as practicable after the adoption thereof.
This
Agreement may also be amended by a writing signed by both the Company
and
the Grantee.
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10.
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No
Rights as a Stockholder.
The Grantee shall have no rights as a stockholder with respect to
the
Restricted Stock Units prior to the date as of which the shares of
Common
Stock covered thereby are transferred to the Grantee in accordance
with
Section 3(a) hereof.
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11.
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
Grantee’s employment at any time and for any reason, with or without
cause;
(b)
confer
upon Grantee any right to continue in the employ of the Company or any
Subsidiary; and
(c)
provide
Grantee 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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12.
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Miscellaneous.
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(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 Grantee, as the case may be, at the
following addresses or to such other address as the Company or the Grantee,
as
the case may be, shall specify by notice to the others delivered in accordance
with this Section 12(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
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000
Xxxx Xxx Xxxxxx Xxxx
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Xxxxxxxxx,
XX 00000
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Attention:
Secretary
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(ii)
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if
to the Grantee, to the Grantee 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.
(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 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
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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 Grantee 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
Grantee 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. Grantee further agrees that any action related
to, or arising out of, this Agreement shall
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only be brought by Grantee 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.
(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 9
hereof, the Company intends to amend this Agreement, and hereby reserves the
right to do so without the Grantee’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.
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IN
WITNESS WHEREOF, the Company and the Grantee have executed this Agreement as
of
the date first above written.
LEXMARK
INTERNATIONAL, INC.
Name:
Xxxx X. Xxxxxxxxxx
Title:
Vice President of Human
Resources
GRANTEE:
By:
______________________________
(Sign
Here)
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Name:
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ID#:
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Address
of the Grantee:
______________________________
Beneficiary
Name
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Number
of Restricted Stock Units:
Granted
on
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10
