SEAGATE TECHNOLOGY, INC.
MANAGEMENT RETENTION AGREEMENT
This Management Retention Agreement (the "AGREEMENT") is made and entered
into by and between Xxxxxxx X. Xxxxx (the "EMPLOYEE") and Seagate Technology,
Inc. (the "COMPANY"), effective as of November 12, 1998, (the "EFFECTIVE DATE").
RECITALS
A. It is expected that the Company from time to time will consider the
possibility of an acquisition by another company or other change of control. The
Board of Directors of the Company (the "Board") recognizes that such
consideration can be a distraction to the Employee and can cause the Employee to
consider alternative employment opportunities. The Board has determined that it
is in the best interests of the Company and its stockholders to assure that the
Company will have the continued dedication and objectivity of the Employee,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company.
B. The Board believes that it is in the best interests of the Company and
its stock-holders to provide the Employee with an incentive to continue his
employment and to motivate the Employee to maximize the value of the Company
upon a Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide the Employee with
certain severance benefits upon Employee's termination of employment following a
Change of Control which provides the Employee with enhanced financial security
and provides incentive and encouragement to the Employee to remain with the
Company notwithstanding the possibility of a Change of Control.
D. Certain capitalized terms used in the Agreement are defined in Section 6
below.
The parties hereto agree as follows:
1 . Term of Agreement. This Agreement shall terminate upon the date that
all obligations of the parties hereto with respect to this Agreement have been
satisfied.
2. At-Will Employment. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason,
including (without limitation) any termination prior to a Change of Control, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
practices or pursuant to other agreements with the Company.
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3. Severance Benefits.
(a) Involuntary Termination Other than for Cause; Voluntary
Termination for Good Reason; Disability; Death. If the Employee's
employment is (i) involuntarily terminated by the Company other than for
Cause (as defined herein), (ii) voluntarily terminated by Employee for Good
Reason (as defined herein), (iii) terminated due to Employee's Disability
(as defined herein) or death, in any case within twenty-four (24) months
following a Change of Control (as defined herein), then, subject to the
Employee's obligations pursuant to Section 9 below, the Employee shall
receive the following severance benefits from the Company:
(1) Lump-Sum Severance Payment. A cash payment in an amount equal
to three hundred percent (300%) of the Employee's Annual Compensation
(as defined herein);
(2) Option Accelerated Vesting. One hundred percent (100 %) of
the unvested portion of any stock option covering Company shares or
shares of any subsidiary of the Company held by the Employee shall
automatically become vested in full upon the employment termination
date.
(3) Restricted Stock Accelerated Vesting. Employee's unvested
shares granted under the Company's Executive Stock Plan (or any
similar successor plan) shall vest (i.e., be released from the
Company's repurchase option) as to that percentage of the unvested
shares determined by dividing (i) the number of months that have
elapsed from the restricted stock grant date to the date of employment
termination, by (ii) the number of months between the grant date and
the date when all shares would otherwise have vested based on
Employee's continued employment with the Company.
(4) Continued Employee Benefits. One hundred percent (100%)
Company-paid health, dental and life insurance coverage at the same
level of coverage as was provided to such employee immediately prior
to the Change of Control (the "COMPANY-PAID COVERAGE"). If such
coverage included the Employee's dependents immediately prior to the
Change of Control, such dependents shall also be covered at Company
expense. Company-Paid Coverage shall continue until the earlier of (i)
three (3) years from the date of termination or (ii) the date that the
Employee and his dependents become covered under another employer's
group health, dental or life insurance plans that provide Employee and
his dependents comparable benefits and levels of coverage. For
purposes of Title X of the Consolidated Budget Reconciliation Act of
1985 ("COBRA"), the date of the "qualifying event" for Employee and
his dependents shall be the date upon which the Company-Paid Coverage
terminates.
(5) Bonus Proration. A lump sum dollar amount equal to a pro rata
portion (based on the number of days elapsed during the fiscal year in
which the termination occurs) of Employee's targeted bonus under the
Company's executive bonus plan for the fiscal year in which the
termination occurs.
(6) Company Automobile. The purchase by Employee of the
Company-owned automobile in Employee's possession at the wholesale
Xxxxx Blue Book value.
