Exhibit 10.1
GENERAL RELEASE AND COVENANT
NOT TO SUE
This GENERAL
RELEASE AND COVENANT NOT TO SUE ("Agreement") is made and entered
by and between Vincent J. Cole ("Employee"), an individual residing
at 4819 Faulkirk Lane, Lexington, KY 40515, and Lexmark
International, Inc., a corporation whose principal executive
offices are located at 740 West New Circle Road, Lexington, KY
40550 (hereinafter referred to as "Lexmark").
Subject to the
conditions and qualifications set forth below, and in consideration
of the mutual promises contained in this Agreement and in
consideration of (i) Lexmark’s paying to Employee
the amount of $420,000.00 less applicable withholdings, to be paid
to Employee in a lump sum; and (ii) Lexmark’s paying to
Employee a pro-rata share of the Annual Bonus, to be calculated as
follows. If the Employee’s Date of
Termination is prior to July 1, 2008 the pro rata share
of the annual bonus will be equal to the product of (1) the Target
Bonus and (2) a fraction equal to the number of full months in such
year prior to the Date of Termination over 12. If the
Employee’s Date of Termination is on or after July 1, 2008,
the pro rata share of the annual bonus 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 the 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 will be paid to Employee
within 2 ½ months of the close of the performance year in
respect of which the pro rata share of the Annual Bonus is
payable; (iii) Lexmark’s providing to
Employee access to continued medical (including vision) and dental
coverage at the then-current and applicable active
“employee” contribution rate through June 30, 2009 or
until such coverage is made available to Employee by a subsequent
employer, whichever occurs first, such coverage to be provided
under Lexmark’s benefits plans (via the Lexmark COBRA
administrator) as such plans are amended by Lexmark from time to
time as permitted by plan documentation and applicable law,
provided that Employee pays timely the then-current and applicable
"employee" contribution rate; and (iv) Lexmark’s providing
Employee with reimbursement of up to $25,000 (actual expenses
incurred to be grossed up for tax purposes) for any career
transition assistance service expenses incurred through June 30,
2009, to be paid by Lexmark to Employee upon receipt by Lexmark of
appropriate invoicing, all in accordance with Attachment A to this
Agreement, which is incorporated by reference herein or payment of
up to $25,000 directly to an outplacement provider (assumed to be
taxable to the employee and actual expenses incurred also grossed
up for tax purposes); it is agreed as follows:
1. Employee’s last date of
employment with Lexmark shall be June 27, 2008 (“Departure
Date”).
2. This Agreement is for the benefit
of Lexmark, its divisions, subsidiaries, affiliates, owners,
stockholders, successors, assigns, agents, directors, officers,
employees, suppliers, representatives, attorneys and predecessors,
and any and all
persons acting
by, through, under or in concert with any of the foregoing
(collectively, "Lexmark Releasees").
3. Employee shall not disclose to any
person or use any confidential or proprietary information,
knowledge or data that is not theretofore publicly known and in the
public domain, or obtained by Employee while in the employ of
Lexmark with respect to Lexmark or any of its subsidiaries or
affiliates, or with respect to any products, improvements,
formulas, designs, processes, customers, methods of sales,
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 Lexmark or any of its subsidiaries or
affiliates, except as may be required by law or by a judge in a
judicial proceeding or by an authorized government inquiry or
investigation.
4. Employee shall deliver to Lexmark
on or before the date on which Employee executes this Agreement all
non-personal documents and data of any nature pertaining to
Employee’s work with Lexmark, and Employee shall not take
from Lexmark or retain any such documents or data of any
description or any reproduction thereof, or any documents
containing or pertaining to any Lexmark confidential or proprietary
information, knowledge or data. Employee represents that
Employee has returned to Lexmark all such documents and data as
well as all Lexmark property and assets in Employee's possession,
including but not limited to a laptop (except Employee’s cell
phone which he is permitted to keep and assume financial
responsibility for). Employee represents that Employee
has no outstanding balance under his/her Lexmark Corporate American
Express card. Employee understands that the cost of
replacing any unreturned property and assets (whether or not
actually replaced) and any amounts that Employee owes to Lexmark or
any third party on behalf of Lexmark may be deducted from any form
of compensation which may be due to the Employee from Lexmark
(including but not limited to wages, salary, bonuses, commissions,
severance pay, vacation pay, fringe benefits, expense
reimbursements and the proceeds resulting from any form of equity
compensation, including but not limited to any unrealized option
gains not otherwise forfeited due to the circumstances of the
termination of Employee’s employment) and Employee hereby
consents to such deduction.
5. Employee agrees that Employee
shall not disparage any Lexmark Releasee or any Lexmark product or
service.
6. Employee represents that Employee
has not filed with any local, state or federal agency or court, or
assigned or transferred to any person or entity, any claims,
complaints, charges or actions of any nature against any Lexmark
Releasee or any interest therein.
7. Employee hereby irrevocably and
unconditionally releases, waives, acquits, and forever discharges
each of the Lexmark Releasees from any and all charges, complaints,
claims, liabilities, obligations, promises, representations,
inducements, agreements, controversies, damages, actions, causes of
action, suits, rights, demands,
costs, losses,
debts and expenses (including attorney's fees and costs actually
incurred) of any nature whatsoever, known or unknown, fixed or
contingent (each a “Claim”), including, but not limited
to, Claims arising under the Age Discrimination in Employment Act
of 1967, as amended, Title VII of the Civil Rights Act of 1964, as
amended, the Employee Retirement Income Security Act of 1974, as
amended, the Americans With Disabilities Act of 1990, as amended,
the Kentucky Civil Rights Act, as amended, and any other federal,
state or local law which addresses employee benefit matters or
addresses or prohibits discrimination in employment, and Claims
arising under any stock incentive awards
