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Exhibit 10.5
QUANTUM CORPORATION
AMENDED AND RESTATED DIRECTOR CHANGE OF CONTROL
AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR CHANGE OF
CONTROL AGREEMENT ("Agreement") is effective as of November ___,
2007, by and between _______________ (the "Director") and QUANTUM
CORPORATION, a Delaware corporation (the "Corporation"). This
Agreement amends and restates the Director Change of Control
Agreement entered into as of April 1, 2007, by and between the
Employee and the Corporation.
Recitals
A. The board of directors of the Corporation has
determined that it is in the best interests of the Corporation and
its stockholders to assure that the Corporation will have the
continued dedication and objectivity of the Director,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below) of the Corporation.
B. The board of directors believes that it is
important to provide the Director with stock benefits upon a Change
of Control, which are competitive with those of other corporations,
and provide sufficient incentive to the Director to continue his or
her Association (as defined below) with the Corporation following a
Change of Control.
C. In order to accomplish the foregoing
objectives, the board of directors has directed the Corporation,
upon execution of this Agreement by the Director, to agree to amend
and restate the terms of this Agreement as in effect since its
original effective date and to extend the terms of this Agreement
as set forth below.
D. Certain capitalized terms used in the Agreement are defined
in Section 2 below.
In consideration of the mutual covenants herein
contained, and in consideration of the continuing Association of
the Director with the Corporation, the parties agree as
follows:
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- Acceleration of Vesting of Equity-Based Compensation
Awards .
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- Termination in Connection with a Change of Control . If
the Director's Association with the Corporation terminates on or
within the eighteen (18) month period following a Change of
Control, other than termination due to death or Disability, then
the portion of any equity-based compensation awards held by
Director that is not vested at the time of termination shall
automatically become vested.
- Treatment of Certain Awards Granted under the Nonemployee
Director Equity Incentive Plan . Section 9.9 of the Nonemployee
Director Equity Incentive Plan (the "Plan") as amended and restated
effective November 10, 2007, (the "Restatement Date") shall apply
to any Restricted Stock Unit Award granted thereunder. The
Corporation and the Director hereby agree that the provisions of
this Section 1(b) shall supersede any conflicting provisions of the
Plan and any Restricted Stock Unit award agreement of the Director,
and the Corporation and the Director hereby agree that this Section
1(b) shall be deemed an amendment to any such agreement.
- Code Section 409A .
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- Notwithstanding anything to the contrary in this Agreement, if
the Director is a "specified employee" within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended, and
the final regulations and any guidance promulgated thereunder
("Section 409A") at the time the Director's Association terminates
(other than due to death), then the vesting acceleration provided
under Section 1(a) of this Agreement of any Restricted Stock Units
or other Awards granted under the Plan that are otherwise deferred
compensation under Section 409A, if any, and any other severance
payments or separation benefits that may be considered deferred
compensation under Section 409A (together, the "Deferred
Compensation Separation Benefits") otherwise due to the Director on
or within the six (6) month period following the Director's
termination of Association will accrue during such six (6) month
period and will become payable in a lump sum payment (less
applicable withholding taxes) on the date six (6) months and one
(1) day following the date of the Director's termination of
Association. All subsequent payments, if any, will be payable in
accordance with the payment schedule applicable to each payment or
benefit. Notwithstanding anything herein to the contrary, if the
Director dies following his termination of Association but prior to
the six (6) month anniversary of his date of termination, then any
payments delayed in accordance with this paragraph will be payable
in a lump sum (less applicable withholding taxes) to the Director's
estate as soon as administratively practicable after the date of
the Director's death and all other Deferred Compensation Separation
Benefits will be payable in accordance with the payment schedule
applicable to each payment or benefit.
- This provision is intended to comply with the requirements of
Section 409A so that none of the severance payments and benefits to
be provided hereunder will be subject to the additional tax imposed
under Section 409A, and any ambiguities herein will be interpreted
to so comply. The Corporation and the Employee agree to work
together in good faith to consider amendments to this Agreement and
to take such reasonable actions which are necessary, appropriate or
desirable to avoid imposition of any additional tax or income
recognition prior to actual payment to the Employee under Section
409A.
- Definition of Terms . The following terms referred to in
this Agreement shall have the following meanings:
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- Change of Control . "Change of
Control" shall mean the occurrence of any of the following
events:
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- Any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended) is or becomes
the "beneficial owner" (as defined in Rule l3d-3 under said Act),
directly or indirectly, of securities of the Corporation
representing forty percent (40%) or more of the total voting power
represented by the Corporation's then outstanding voting
securities; or
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- A change in the composition of the board of directors of the
Corporation occurring within a twenty-four (24) month 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 Corporation as of the date hereof,
or (B) are elected, or nominated for election, to the board of
directors of the Corporation with the affirmative votes 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 Corporation);
or
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- The consummation of a merger or consolidation of the
Corporation with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
Corporation outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty
percent (50%) of the total voting power represented by the voting
securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the Corporation approve a plan of complete liquidation of the
Corporation or the consummation of a sa
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