(b) Timing of Severance Payments. Any severance payment to which
Employee is entitled under Sections 3(a)(1 and 5) shall be paid by the
Company to the Employee (or
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to the Employee's successors in interest, pursuant to Section 7(b)) in
cash and in full, not later than thirty (30) calendar days following the
employment termination date.
(c) Voluntary Resignation other than for Good Reason; Termination for
Cause. If the Employee's employment terminates by reason of the Employee's
voluntary resignation other than for Good Reason, or if the Employee is
terminated involuntarily by the Company for Cause, then the Employee shall
not be entitled to receive severance or other benefits except for those (if
any) as may then be established under the Company's then existing severance
and benefits plans and practices or pursuant to other agreements with the
Company.
(d) Termination Apart from Change of Control. In the event the
Employee's employment is terminated for any reason, either prior to the
occurrence of a Change of Control or after the twenty-four (24) month
period following a Change of Control, then the Employee shall be entitled
to receive severance and any other benefits as may then be established
under the Company's existing severance and benefits plans and practices or
pursuant to other written agreements with the Company.
(e) Non-assumption by Successor Entity. Notwithstanding Sections
3(a)(2) and (3) above, if on the effective date of a Change of Control a
successor to the Company (whether direct or indirect and whether by
purchase, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company's business and/or assets fails to assume
any stock option (granted pursuant to the Company's option plans) or
restricted stock (granted pursuant to the Company's Executive Stock Plan),
then (i) one hundred percent (100%) of the unvested portion of any stock
option covering Company shares or the shares of any subsidiary of the
Company held by the Employee shall automatically become vested in full as
of the Change of Control, and (ii) Employee's unvested shares granted under
the Company's Executive Stock Plan shall pro rata vest as outlined in
Section 3(a)(3) above as of the Change of Control.
4. Attorney Fees, Costs and Expenses. The Company shall promptly reimburse
Employee, on a monthly basis, for the reasonable attorney fees, costs and
expenses incurred by the Employee in connection with any action brought by
Employee to enforce his rights hereunder.
5. Golden Parachute Excise Tax Gross-Up. In the event that the benefits
provided for in this Agreement or otherwise payable to the Employee constitute
"parachute payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "CODE") and will be subject to the excise tax
imposed by Section 4999 (as it may be amended or replaced) of the Code (the
"EXCISE TAX"), then the Employee shall receive (i) a payment from the Company
sufficient to pay such Excise Tax, and (ii) an additional payment from the
Company sufficient to pay the Excise Tax and federal and state income taxes
arising from the payments made by the Company to Employee pursuant to this
sentence. Unless the Company and the Employee otherwise agree in writing, the
determination of Employee's Excise Tax liability and the amount required to be
paid under this Section 5 shall be made in writing by the accounting firm
serving as the Company's independent public accountants immediately prior to the
Change of Control (the "ACCOUNTANTS"). For purposes of making the calculations
required by this Section 5, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of the Code. The Company and
the Employee shall furnish to the Accountants such information and documents as
the Accountants may reasonably
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request in order to make a determination under this Section. The Company shall
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 5.
6. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Annual Compensation. "Annual Compensation" means an amount equal
to the sum of Employee's (i) annual Company salary at the highest rate in
effect in the twelve months immediately preceding the Change of Control,
and (ii) Employee's highest annual bonus (includes cumulation of quarterly
bonus amounts and deferral amounts) awarded within the three fiscal years
immediately prior to the Change of Control.
(b) Cause. "Cause" means (i) any act of personal dishonesty taken by
the Employee in connection with his responsibilities as an employee and
intended to result in substantial personal enrichment of the Employee, (ii)
Employee's conviction of a felony, or (iii) a willful act by the Employee
which constitutes gross misconduct and which is injurious to the Company.
(c) Change of Control. "Change of Control" means the occurrence of any
of the following events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act)
("BENEFICIAL OWNER"), directly or indirectly, of securities of the
Company representing forty percent (40%) or more of the total voting
power represented by the Company's then outstanding voting securities;
or
(ii) A change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall mean
directors who either (A) are directors of the Company as of the date
hereof, or (B) are elected, or nominated for election, to the Board
with the affirmative vote of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection
with an actual or threatened proxy contest relating to the election of
directors to the Company); or
(iii) There occurs a reorganization, merger, consolidation or
other corporate transaction involving the Company (a "TRANSACTION"),
in each case with respect to which the stockholders of the Company
immediately prior to such Transaction do not, immediately after the
Transaction, own more than 50% of the combined voting power of the
Company or other corporation resulting from such Transaction; or
(iv) All or substantially all of the assets of the Company are
sold, liquidated or distributed.
