Exhibit 10.26
CONFIDENTIAL SEPARATION and
RELEASE AGREEMENT
This Confidential Separation and Release
Agreement (this “Agreement”) is made by and between
Brian S. Dexheimer (“Executive”) and Seagate Technology
(US) Holdings, Inc. and Seagate Technology (collectively,
“Seagate”). Executive and Seagate are called the
“Parties” in this Agreement.
Recitals
A.
Executive has served as a Division
President of Seagate Technology and an employee of Seagate
Technology (US) Holdings, Inc..
B.
Executive’s employment with
Seagate terminated on July 3, 2009 as part of a reduction in
force, and the Parties have agreed to resolve all outstanding
issues pertaining to Executive’s employment in accordance
with the terms and conditions of this Agreement and the Seagate
Technology Executive Officer Severance and Change in Control (CIC)
Plan (the “Plan”). This Agreement shall be deemed
controlling to the extent its terms vary from those of the
Plan.
C.
Executive has had 60 days in which
to consider and execute this Agreement, and is advised to consult
an attorney about it. Executive acknowledges that once he executes
this Agreement, he will have an additional 7 days in which to
revoke his execution. Executive’s written notice of
revocation shall be delivered to Kenneth M. Massaroni either in
person or mailed by certified mail, return receipt requested, and
addressed to:
Kenneth M. Massaroni
Senior Vice President and General
Counsel
Seagate Technology
920 Disc Drive
Scotts Valley, California 95066
If Executive does not timely revoke his
execution of this Agreement, then the eighth day following the date
of his execution will be the “Effective Date” of this
Agreement.
D.
By executing this Agreement,
Executive represents that he understands the terms and effect of
this Agreement and enters into it knowingly and
voluntarily.
1
Based on these recitals, the Parties
agree as follows:
Terms
1.
Upon his execution of this
Agreement, Executive will tender to Kenneth M. Massaroni,
Seagate’s General Counsel, his written resignation as a
Division President of Seagate Technology effective July 3,
2009 (the “Resignation Date”). Executive’s
resignation letter shall be in the form attached hereto as
Exhibit “A”. Executive will also, as
requested, tender his resignation from all officer or director
positions that he may hold with Seagate Technology or any of its
subsidiaries and affiliates, with the effective dates of these
resignations to be as designated by Seagate; Executive agrees that
he will cooperate with Seagate in facilitating preparation of and
signing any documentation that may reasonably be required in
connection with formalizing such officer or director
resignations. On the Resignation Date, Seagate shall pay
Executive all unpaid wages owed through such date.
2.
For a period of five years following
the Resignation Date, Executive will comply, at Seagate’s
sole cost, with any reasonable request by Seagate or its attorneys
to assist and/or cooperate in connection with any pending or future
claim, negotiation, litigation, investigation, administrative
proceeding or other dispute involving Seagate or any of its
affiliates. Seagate will reimburse Executive for all reasonable,
approved out-of-pocket expenses incurred in providing such
assistance, including reasonable travel expenses directly incurred
in connection with such assistance and/or cooperation.
3.
Executive acknowledges that he has
had access to highly sensitive Seagate confidential, proprietary
and/or trade secret information, and agrees he shall not, either
before the Resignation Date or thereafter, disclose to any person
or entity any Seagate confidential, proprietary and/or trade secret
information, whether directly or indirectly, or use such
information in any way except in the course of providing services
for Seagate, as authorized in writing by Seagate, or as required to
be disclosed by applicable law. Executive acknowledges and
agrees that his duties and obligations under the Seagate At-Will
Employment, Confidential Information, and Invention Assignment
Agreement (other than the paragraph thereof entitled
“Arbitration” which is hereby deleted from such
agreement and shall be of no further force or effect) shall remain
in full force and effect and that he will adhere to them.
Executive acknowledges that he may not disclose to any person or
entity any Seagate confidential, proprietary and/or trade secret
information, whether directly or indirectly, after termination of
his employment except in the course of providing services for
Seagate, as authorized in writing by Seagate, or as required to be
disclosed by applicable law. Executive further acknowledges
that such information includes, but is not limited to, formulae,
customer lists, patterns, devices, inventions, processes,
compilations of information, files, records, documents, drawings,
specifications, and equipment
4.
