EXHIBIT 10.18
SEPARATION and RELEASE
AGREEMENT
This Separation and Release
Agreement (this “Agreement”) is made by and between
David A. Wickersham (“Executive”) and Seagate US LLC
and Seagate Technology (collectively, “Seagate”).
Executive and Seagate are called the “Parties” in this
Agreement.
Recitals
A. Executive has served as President
and Chief Operating Officer of Seagate Technology and an employee
of Seagate US LLC.
B. Executive’s employment with
Seagate terminated on January 12, 2009, 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 Restrictive Covenants
Agreement (the “Covenants Agreement”) attached hereto
as Exhibit “A.”
C. Executive has had 21 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.
Based on these recitals, the Parties agree as
follows:
Terms
1. Upon his execution of this
Agreement, Executive will tender a letter to Kenneth M. Massaroni,
Seagate’s General Counsel, confirming his resignation as
President and Chief Operating Officer of Seagate Technology
effective January 12, 2009 (the “Resignation
Date”). Executive’s resignation letter shall be in the
form attached hereto as Exhibit “B.” 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.
2. Effective January 16, 2009
Executive will begin a 12 month period as a consultant to Seagate,
which period (the “Consultant Period”) will last from
January 16, 2009 to January 16, 2010. During the
Consultant Period, Executive will perform only those services or
work on special projects that may be requested of him by the
Seagate Technology Board of Directors, its designee, or
Seagate’s Chief Executive Officer and performed in accordance
with the mutual agreement and convenience of Seagate and
Executive.
Seagate will pay Executive $375 per
hour for his consulting services during the Consultant Period,
subject to any applicable withholdings. Executive will invoice
Seagate and will be paid for his consulting services on a monthly
basis. Executive acknowledges his status as an independent
contractor during the Consultant Period, and agrees that except as
may otherwise be provided in this Agreement he shall not be
entitled to any other benefits, compensation, or programs available
to employees of Seagate or its related companies during the
Consultant Period Seagate will reimburse Executive for all
reasonable, approved out-of-pocket expenses incurred in providing
consulting services, including reasonable travel expenses directly
incurred in connection with providing these services.
3. 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.
4. 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 the Company, as authorized in writing by the Company,
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 shall remain in full force and effect and that
he will adhere to them.
2
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 the Company, as authorized in writing by the
Company, 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
5. 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 representatives, agents or
independent contractors; and (ii) all equipment or tangible
personal property entrusted to Executive by Seagate.
6. 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.
7. Seagate will provide the
following compensation and benefits to Executive as consideration
for his execution of this Agreement and compliance with the terms
and conditions hereof and of the Covenants Agreement:
|
|
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
$462,321, subject to applicable tax withholdings and deductions.
Seagate will not contest any claim Executive makes for public
unemployment compensation.
|
|
|
b.
|
Seagate shall
provide Executive, within 15 business days of January 16,
2010, a lump-sum payment of $746,679, subject to applicable tax
withholdings and deductions. Seagate’s payment of this amount
shall be conditioned and contingent upon Executive’s full
compliance, between the Resignation Date and January 16, 2010,
with all terms and conditions of both this Agreement and the
Covenants Agreement.
|
|
|
c.
|
Seagate has granted Executive
various equity-based awards (the “Equity Awards”) under
the Seagate Technology 2004 Stock Compensation Plan (the
“2004 Plan”) and 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 were
cancelled effective that same date. Executive’s period in
which to exercise any vested Equity Award granted in
|
3
|
|
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.
|
|
|
d.
|
During the
twelve month period following the Resignation Date, Seagate will
arrange for Executive to receive outplacement assistance from Right
Management Consultants.
|
|
|
e.
|
Executive’s Seagate-provided health
insurance benefits coverage will cease on January 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 $27,679, 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,
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
Family and Medical Leave Act; the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”); the
Workers’ Adjustment and Retraining Notification Act;
Sarbanes-Oxley Act; the Equal Pay Act of 1963; the California Fair
Employment and Housing Act, and any similar law of any other state
or governmental entity.
This release does not extend to, and
has no effect upon, (i) any benefits that have accrued, and to
which Executive may have become vested, under any employee benefit
plan within the meaning of ERISA sponsored by the Company,
(ii) reimbursement of travel or other business expenses
incurred by Executive in the ordinary course of business and
consistent with past practice and Seagate's policies and prior to
the Resignation Date, (iii) any rights that (but for this
release) Executive has to be indemnified (and advanced
4
expenses) arising under applicable law, the
articles of incorporation or bylaws or similar constituent
documents of Seagate, any indemnification agreement between
Executive and Seagate, or any directors’ and officers’
liability insurance policy of Seagate or its affiliates; and
(iv) Executive’s rights to the payments and benefits
specified in Paragraph 6 of this Agreement and enforcement of any
other obligation of Seagate to Executive under this Agreement.
Executive acknowledges that his receipt of the payment and benefits
described in Paragraph 6 of this Agreement will fully satisfy all
obligations owed to him by Seagate in connection with his
termination, whether as described in the Seagate Technology
Executive Officer Severance and Change in Control Plan, this
Agreement, or otherwise.
Executive acknowledges that nothing
in this release shall prohibit him from exercising legal rights
that are, as a matter of law, not subject to waiver such as:
(a) his rights under applicable workers’ compensation
laws; (b) his right, if any
