Exhibit 10.2
SECOND AMENDED AND
RESTATED
SEAGATE TECHNOLOGY EXECUTIVE
SEVERANCE AND CHANGE IN CONTROL
(CIC) PLAN
SECTION 1.
INTRODUCTION.
THE SECOND AMENDED AND RESTATED
SEAGATE TECHNOLOGY EXECUTIVE SEVERANCE AND CHANGE IN CONTROL (CIC)
PLAN (the “
Plan ” or “ Severance and CIC Plan
”) was originally approved by the Board of Directors of
SEAGATE TECHNOLOGY (the “ Company ”) on
August 21, 2008 as the Seagate Technology Executive Officer
Severance and Change in Control (CIC) Plan, and became effective on
September 1, 2008. The Plan was first amended and restated by
the Plan Administrator on April 29, 2009, and was subsequently
amended and restated in the form set forth herein by the Plan
Administrator on July 29, 2009 to be effective August 1,
2009. The purpose of the Plan is to provide for the payment of
severance benefits to certain eligible executives of the Company in
the event their employment with the Company and any Applicable
Subsidiary (as defined herein), as applicable, is terminated
involuntarily, as provided herein, and to encourage such executives
to continue as employees of the Company or an Applicable
Subsidiary, as the case may be, in the event of a Change in Control
(as defined herein). Except as otherwise stated herein, this Plan
shall supersede any severance benefit plan, policy or practice
previously maintained by the Company (including, without
limitation, the provisions of any employment agreement between any
Eligible Executive and the Company or any Applicable Subsidiary).
This Plan document also is the Summary Plan Description for the
Plan.
SECTION 2. ELIGIBILITY FOR
BENEFITS.
(a) General Rules
. Subject to the requirements set
forth in this Section, the Company will grant severance benefits
under the Plan to each Eligible Executive.
(i) “ Potential Eligible
Executive ” refers to all executives employed by the
Company or any Applicable Subsidiary with the Level (as defined
below) of vice president or more senior selected to participate in
this Plan as indicated in the Benefits Schedules attached hereto.
An “ Eligible Executive ” is any Potential
Eligible Executive, other than those excluded under this
Section 2, whose employment with the Company or any Applicable
Subsidiary is either (A) voluntarily terminated for Good
Reason (as defined herein) or (B) involuntarily terminated for
a reason other than Cause (as defined herein) (collectively, a
“ Termination Event ”). In addition, other than
during a period beginning on the date of the occurrence of a Change
in Control and ending at the end of the Change in Control Period
with respect to such Change in Control, a Potential Eligible
Executive must be designated by the Plan Administrator as an
Eligible Executive. Additionally, an Eligible Executive shall be
eligible for additional benefits under this Plan if the Termination
Event occurs during the Change in Control Period (as defined
herein). For the avoidance of doubt, a Potential Eligible Executive
who is involuntarily terminated for Cause shall not be eligible for
benefits under this Plan.
(ii) In order to be eligible to
receive benefits under the Plan, in addition to meeting the
requirements of an “Eligible Executive” set forth in
Section 2(a)(i) above, an Eligible Executive must execute
within 45 days of the Eligible Employee’s receipt thereof
(A) a general waiver and release on the form provided by the
Company and (B) an agreement containing certain covenants on
the form provided by the Company and covering the matters set forth
in Section 6 of this Plan, the scope and applicability of
which covenants shall be determined by the Plan Administrator in
its sole discretion (collectively, the “ Release and
Covenant Documents ”).
(iii) Any Termination Event that
triggers the payment of benefits under this Plan must occur during
the term of this Plan as specified in Section 9(b);
provided that in any event eligibility for benefits shall
continue until the expiration of a Change in Control Period (as
defined below) if a Change in Control Period commences prior to the
time that the Plan is in effect.
(b) Exceptions . A Potential Eligible
Executive who otherwise is an Eligible Executive will not receive
benefits under the Plan in any of the following
circumstances:
(i) The Potential Eligible Executive
is involuntarily terminated for any reason other than a reason
specified in Section 2(a)(i).
(ii) The Potential Eligible
Executive voluntarily terminates employment with the Company either
(A) for a reason other than Good Reason or (B) for no
reason. Voluntary terminations include, but are not limited to,
death, Disability, resignation, retirement, or failure to return
from a leave of absence on the scheduled date.
