EXHIBIT 10.21
SEAGATE TECHNOLOGY
2004
STOCK COMPENSATION
PLAN
OPTION AGREEMENT
(with acknowledgement of
Compensation Recovery Policy)
THIS AGREEMENT (including any
exhibits hereto, the “Agreement”) is made effective as
of the Date of Grant (as set forth in the attached Notice of Stock
Option Grant (including any exhibits thereto, the
“Notice”), the terms of which Notice are hereby made a
part of this Agreement) between Seagate Technology, a limited
company incorporated in the Cayman Islands (the
“Company”), and the Participant named in the
Notice.
R
E C I
T A L S :
WHEREAS, the Company has adopted the
Seagate Technology 2004 Stock Compensation Plan (including any
exhibits thereto, the “Plan”), which Plan is
incorporated herein by reference and made a part of this Agreement.
Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan; and
WHEREAS, the Committee has
determined that it would be in the best interests of the Company
and its shareholders to grant the Option provided for herein to the
Participant pursuant to the Plan and the terms set forth herein and
in the Notice.
NOW THEREFORE, in consideration of
the mutual covenants hereinafter set forth, the parties agree as
follows:
1. Grant of the Option . The
Company hereby grants to the Participant the right and option (the
“Option”) to purchase, on the terms and conditions
hereinafter set forth, all or any part of an aggregate of that
number of Shares set forth in the Notice, subject to adjustment
from time to time pursuant to the provisions of Section 13 of
the Plan. The purchase price per share of the Shares subject to the
Option (the “Option Price”) shall be the
“Exercise Price (Per Share)” set forth in the Notice,
subject to adjustment from time to time pursuant to the provisions
of Section 13 of the Plan. The Option is intended to be a
non-qualified stock option, and is not intended to be treated as an
option that complies with Section 422 of the Internal Revenue
Code of 1986, as amended.
2. Vesting . At any time, the
portion of the Option which has become vested and exercisable as
described in this Section 2 is hereinafter referred to as the
“Vested Portion.”
(a) Vesting Schedule
.
(i) Subject to Sections 2(a)(ii),
2(a)(iii), and 2(b) below, the Option shall vest and become
exercisable with respect to 25% of the Shares initially
subject to the Option on the first
anniversary of the Vesting Commencement Date (as set forth in the
Notice) and shall vest and become exercisable with respect to an
additional 1/48th of the Shares initially subject to the Option at
the end of each full month thereafter (measured by using the same
day of each subsequent month as the Vesting Commencement Date (as
set forth in the Notice), or if there is no same day in a given
subsequent month, the last day of such subsequent
month).
(ii) Notwithstanding the foregoing,
in the event of a Change of Control in which the Option is not to
be assumed or replaced with a substitute option which substantially
preserves both the intrinsic value (i.e., the excess of the Fair
Market Value of the Shares subject to the Option over the aggregate
Option Price) and the rights and benefits of the Option as in
effect immediately prior to such Change of Control or is not
otherwise to be continued in effect by the Company or any successor
entity in the Change of Control, then the Option shall, for at
least 10 days prior to the consummation of the Change of Control,
vest and become exercisable for all the Shares at the time subject
to the Option and the Option shall terminate upon the consummation
of the Change of Control.
(iii) In addition to the foregoing,
in the event of the Participant’s termination of Continuous
Service with the Company on account of the Participant’s
death, the Participant shall be deemed to have completed an
additional year of service for purposes of determining the portion
of the Option which is the Vested Portion.
(b) Termination of
Employment
If the Participant’s
Continuous Service with the Company is terminated for any reason,
the Option shall, to the extent not then vested, be canceled by the
Company without consideration. The Vested Portion of the Option
shall remain exercisable for the period set forth in
Section 3(a).
3. Exercise of Option
.
(a) Period of
Exercise
Subject to the provisions of the
Plan and this Agreement, the Participant may exercise all or any
part of the Vested Portion of the Option at any time prior to the
earliest to occur of:
(i) the “Expiration
Date” set forth in the Notice;
(ii) one year following the date of
the Participant’s termination of Continuous Service as a
result of death or Disability (as defined in the Plan);
(iii) three (3) months
following the date of the Participant’s termination of
Continuous Service by the Company without Cause (other than as a
result of death or Disability) or by the Participant for any
reason; and
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(iv) the date of the
Participant’s termination of Continuous Service by the
Company for Cause.
For purposes of this
Agreement:
“Cause” shall mean
(i) the Participant’s continued failure substantially to
perform the material duties of his office (other than as a result
of total or partial incapacity due to physical or mental illness),
(ii) the embezzlement or theft by the Participant of the
Company’s property, (iii) the commission of any act or
acts on the Participant’s part resulting in the conviction of
such Participant of a felony under the laws of the United States or
any state, (iv) the Participant’s willful malfeasance or
willful misconduct in connection with the Participant’s
duties to the Company or any other act or omission which is
materially injurious to the financial condition or business
reputation of the Company or any of its subsidiaries or affiliates,
or (v) a material breach by the Participant of the material
terms of his employment agreement or any non-compete,
non-solicitation or confidentiality provisions to which the
Participant is subject. However, no termination shall be deemed for
Cause under clause (i), (iv) or (v) unless the
Participant 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 and is provided with at least
30 days after such notice to cure the specified
deficiency.
(b) Method of Exercise
.
(i) Subject to Section 3(a),
the Vested Portion of the Option may be exercised by delivering to
the Company at its principal office or its designee written notice
of intent to so exercise; provided that , the Option
may be exercised with respect to whole Shares only. Such notice
shall specify the number of Shares for which the Option is being
exercised and shall be accompanied by payment in full of the Option
Price. The purchase price for the Shares as to which the Option is
exercised shall be paid to the Company, at the election of the
Participant, (i) in cash or by check or (ii) if there
should be a public market for the Shares at such time, (A) in
Shares having a Fair Market Value equal to the aggregate Option
Price for the Shares being purchased and satisfying such other
requirements as may be imposed by the Committee; provided ,
that if such Shares were acquired, directly or indirectly, from the
Company, such Shares have been held by the Participant for no less
than six months (or such other period as established from time to
time by the Committee or generally accepted accounting principles
in order to avoid variable grant date accounting for financial
accounting purposes), (B) partly in cash and partly in such
Shares or (C) subject to such rules as may be established by
the Committee, through the delivery of irrevocable instruments to a
broker to sell all or a portion of such Shares and deliver promptly
to the Company an amount equal to the aggregate Option Price for
the Shares being purchased. The Participant shall also be required
to pay all withholding taxes relating to the exercise.
(ii) Notwithstanding any other
provision of the Plan or this Agreement to the contrary, unless
there is an available exemption from such registration,
qualification or other legal requirements, the Option may not be
exercised prior to
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the completion of any registration
or qualifi
