EXHIBIT 10.1
MAXTOR CORPORATION
AMENDMENT OF
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Amendment of Restricted Stock Unit Award Agreement (the "AMENDMENT")
is made by and between Maxtor Corporation (the "COMPANY") and ____________ (the
"Participant").
WHEREAS, the Company granted to the Participant on June 10, 2002 (the
"GRANT DATE") an award of _____________________________Restricted Stock Units
(the "AWARD") pursuant to the Maxtor Corporation Restricted Stock Unit Plan (the
"PLAN") and a Restricted Stock Unit Award Agreement entered into between the
Company and the Participant (the "AWARD AGREEMENT"); and
WHEREAS, the Company and the Participant now wish to amend the Award
Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Company and the Participant hereby agree that the terms and conditions of
the Award as set forth in the Award Agreement and the Plan shall be amended as
set forth below. Unless otherwise defined by this Amendment, capitalized terms
contained herein shall have the meanings assigned to them by the Plan and the
Award Agreement.
1. DEFERRAL OF CERTAIN STOCK PRICE PERFORMANCE ACCELERATED VESTING.
Provided that the Participant has not made an election pursuant to Section
5.1(c) of the Plan to decline accelerated vesting with respect to a Stock Price
Performance Measurement Period ending on or before the last Trading Day of the
fiscal year of the Company ending in calendar year 2003 (a "2003 PERFORMANCE
PERIOD"), then, notwithstanding any provision contained in the Plan or the Award
Agreement to the contrary, any accelerated vesting of the Award with respect to
the attainment of a Stock Price Performance Goal within a 2003 Performance
Period that would otherwise be determined pursuant to Section 5.1(b) of the Plan
shall instead be determined as follows:
Fifty percent (50%) of the Restricted Stock Units subject to the
Award shall vest on the date (the "AMENDED ACCELERATED VESTING DATE")
which is either (a) April 9, 2004 or (b) the first date following the 2003
Performance Period on which the Company makes payments of bonuses pursuant
to the Company's Annual Incentive Plan, at the discretion of the
Compensation Committee of the Maxtor Corporation board of directors;
provided, however, that the Award shall vest in full in accordance with
Section 5.1(d) of the Plan in the event of a Change in Control.
2. EFFECT OF TERMINATION OF SERVICE. As it pertains to the stock
price performance accelerated vesting of the Award, if any, that is
governed by paragraph 1 above, Section 5.2 of the Plan shall be modified
as follows:
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(a) RETIREMENT, DEATH OR DISABILITY. If the Participant's Service
terminates because of the Retirement, death or Disability of the Participant
prior to the Amended Accelerated Vesting Date, then, the vesting of the Award
that would otherwise be determined pursuant to Section 5.2(a) of the Plan in
accordance with Section 5.1(b) of the Plan shall, to the extent of the fifty
percent stock price performance accelerated vesting, be determined in accordance
with paragraph 1 above.
(b) INVOLUNTARY TERMINATION. In addition to the benefit provided by
Section 5.2(b) of the Plan, if the Participant's Service is involuntarily
terminated by the Company for any reason or no reason prior to the Amended
Accelerated Vesting Date, then the fifty percent stock price performance
accelerated vesting of the Award determined pursuant to paragraph 1 shall be
effective as of the date of the Participant's termination of Service.
(c) RESIGNATION FOR GOOD REASON. If the Participant resigns from
Service for Good Reason (as defined below) prior to the Amended Accelerated
Vesting Date, other than in connection with a Change in Control, then, to the
extent that paragraph 1 above applies, the fifty percent stock price performance
accelerated vesting of the Award determined pursuant to paragraph 1 shall be
effective as of the date of such resignation from Service. For the purposes of
this paragraph, "GOOD REASON" shall mean the occurrence of any of the following
conditions, without the Participant's express written consent, which
condition(s) remain(s) in effect twenty (20) days after written notice to the
Board from the Participant of such condition(s):
(i) a material decrease in (A) the sum of the Participant's
annual salary and targeted annual incentive bonus or (B) the Participant's
employee benefits;
(ii) a demotion, a material reduction in the Participant's
position, responsibilities or duties, or a material, adverse change in the
Participant's substantive functional responsibilities or duties;
(iii) a relocation of the Participant's work place for the
Company to a location more than one hundred (100) miles from the location of the
Participant's work place immediately prior to such relocation;
(iv) any material breach of this Amendment by the Company.