SECTION 3.
DEFINITIONS.
Capitalized terms used in this Plan,
unless defined elsewhere in this Plan, shall have the following
meanings:
(a) Accrued Bonus Funding means the funding
of the Bonus Plan as a percent of target funding as approved by the
Plan Administrator quarterly based on actual Company performance
versus pre-determined targets, as follows:
(i) Q1 Accrued Bonus Funding
means the Accrued Bonus Funding as determined by the Plan
Administrator with respect to the first quarter of the
Company’s applicable fiscal year (i.e., following the release
of the Company’s first quarter earnings results, but prior to
the release of the Company’s second quarter earnings
results).
(ii) Q2 Accrued Bonus Funding
means the Accrued Bonus Funding as determined by the Plan
Administrator with respect to the second quarter of the
Company’s applicable fiscal year (i.e., following the release
of the Company’s second quarter earnings results, but prior
to the release of the Company’s third quarter earnings
results).
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(iii) Q3 Accrued Bonus
Funding means the Accrued Bonus Funding as determined by the
Plan Administrator with respect to the third quarter of the
Company’s applicable fiscal year (i.e., following the release
of the Company’s third quarter earnings results, but prior to
the release of the Company’s fourth quarter earnings
results).
(iv) Q4 Accrued Bonus Funding
means the Accrued Bonus Funding as determined by the Plan
Administrator with respect to the fourth quarter of the
Company’s applicable fiscal year (i.e., following the release
of the Company’s fourth quarter earnings results).
For the purposes of this Plan, the
Accrued Bonus Funding for a given fiscal year or any portion
thereof may not exceed 100% of target funding, even if the Plan
Administrator has determined that the funding of the Bonus Plan
shall accrue at a higher percentage.
(b) Applicable Subsidiary means all
subsidiaries of the Company included on Schedule A attached
hereto.
(c) Beneficial Owner means the definition
given in Rule 13d-3 promulgated under the Exchange Act.
(d) Board means the Board of Directors of the
Company.
(e) Bonus Plan
means the Company’s Executive
Officer Performance Bonus Plan, the Executive Performance Bonus
Plan or similar cash incentive bonus plan adopted by the Company as
a successor to one or more of the previously listed bonus plans
from time to time. For the avoidance of doubt, one-time bonuses
paid by the Company to a Potential Eligible Executive that are not
paid under one of the bonus plans described in the preceding
sentence shall not be treated as cash incentive bonuses and
therefore shall be excluded from the definition of “Accrued
Bonus Funding,” “Pro Rata Bonus” and
“Target Bonus” for purposes of this Plan. Examples of
such one-time bonuses are sign-on bonuses, special recognition
bonuses and guaranteed bonuses. For purposes of this Plan, no
Eligible Executive shall be treated as participating in more than
one Bonus Plan on the date of a Termination Event. In the unlikely
event that an Eligible Executive is participating in more than one
cash incentive bonus plan that would otherwise qualify as a Bonus
Plan but for the preceding sentence, the cash incentive bonus plan
that would produce the largest payment under the terms of this Plan
shall be treated as the Bonus Plan for such Eligible
Executive.
(f) Cause means (i) a Potential Eligible
Executive’s continued failure to substantially perform the
material duties of his or her office (other than as a result of
total or partial incapacity due to physical or mental illness),
(ii) embezzlement or theft by a Potential Eligible Executive
of the Company’s property, (iii) the commission of any
act or acts on a Potential Eligible Executive’s part
resulting in the conviction of such Potential Eligible Executive of
a felony under the laws of the United States or any state or
foreign jurisdiction, (iv) a Potential Eligible
Executive’s willful malfeasance or willful misconduct in
connection with such Potential Eligible Executive’s duties to
Company or any of its subsidiaries or affiliates or any other act
or omission which is materially injurious to the financial
condition or
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business reputation of the Company or any of its
subsidiaries or affiliates, or (v) a material breach by a
Potential Eligible Executive of any of the material provisions of
(A) this Plan, (B) any non-compete, non-solicitation or
confidentiality provisions to which such Potential Eligible
Executive is subject or (C) any policy of the Company or any
of its subsidiaries or affiliates to which such Potential Eligible
Executive is subject. However, no termination shall be deemed for
Cause under clause (i), (iv) or (v) unless the Potential
Eligible Executive is first given written notice by the Company of
the specific acts or omissions which the Company deems constitute
grounds for a termination for Cause, is provided with at least 30
days after such notice to cure the specified deficiency and fails
to substantially cure such deficiency within such time frame to the
satisfaction of the Plan Administrator.