(d) Disability. "Disability" means that Employee has been determined
disabled for purposes of the Seagate Long Term Disability Plan, and has
been so disabled for a period of at least six months.
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(e) Good Reason. "Good Reason" means an Employee's resignation of his
or her employment with the Company within thirty (30) days of and as a
result of any of the following: (i) without the Employee's express written
consent, any material reduction of the Employee's duties, authority or
responsibilities, relative to the Employee's duties, authority or
responsibilities as in effect immediately prior to such reduction, or an
assignment to Employee of such reduced duties, authority or
responsibilities; (ii) without the Employee's express written consent, any
material reduction of the facilities and perquisites available to the
Employee immediately prior to such reduction provided, however, use of
private aircraft shall not be deemed a perquisite for purposes of the
clause; (iii) a reduction by the Company in the base salary of the Employee
as in effect immediately prior to such reduction, other than a reduction
implemented with the consent of the Employee or a reduction that is
equivalent to salary reductions imposed on all executives of the Company;
(iv) any material reduction by the Company in the kind or level of employee
benefits, including bonuses, to which the Employee was entitled immediately
prior to such reduction; (v) the relocation of the Employee to a facility
or a location more than fifty (50) miles from the Employee's then present
location, without the Employee's express written consent; or (vi) failure
by the Company's Successors as outlined in Section 7 below to assume any
and all of the rights, duties and obligations under this Agreement.
7. Successors.
(a) Company's Successors. Any successor to the Company (whether direct
or indirect and whether by purchase, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or
assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform
such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the
Company's business and/or assets which executes and delivers the assumption
agreement described in this Section 7(a) or which becomes bound by the
terms of this Agreement by operation of law.
(b) Employee's Successors. The terms of this Agreement and all rights
of the Employee hereunder shall inure to the benefit of, and be enforceable
by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
8. Notice.
(a) General. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified
mail, return receipt requested and postage prepaid. In the case of the
Employee, mailed notices shall be addressed to him at the home address
which he most recently communicated to the Company in writing. In the case
of the Company, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
(b) Notice of Termination. Any termination by the Company for Cause or
by the Employee as a result of a voluntary resignation (whether or not for
Good Reason) shall be
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communicated by a notice of termination to the other party hereto given in
accordance with Section 8(a) of this Agreement. Such notice shall indicate
the specific termination provision in this Agreement relied upon, shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination under the provision so indicated, and shall specify
the employment termination date (which shall be not more than 30 days after
the giving of such notice). The failure by the Employee to include in the
notice any fact or circumstance which contributes to a showing of Good
Reason shall not waive any right of the Employee hereunder or preclude the
Employee from asserting such fact or circumstance in enforcing his rights
hereunder.
9. Employee Covenants. As consideration for the severance and other
benefits the Employee is to receive herein, the Employee agrees that he will not
as an employee, agent, consultant, advisor, officer or director of any
corporation, partnership, person or other entity, directly or indirectly at any
time during his employment with the Company and continuing until twenty-four
(24) months after his termination of employment with the Company:
(a) Participate or engage in the development, production, sale,
marketing or servicing of any business enterprise that is in competition
with any of the Company's (or any of its subsidiaries') product lines or
business activities, or
(b) Solicit, employ or interfere in any other manner with the
employment relationships existing between the Company (or any of its
subsidiaries) and its current or prospective employees.
10. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor
shall any such payment be reduced by any earnings that the Employee may
receive from any other source.
(b) Waiver. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(c) Whole Agreement. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. This Agreement
represents the entire understanding of the parties hereto with respect to
the subject matter hereof and supersedes all prior arrangements and
understandings regarding same.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware.
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(e) Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(f) Withholding. All payments made pursuant to this Agreement will be
subject to withholding of applicable income and employment taxes to the
extent required by law.
(g) Loans. Employee shall repay any outstanding Company loans
(principal and accrued interest) on Employee's termination date unless the
respective loan terms and conditions preclude repayment.
(h) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year set
forth below.
COMPANY: SEAGATE TECHNOLOGY, INC.
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EMPLOYEE: ----------------------------
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