3. SETTLEMENT OF AWARD. As it pertains to the stock price performance
accelerated vesting of the Award, if any, that is governed by paragraph 1 above,
Section 5.3 of the Plan shall be modified to provide that the Company shall pay
to the Participant in cash within seven (7) days from the vesting date
determined in accordance with this Amendment the amounts determined in
accordance with paragraphs 4 and 5 below, subject to the withholding of taxes
determined in accordance with the Plan.
4. VALUE OF VESTED RESTRICTED STOCK UNITS. As it pertains to the stock
price performance accelerated vesting of the Award, if any, that is governed by
paragraph 1 above, Section 5.4 of the Plan shall be modified as follows:
2
(a) STOCK PRICE PERFORMANCE ACCELERATED VESTING. The value of each
Restricted Stock Unit whose vesting is accelerated pursuant to paragraph 1 above
shall be the Fair Market Value per Share on the last Trading Day of the 2003
Performance Period.
(b) RETIREMENT, DEATH, DISABILITY, INVOLUNTARY TERMINATION,
RESIGNATION FOR GOOD REASON. The value of each Restricted Stock Unit whose
vesting is determined upon a termination of Service of the Participant described
in paragraph 2 above with reference to the stock price performance accelerated
vesting of the Award governed by paragraph 1 above shall, to such extent, be
determined in accordance with paragraph 4(a) above.
5. INTEREST. In addition to the value of each Restricted Stock Unit whose
vesting is deferred pursuant to this Amendment, the Company shall pay to the
Participant as additional consideration interest in the amount of 1.52 per cent
per annum of such value from the last Trading Day of the 2003 Performance Period
to the date of settlement pursuant to paragraph 3 above.
6. CONTINUATION OF OTHER TERMS. Except as set forth in this Amendment, all
other terms and conditions of the Award Agreement shall remain in full force and
effect.
IN WITNESS HEREOF, the parties have executed this Amendment as of this 2nd
day of September, 2003.
MAXTOR CORPORATION PARTICIPANT
By:
----------------------------------------- -------------------------------
Xxxxx X. Xxxxxxx Signature
Its: Senior Vice-President, General Counsel
and Secretary
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MAXTOR CORPORATION
AMENDMENT OF
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Amendment of Restricted Stock Unit Award Agreement (the
"AMENDMENT") is made by and between Maxtor Corporation (the "COMPANY") and ____
________ (the "PARTICIPANT").
WHEREAS, the Company granted to the Participant on February 24, 2003
(the "GRANT DATE") an award of _______ Restricted Stock Units (the "AWARD")
pursuant to the Maxtor Corporation Restricted Stock Unit Plan (the "PLAN") and a
Restricted Stock Unit Award Agreement entered into between the Company and the
Participant (the "AWARD AGREEMENT"); and
WHEREAS, the Company and the Participant now wish to amend the Award
Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Company and the Participant hereby agree that the terms and
conditions of the Award as set forth in the Award Agreement and the Plan shall
be amended as set forth below. Unless otherwise defined by this Amendment,
capitalized terms contained herein shall have the meanings assigned to them by
the Plan and the Award Agreement.
1. DEFERRAL OF CERTAIN STOCK PRICE PERFORMANCE ACCELERATED
VESTING. Provided that the Participant has not made an election pursuant to
Section 5.1(c) of the Plan to decline accelerated vesting with respect to a
Stock Price Performance Measurement Period ending on or before the last Trading
Day of the fiscal year of the Company ending in calendar year 2003 (a "2003
PERFORMANCE PERIOD"), then, notwithstanding any provision contained in the Plan
or the Award Agreement to the contrary, any accelerated vesting of the Award
with respect to the attainment of a Stock Price Performance Goal within a 2003
Performance Period that would otherwise be determined pursuant to Section 5.1(b)
of the Plan shall instead be determined as follows:
Fifty percent (50%) of the Restricted Stock Units subject to
the Award shall vest at the discretion of the Company's Compensation
Committee on the date (the "AMENDED ACCELERATED VESTING DATE") which is
the first to occur of (a) April 9, 2004 or (b) the first date following
the 2003 Performance Period on which the Company makes payments of
bonuses pursuant to the Company's Annual Incentive Plan, at the
discretion of the Company's Compensation Committee; provided, however,
that the Award shall vest in full in accordance with Section 5.1(d) of
the Plan in the event of a Change in Control.