(g) Change in Control means the occurrence of
any of the following events:
(i) The sale, exchange, lease or
other disposition of all or substantially all of the assets of the
Company to a person or group of related persons, as such terms are
defined or described in Sections 3(a)(9) and 13(d)(3) of the
Exchange Act, that will continue the business of the Company in the
future;
(ii) A merger, consolidation or
similar transaction involving the Company and at least one other
entity in which the voting securities of the Company owned by the
shareholders of the Company immediately prior to such merger,
consolidation or similar transaction do not represent, after
conversion if applicable, more than fifty percent (50%) of the
total voting power of the surviving controlling entity outstanding
immediately after such merger, consolidation or similar
transaction; provided that any person who (1) was a Beneficial
Owner of the voting securities of the Company immediately prior to
such merger, consolidation or similar transaction, and (2) is
a Beneficial Owner of more than 20% of the securities of the
Company immediately after such merger, consolidation or similar
transaction, shall be excluded from the list of “shareholders
of the Company immediately prior to such merger, consolidation or
similar transaction” for purposes of the preceding
calculation;
(iii) Any person or group is or
becomes the Beneficial Owner, directly or indirectly, of more than
50% of the total voting power of the voting stock of the Company
(including by way of merger, consolidation or
otherwise);
(iv) During any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board (together with any new directors whose
election by such Board or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of
the directors of the Company then still in office, who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board then in office;
or
(v) A dissolution or liquidation of
the Company.
(h) Change in Control Period means the
following:
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(i) if the Change in Control is
preceded by the Company’s entry into a definitive agreement
regarding the Change in Control, the period beginning on the date
that the Company enters into a definitive agreement with respect to
a Change in Control and ending on the date that is 24 months
following the effective date of the Change in Control that is the
subject of such definitive agreement; and
(ii) if the Change in Control is not
preceded by the Company’s entry into a definitive agreement
regarding the Change in Control, the period beginning on the date
of the applicable triggering event set forth in Section 3(g)
above and ending 24 months after the date of such triggering
event.
For the avoidance of doubt, no
enhanced benefits payable to an Eligible Executive due to a
Termination Event occurring within a Change in Control Period shall
be paid prior to the effective date of a Change in
Control.
(i) Code means the Internal Revenue Code of
1986, as amended. Any specific reference to a section of the Code
shall be deemed to include any regulations and other Treasury
Department guidance promulgated thereunder.
(j) Company means Seagate Technology, an
exempted limited liability company incorporated under the laws of
the Cayman Islands, and any successor as provided in
Section 9(c) hereof.
(k) Disability means the physical or mental
incapacitation such that for a period of six consecutive months or
for an aggregate of nine months in any 24-month consecutive period,
a Potential Eligible Executive is unable to substantially perform
his or her duties. Any question as to the existence of that
Potential Eligible Executive’s physical or mental
incapacitation as to which the Potential Eligible Executive or the
Potential Eligible Executive’s representative and the Company
cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to the Potential Eligible
Executive and the Company. If the Potential Eligible Executive and
the Company cannot agree as to a qualified independent physician,
each shall appoint such a physician and those two physicians shall
select a third who shall make such determination in writing. The
determination of “Disability” made in writing to the
Company and the Potential Eligible Executive shall be final and
conclusive for all purposes of the benefits under this
Plan.
(l) Exchange Act means the Securities
Exchange Act of 1934, as amended.