Executive acknowledges and affirms
that he has returned to Seagate, or will return to Seagate on the
Effective Date: (i) all documents, records, procedures,
books, notebooks and other documentation in any form whatsoever,
including but not limited to written, audio, video or electronic,
containing any information pertaining to Seagate, including any and
all copies of such documentation then in Executive’s
possession or control, regardless of whether such documentation was
prepared or compiled by Executive, Seagate, other employees of
Seagate or any of their respective
2
representatives, agents or independent
contractors; and (ii) all equipment or tangible personal
property entrusted to Executive by Seagate.
5.
Executive represents and hereby
reaffirms that he has disclosed to Seagate any information in his
possession concerning any conduct involving Seagate or any of its
affiliates, that Executive has any reason to be believe may be
unlawful or may violate Seagate policies in any material
respect.
6.
Seagate will provide the following
compensation and benefits to Executive (or, in the event of
Executive’s death, to Executive’s surviving spouse, or,
if none, then to Executive’s estate) as consideration for his
execution of this Agreement and compliance with the terms and
conditions hereof:
a.
Seagate shall provide Executive,
within 15 business days after the later to occur of the Resignation
Date or Effective Date, a lump-sum payment of $2,332,887, subject
to applicable tax withholdings and deductions. Seagate will
not contest any claim Executive makes for public unemployment
compensation.
b.
Seagate has granted Executive
various equity-based awards (the “Equity Awards”) under
the Seagate Technology 2004 Stock Compensation Plan (the
“2004 Plan”) and/or the Seagate Technology 2001 Share
Option Plan (“2001 Plan”). All of the Equity
Awards granted to Executive that remained unvested as of the
Resignation Date are cancelled effective that same date.
Executive’s period in which to exercise any vested Equity
Award granted in the form of an option will be limited to three
months from the Resignation Date and shall be subject to all terms
and conditions set forth in the 2004 Plan or 2001 Plan, as
applicable, and the specific option agreement evidencing such
Equity Award. Executive’s Equity Awards granted in a
form other than options shall be subject to all terms and
conditions set forth in the 2004 Plan and the applicable award
agreements evidencing such Equity Awards.
c.
During the twelve month period
following the Resignation Date, Seagate will arrange for Executive
to receive outplacement assistance from Right Management
Consultants.
d.
Executive’s Seagate-provided
health insurance benefits coverage will cease on July 31,
2009; however, Executive will be given the opportunity to elect to
continue, at his own expense, his Seagate health insurance coverage
pursuant to COBRA. Further, Seagate will, within 15 business
days following the later to occur of the Resignation Date or
Effective Date, provide Executive with a lump-sum payment of
$29,944, subject to applicable withholdings, which amount is
intended to help defray Executive’s anticipated costs of
obtaining continued health insurance coverage pursuant to
COBRA.
7.
Executive, on behalf of himself, his
heirs, executors, administrators, successors, and assigns, fully
and forever releases and discharges Seagate, its
current,
3
former and future parents, subsidiaries,
affiliated companies, related entities, employee benefit plans, and
their fiduciaries, predecessors, successors, officers, directors,
members, managers, shareholders, agents, employees and assigns
(each a “Released Party”) from any and all claims,
causes of action, and liabilities up through the date of his
execution of this Agreement. The claims subject to this
release include, but are not limited to, those relating to his
employment with Seagate and/or any predecessor to Seagate and the
termination of such employment. All such claims (including
related attorneys’ fees and costs) are barred without regard
to whether those claims are based on any alleged breach of a duty
arising in statute, contract, or tort. This expressly
includes waiver and release of any rights and claims arising under
any and all laws, rules, regulations, and ordinances, including,
but not limited to: Title VII of the Civil Rights Act of
1964; the Older Workers Benefit Protection Act; the Americans With
Disabilities Act; the Age Discrimination in Employment Act; the
Fair Labor Standards Act; the National Labor Relations Act; the
Fami