2. EFFECT OF TERMINATION OF SERVICE. As it pertains to the stock
price performance accelerated vesting of the Award, if any, that is governed by
paragraph 1 above, Section 5.2 of the Plan shall be modified as follows:
1
(a) RETIREMENT, DEATH OR DISABILITY. If the Participant's
Service terminates because of the Retirement, death or Disability of the
Participant prior to the Amended Accelerated Vesting Date, then, the vesting of
the Award that would otherwise be determined pursuant to Section 5.2(a) of the
Plan in accordance with Section 5.1(b) of the Plan shall, to the extent of the
fifty percent stock price performance accelerated vesting, be determined in
accordance with paragraph 1 above.
(b) INVOLUNTARY TERMINATION. In addition to the benefit
provided by Section 5.2(b) of the Plan, if the Participant's Service is
involuntarily terminated by the Company for any reason or no reason prior to the
Amended Accelerated Vesting Date, then the fifty percent stock price performance
accelerated vesting of the Award determined pursuant to paragraph 1 shall be
effective as of the date of the Participant's termination of Service.
(c) RESIGNATION FOR GOOD REASON. If the Participant
resigns from Service for Good Reason (as defined below) prior to the Amended
Accelerated Vesting Date, other than in connection with a Change in Control,
then, to the extent that paragraph 1 above applies, the fifty percent stock
price performance accelerated vesting of the Award determined pursuant to
paragraph 1 shall be effective as of the date of such resignation from Service.
For the purposes of this paragraph, "GOOD REASON" shall mean the occurrence of
any of the following conditions, without the Participant's express written
consent, which condition(s) remain(s) in effect twenty (20) days after written
notice to the Board from the Participant of such condition(s):
(i) a material decrease in (A) the sum of the
Participant's annual salary and targeted annual incentive bonus or (B) the
Participant's employee benefits;
(ii) a demotion, a material reduction in the
Participant's position, responsibilities or duties, or a material, adverse
change in the Participant's substantive functional responsibilities or duties;
(iii) a relocation of the Participant's work place
for the Company to a location more than one hundred (100) miles from the
location of the Participant's work place immediately prior to such relocation;
(iv) any material breach of this Amendment by the
Company.
3. SETTLEMENT OF AWARD. As it pertains to the stock price
performance accelerated vesting of the Award, if any, that is governed by
paragraph 1 above, Section 5.3 of the Plan shall be modified to provide that the
Company shall pay to the Participant in cash within seven (7) days from the
vesting date determined in accordance with this Amendment the amounts determined
in accordance with paragraphs 4 and 5 below, subject to the withholding of taxes
determined in accordance with the Plan.
4. VALUE OF VESTED RESTRICTED STOCK UNITS. As it pertains to the
stock price performance accelerated vesting of the Award, if any, that is
governed by paragraph 1 above, Section 5.4 of the Plan shall be modified as
follows:
2
(a) STOCK PRICE PERFORMANCE ACCELERATED VESTING. The
value of each Restricted Stock Unit whose vesting is accelerated pursuant to
paragraph 1 above shall be the Fair Market Value per Share on the last Trading
Day of the 2003 Performance Period.
(b) RETIREMENT, DEATH, DISABILITY, INVOLUNTARY
TERMINATION, RESIGNATION FOR GOOD REASON. The value of each Restricted Stock
Unit whose vesting is determined upon a termination of Service of the
Participant described in paragraph 2 above with reference to the stock price
performance accelerated vesting of the Award governed by paragraph 1 above
shall, to such extent, be determined in accordance with paragraph 4(a) above.
5. INTEREST. In addition to the value of each Restricted Stock
Unit whose vesting is deferred pursuant to this Amendment, the Company shall pay
to the Participant as additional consideration interest in the amount of 1.52
per cent per annum of such value from the last Trading Day of the 2003
Performance Period to the date of settlement pursuant to paragraph 3 above.
6. CONTINUATION OF OTHER TERMS. Except as set forth in this
Amendment, all other terms and conditions of the Award Agreement shall remain in
full force and effect.
IN WITNESS HEREOF, the parties have executed this Amendment as of this
2nd day of September, 2003.
MAXTOR CORPORATION PARTICIPANT
By:________________________________ _________________________________
Xxxxx X. Xxxxxxx Signature
Its: Senior Vice-President, General
Counsel and Secretary
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