(m) Good Reason means a Potential Eligible
Executive’s resignation of his or her employment with the
Company or an Applicable Subsidiary as a result of the occurrence
of one or more of the following actions, which such action or
actions remain uncured for at least 30 days following written
notice from such Potential Eligible Executive to the Company
describing the occurrence of such action or actions and asserting
that such action or actions constitute grounds for a Good Reason
resignation which notice must be provided by the Potential Eligible
Executive no later than 90 days after the initial existence of such
condition, provided that such resignation occurs no later than 60
days after the expiration of the cure period: (i) without such
Potential Eligible Executive’s express written consent, any
material diminution in the level of
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such Potential Eligible Executive’s
authority or duties; (ii) without such Potential Eligible
Executive’s express written consent, a reduction of 10% or
more in the level of the base salary or employee benefits to be
provided to such Potential Eligible Executive, other than a
reduction implemented with the consent of such Potential Eligible
Executive or a reduction that is equivalent to reduction in base
salaries and/or employee benefits, as applicable, imposed on all
other executives of the Company at a similar level within the
Company; (iii) the relocation of such Potential Eligible
Executive to a principal place of employment that increases such
Potential Eligible Executive’s one-way commute by more than
50 miles from such Potential Eligible Executive’s current
principal place of employment, without such Potential Eligible
Executive’s express written consent; or (iv) the failure
of any successor to the business of the Company or to substantially
all of the assets and/or business of the Company to assume the
Company’s obligations under this Plan as required by
Section 9(c).
(n) IRS means the Internal Revenue
Service.
(o) Level means an executive’s level or
title as designated by the Plan Administrator in its sole
discretion and in accordance with this Plan as in effect on the
Termination Date (or if greater, immediately preceding either a
Change in Control or termination for Good Reason, as
applicable).
(p) Non-U.S. Eligible Executive means any
Eligible Executive not employed in the United States of America,
including its territories and possessions, on the date of a
Termination Event.
(q) Pay means the Eligible Executive’s
monthly base pay at the rate in effect on the Termination Date (or
if greater, the last regularly scheduled payroll period immediately
preceding either a Change in Control or termination for Good
Reason, as applicable).
(r) Payment Confirmation Date means the
latest of the following applicable dates: (A) the date
of the Termination Event, (B) the Termination Date,
(C) the effective date of the Covenants (as defined in
Section 6), (D) the date of receipt of executed Release
and Covenant Documents by the Company or (E) the end of any
waiting period or revocation period as required by applicable law
in order for the general waiver and release required by
Section 2(a)(ii) of this Plan to be effective.
(s) Plan means this Second Amended and
Restated Seagate Technology Executive Severance and CIC
Plan.
(t) Prior Year Bonus for an Eligible
Executive whose Termination Event occurs in the first quarter of
the applicable fiscal year and outside of a Change in Control
Period shall be calculated as set forth in this
Section 3(t):
(i) If the Termination Event occurs
prior to determination of the Q4 Accrued Bonus Funding for the then
most recently completed fiscal year, the amount of the Prior Year
Bonus shall be determined based on the Q3 Accrued Bonus Funding for
such year, not to exceed 100%, multiplied by the Eligible
Executive’s then current annual target bonus, without
pro-ration.
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(ii) If the Termination Event occurs
following determination of the Q4 Accrued Bonus Funding for the
then most recently completed fiscal year, but prior to the actual
payment of an incentive under a Bonus Plan for such year, the
amount of the Prior Year Bonus shall be determined based on the Q4
Accrued Bonus Funding for such year, not to exceed 100%, multiplied
by the Eligible Executive’s then current annual target bonus,
without pro-ration.
(iii) Other than as described in
Sections 3(t)(i)-(ii) above, no Prior Year Bonus shall be paid
to any Eligible Executive.
(u) Pro Rata Bonus for an Eligible Executive
who is not a Non-U.S. Eligible Executive and whose Termination
Event occurs outside of a Change in Control Period shall be
calculated in relation to the fiscal year during which termination
takes place, as set forth in this Section 3(u):
(i) If the Termination Event occurs
prior to determination of the Q1 Accrued Bonus Funding and the
Eligible Executive either was a “covered employee”
within the meaning of Section 162(m) of the Code for the last
fiscal year of the Company completed prior to the Termination Event
or, based on such Eligible Executive’s compensation paid
through the date of the Termination Event, such Eligible Executive
is projected, in the sole and reasonable determination of the Plan
Administrator, to be a “covered employee” within the
meaning of Section 162(m) of the Code assuming he or she
remained employed by the Company through the end of the then
current fiscal year (and so for purposes of this Plan shall be
considered to be “subject to Section 162(m) of the
Code”), the amount of the Pro Rata Bonus shall be based on
the Q1 Accrued Bonus Funding, once determined, multiplied by the
Eligible Executive’s then current annual target bonus,
prorated for the number of days employed during the fiscal year of
the Termination Event divided by 360.
