EXHIBIT 10.87
FORM OF FIRST AMENDMENT TO
EXECUTIVE RETENTION AGREEMENT
This First Amendment to Executive Retention Agreement (the "First
Amendment") is made and entered into as of November 1, 2001, by and between
Maxtor Corporation, a Delaware corporation (the "Company"), and
_____________________ ("Executive").
RECITALS
A. Executive and the Company have entered into a Retention Agreement dated May
29, 1998 setting forth certain incentives for Executive to remain employed
with the Company.
B. Executive and the Company also have entered into an Executive Retention
Agreement (the "Agreement") dated as of November 19, 1999 providing for a
loan by the Company to Executive (the "Loan") and for other arrangements
between the Company and Executive. The Loan is subject to the terms and
conditions of a promissory note (the "Promissory Note") executed by
Executive in favor of the Company and attached to the Agreement as Exhibit
1.
C. Executive and the Company desire to amend the Agreement by amending and
restating the Promissory Note.
NOW, THEREFORE, in consideration of Employee's continued employment by the
Company and other good and valuation consideration, the mutual receipt of which
is acknowledged by the parties hereto, the parties hereby agree as follows:
1. Amended and Restated Promissory Note. The Amended and Restated
Promissory Note attached hereto as Exhibit 1 shall be attached to the Agreement
as a new Exhibit 1 thereto and all references in the Agreement to the Promissory
Note shall be to said Amended and Restated Promissory Note.
2. Effect of First Amendment. Except as amended by this First Amendment,
the Agreement shall remain in full force and effect.
3. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first above written.
MAXTOR CORPORATION
By:
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Xxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
EXECUTIVE:
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EXHIBIT 1
FORM OF AMENDED AND RESTATED
PROMISSORY NOTE
$_________ Milpitas, California
November 19, 1999
The undersigned, _______________ ("Borrower"), hereby unconditionally promises
to pay to the order of Maxtor Corporation, a Delaware corporation (the
"Lender"), the sum of __________________ Dollars ($________________) plus
interest, in accordance with the terms of the Executive Retention Agreement by
and between Lender and Borrower effective November 19, 1999, as amended (the
"November 1999 Agreement").
The outstanding principal balance of this Note, together with all accrued and
unpaid interest hereon, shall be due and payable on November 18, 2002, or upon
termination for "Cause" or voluntary termination of employment for reasons other
than "Good Reason" as those terms are defined in the November 1999 Agreement.
Interest shall accrue on unpaid principal from the date hereof until maturity at
a rate of _____% compounded annually; provided, however, that commencing
November 1, 2001 and from time to time such rate shall be reduced (but not
increased) for the then remaining term of this Note if and to the extent that
the short-term applicable federal rate (within the meaning of Section 1274(d) of
the Internal Revenue Code of 1986, as amended, with annual compounding) for any
month is less than the then interest rate under this Note.
This Note may be prepaid, in whole or in part, at any time or from time to time,
without penalty or premium. Any prepayment of principal must be accompanied by
then accrued but unpaid interest. Interest shall cease to accrue on amounts of
principal so prepaid. Any prepayment of interest shall include all interest
accrued to the date of payment, but need not include any payment of principal.
All payments of principal or interest shall be made in lawful money of the
United States of America to the Lender at the offices of the Lender, or at such
other address as the Lender shall specify to Borrower in writing. Any payment
shall be deemed made upon receipt by Lender.
Upon payment in full of all principal and interest payable hereunder, this Note
shall be surrendered to Borrower for cancellation.
Borrower waives its rights to impose any defense (other than payment), set-off,
counterclaim or cross-claim in any action brought on this Note. Borrower waives
presentment, demand for performance, notice of performance, protest, notice of
protest, and notice of dishonor.
If the indebtedness represented by this Note or any part hereof is collected at
law or in equity or in bankruptcy, receivership or other judicial proceedings,
or if this Note is placed in the hands of attorneys for collection after
default, Borrower agrees to pay, in addition to the principal and interest
payable hereon, reasonable attorneys' and collection fees and costs.
This Note is being delivered in and shall be construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year first
above written.
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