(ii) If the Termination Event occurs
prior to determination of the Q1 Accrued Bonus Funding and the
Eligible Office is not subject to Section 162(m) of the Code,
the amount of the Pro Rata Bonus shall be determined based on the
Eligible Executive’s then current annual target bonus,
prorated for the number of days employed during the fiscal year of
the Termination Event divided by 360.
(iii) If the Termination Event
occurs following determination of the Q1 Accrued Bonus Funding, but
prior to determination of the Q2 Accrued Bonus Funding, the amount
of the Pro Rata Bonus shall be determined based on the Q1 Accrued
Bonus Funding multiplied by the Eligible Executive’s then
current annual target bonus, prorated for the number of days
employed during the fiscal year of the Termination Event divided by
360.
(iv) If the Termination Event occurs
following determination of the Q2 Accrued Bonus Funding, but prior
to determination of the Q3 Accrued Bonus Funding, the amount of the
Pro Rata Bonus shall be determined based on the Q2 Accrued Bonus
Funding multiplied by the Eligible Executive’s then current
annual target bonus, prorated
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for the number of days employed
during the fiscal year of the Termination Event divided by
360.
(v) If the Termination Event occurs
following determination of the Q3 Accrued Bonus Funding, but prior
to the fiscal year end, the amount of the Pro Rata Bonus shall be
determined based on the Q3 Accrued Bonus Funding multiplied by the
Eligible Executive’s then current annual target bonus,
prorated for the number of days employed during the fiscal year of
the Termination Event divided by 360, provided in any event that
the prorate factor does not exceed 1.00.
(vi) Other than as described in
Sections 3(u)(i)-(v) above, no Pro Rata Bonus shall be paid to
any Eligible Executive.
(v) Severance Period means the number of
months of Pay, rounded to the nearest whole month, used for
calculating the Eligible Executive’s severance benefits, as
specified in the Benefits Schedules attached hereto.
Notwithstanding the foregoing, in the event that the Eligible
Executive becomes eligible to receive additional benefits in
connection with the occurrence of a Change in Control, the
Severance Period shall be twelve months from the Payment
Confirmation Date.
(w) Target Bonus means the Eligible
Executive’s most recently approved target bonus level
(expressed as a percentage of base pay) with respect to the Bonus
Plan, multiplied by the Eligible Executive’s Pay.
(x) Termination Date means the last date on
which the Eligible Executive is in active employment status with
the Company or any of its affiliates or subsidiaries as determined
by the Plan Administrator in its sole and reasonable
discretion.
(y) WARN Act means the federal Worker
Adjustment and Retraining Notification Act and any other comparable
law applicable under the laws of any state or foreign
jurisdiction.
SECTION 4. AMOUNT OF
BENEFIT.
Severance benefits payable under the
Plan are as follows:
(a) Subject to Section 6(f), Eligible
Executives will receive the benefits described in Sections 7 and 8
of the Plan and in the Benefit Schedules attached hereto. The level
of benefits applicable to an Eligible Executive shall be based upon
his or her Level (and corresponding salary grade). In the event of
any circumstances relating to the Eligible Executive’s Level
and assigned salary grade that may result in a difference in the
level of benefits applicable to an Eligible Executive under the
Plan, the Eligible Executive’s salary grade shall control for
purposes of placing the Eligible Executive in a specific
“Tier” of benefits set forth in the Benefits
Schedules.
(b) Notwithstanding any other provision of the Plan
to the contrary, any benefits payable to an Eligible Executive
under this Plan shall be in lieu of any severance benefits payable
by the Company to such individual under any other arrangement
covering the individual, unless expressly otherwise agreed to by
the Company in writing. Further, in the
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event that the Eligible Executive is entitled to
receive severance benefits under any agreement or contract with the
Company, any plan, policy, program or other arrangement adopted or
established by the Company, under the WARN Act or other applicable
law providing for payments from the Company or its subsidiaries or
affiliates on account of termination of employment, including pay
in lieu of advance notice of termination, or as otherwise legally
required to be paid to any Non-U.S. Eligible Executive (“
Other Benefits ”), any severance benefits payable
hereunder shall be reduced by the Other Benefits.
SECTION 5. TIME OF PAYMENT AND
FORM OF BENEFIT; INDEBTEDNESS.
(a) Benefits under this Plan shall be paid according
to the schedule specified in the Benefits Schedules attached
hereto, subject to Section 6(f) and the following
provisions:
(i) Any increase to the cash
severance benefits payable on account of the occurrence of a
Termination Event during a Change in Control Period (such as when
the Termination Event occurs following the entry into a definitive
agreement for a Change in Control, but prior to the consummation of
the Change in Control) shall be paid (A) as soon as date
administratively practicable following the determination of such
increased cash severance benefits has occurred with respect to lump
sum severance payments or (B) on the remaining payment date(s)
with respect to installment payment severance payments.
(ii) Unless otherwise required by
applicable law, in no event shall payment of any Plan benefit be
due prior to the Eligible Executive’s Payment Confirmation
Date, and any payment shall be deemed to be timely made if paid
within 20 business days of such date.
(iii) Notwithstanding anything to
the contrary in this Section 5(a), except for a Termination
Event occurring during a Change in Control Period, the Plan
Administrator may in its sole discretion, determine an alternate
payment schedule for any reason, including, without limitation, to
comply with Section 409A of the Code. For a Termination Event
occurring during a Change in Control Period, the Plan Administrator
may determine an alternate payment schedule only to ensure
compliance with applicable law, including but not limited to
Section 409A of the Code.
(b) Subject to compliance with Section 409A of
the Code and other applicable law, if an Eligible Executive is
indebted to the Company at his or her Termination Date, the Company
reserves the right to offset any severance payments under the Plan
by the amount of such indebtedness.
SECTION 6. ELIGIBLE EXECUTIVE
COVENANTS
Severance benefits payable under the
Plan are subject to the following covenants made by each Eligible
Executive (the “ Covenants ”), the scope and
applicability of which covenants shall be determined by the Plan
Administrator in its sole discretion, but in any event shall not be
substantially greater than as set forth in this
Section 6:
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(a) Non-Competition
. During the Severance Period, an
Eligible Executive will not directly or indirectly:
(i) engage in any business that
competes with the business of the Company, or its subsidiaries
(including, without limitation, any businesses which the Company or
its subsidiaries have specific plans to conduct in the future and
as to which such Eligible Executive is aware of such planning) in
any geographical area which is within 100 miles of any geographical
area in which the Company or its subsidiaries conduct such business
(a “ Competitive Business ”);
(ii) enter the employ of, or render
any services to, any person or entity (or any division of any
person or entity) who or which engages in a Competitive
Business;
(iii) acquire a financial interest
in, or otherwise become actively involved with, any Competitive
Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or
consultant; or
(iv) interfere with, or attempt to
interfere with, business relationships (whether formed before, on
or after the date of this Agreement) between the Company or any of
its subsidiaries and customers, clients, suppliers, partners,
members or investors of the Company or its subsidiaries.
Notwithstanding anything to the
contrary in this Plan, an Eligible Executive may, directly or
indirectly own, solely as a passive investment, securities of any
person engaged in the business of the Company or its subsidiaries
which are actively traded on a public securities market (including
the OTCBB and similar over-the-counter market) if such Eligible
Executive (i) is not a controlling person of, or a member of a
group which controls, such person and (ii) does not, directly
or indirectly, own 5% or more of any class of such actively traded
securities of such person.
(b) Non-Solicitation of
Clients . During the
Severance Period, an Eligible Executive will not, whether on such
Eligible Executive’s own behalf or on behalf of or in
conjunction with any person, company, business entity or other
organization whatsoever, directly or indirectly solicit or assist
in soliciting in competition with the Company, the business of any
client or prospective client:
(i) with whom such Eligible
Executive had personal contact or dealings on behalf of the Company
during the one year period preceding such Eligible
Executive’s Termination Date;
(ii) with whom employees reporting
to such Eligible Executive have had personal contact or dealings on
behalf of the Company during the one year immediately preceding
such Eligible Executive’s Termination Date; or
(iii) for whom such Eligible
Executive had direct or indirect responsibility during the one year
immediately preceding such El