Exhibit 10.11
SEAGATE TECHNOLOGY EMPLOYEE STOCK
PURCHASE PLAN
(as amended and
restated)
1.
PURPOSE
The purpose of this Plan is to
provide an opportunity for Employees of Seagate Technology, a
Cayman Islands limited company (the “Corporation”) and
its Designated Subsidiaries, to purchase Common Stock of the
Corporation and thereby to have an additional incentive to
contribute to the prosperity of the Corporation. It is the
intention of the Corporation that the Plan qualify as an
“Employee Stock Purchase Plan” under Section 423 of the
U.S. Internal Revenue Code of 1986, as amended (the
“Code”), and the Plan shall be administered in
accordance with this intent. In addition, the Plan authorizes the
grant of options pursuant to sub-plans or special rules adopted by
the Administrator designed to achieve desired tax or other
objectives in particular locations outside of the United States,
which sub-plans shall not be required to comply with the
requirements of Section 423 of the Code or all of the specific
provisions of the Plan, including but not limited to terms relating
to eligibility, Offering Periods, Purchase Periods, or Purchase
Price.
2.
DEFINITIONS
2.1
“Applicable Law” shall mean the legal requirements
relating to the administration of an employee stock purchase plan
under applicable U.S. state corporate laws, U.S. federal and
applicable state securities laws, the Code, any stock exchange
rules or regulations and the applicable laws of any other country
or jurisdiction, as such laws, rules, regulations and requirements
shall be in place from time to time.
2.2
“Board” shall mean the Board of Directors of the
Corporation.
2.3
“Code” shall mean the U.S. Internal Revenue Code of
1986, as amended. Any reference to a section of the Code herein
shall be a reference to any successor or amended section of the
Code.
2.4
“Committee” shall mean the committee appointed by
the Board in accordance with Section 15 of the Plan.
2.5
“Common Stock” shall mean the Common Stock of the
Corporation, or any securities into which such Common Stock may be
converted.
2.6
“Compensation” shall mean an Employee’s base
cash compensation and commissions, but shall exclude such items as
allowances, differentials, bonuses or premiums such as those for
working shifts or overtime, payments for incentive compensation,
incentive payments, bonuses, income from the exercise or vesting or
the sale, exchange or other disposition of a compensatory stock
award granted to the Employee by the Corporation or a Designated
Subsidiary, and other forms
of extraordinary compensation. The
Committee shall have the authority to determine and approve all
forms of pay to be included in the definition of Compensation and
may change the definition on a prospective basis.
2.7
“Corporation” shall mean Seagate Technology, a
Cayman Islands limited company.
2.8
“Designated Subsidiary” shall mean a Subsidiary
that has been designated by the Committee in its sole discretion as
eligible to participate in the Plan with respect to its
Employees.
2.9
“Effective Date” shall mean the date on which the
registration statement on Form S-1 filed with the Securities and
Exchange Commission pursuant to Rule 424 under the Securities Act
for the initial public offering of the Corporation’s Common
Stock (the “Registration Statement”) becomes
effective.
2.10
“Employee” shall mean an individual classified as
an employee (within the meaning of Code Section 3401(c) and the
regulations thereunder) by the Corporation or a Designated
Subsidiary on the Corporation’s or such Designated
Subsidiary’s payroll records during the relevant
participation period. Employee shall not include individuals whose
employment is for less than the specific number of days determined
by the Committee as of the “Offering Date.”
Individuals classified as independent contractors,
consultants, advisers, or members of the Board or the board of
directors of a Designated Subsidiary are not considered
“Employees” by virtue of such station.
2.11
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934,
as amended.
2.12
“Fair Market Value” on a given date of
determination (i.e., an Offering Date or Purchase Date, as
appropriate) shall mean the value of Common Stock determined as
follows: (i) if the Common Stock is listed on any established stock
exchange or a national market system, its Fair Market Value shall
be the closing sales price for a share of the Common Stock (or the
closing bid, if no sales were reported) on the date of
determination as quoted on such exchange or system on which the
Common Stock has the highest average trading volume, as reported in
The Wall Street Journal or such other source as the
Committee deems reliable, or (ii) if the Common Stock is regularly
quoted by a recognized securities dealer but selling prices are not
reported, its Fair Market Value shall be the mean of the closing
bid and asked prices for the Common Stock on the date of such
determination, as reported in The Wall Street Journal or
such other source as the Committee deems reliable, or, (iii) in the
absence of an established market for the Common Stock, the Fair
Market Value thereof shall be determined in good faith by the
Board. For purposes of the Offering Date under the first Offering
Period, the Fair Market Value of a share of the Common Stock of the
Company shall be the initial price to the public as set forth in
the final prospectus included with the Registration
Statement.
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2.13
“Offering
Date” shall mean the first Trading Day of an Offering
Period under the Plan; provided that the Offering Date of the first
Offering Period will be the Effective Date.
2.14
“Offering
Period” shall mean a period of approximately twelve (12)
months during which an option granted pursuant to the Plan may be
exercised; provided, however, that effective for Offering Periods
commencing on or after February 1, 2006, the term “Offering
Period” shall mean a period of approximately six (6) months
during which an option granted pursuant to the Plan may be
exercised. For Offering Periods that commence prior to
February 1, 2006, the Plan shall be implemented by a series of
Offering Periods of approximately twelve (12) months duration, with
new Offering Periods commencing on the first Trading Day on or
after February 1 and August 1 of each year and ending on the last
Trading Day in the twelve month period ending on January 31 and
July 31 of the subsequent year; provided that the first Offering
Period shall commence on the Effective Date and shall end on the
last Trading Day on or before January 31, 2004. Effective for
Offering Periods that commence on or after February 1, 2006, the
Plan shall be implemented by a series of Offering Periods of
approximately six (6) months duration, with new Offering Periods
commencing on the first Trading Day on or after February 1 and
August 1 of each year and ending on the last Trading Day in the
six-month period ending on the next July 31 and January 31,
respectively. The duration and timing of Offering Periods may
be changed or modified by the Committee.
2.15
“Offering
Price” shall mean the Fair Market Value of a share of
Common Stock on the Offering Date of an Offering Period
.
2.16
“Officer” shall mean a person who is an officer of
the Corporation within the meaning of Section 16 of the Exchange
Act and the rules and regulations promulgated
thereunder.
2.17
“Participant” shall mean a participant in the Plan
as described in Section 5 of the Plan.
2.18
“Plan” shall mean this Employee Stock Purchase
Plan.
2.19
“Purchase
Date” shall mean the last Trading Day of each Purchase
Period.
2.20
“Purchase
Period” shall mean, with respect to Offering Periods that
commence on prior to February 1, 2006, the period of approximately
six (6) months commencing after one Purchase Date and ending with
the next Purchase Date, with new Purchase Periods commencing on the
first Trading Day on or after February 1 and August 1 of each year
and ending on the last Trading Day in the six-month period ending
on the next July 31 and January 31, respectively; provided that the
first Purchase Period shall commence on the Effective Date
and
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shall end at the completion of the
seventh complete calendar month following the Effective Date unless
otherwise determined by the Committee. The second Purchase Period
of the first Offering Period shall begin on the first Trading Day
following the end of the first Purchase Period and shall end on the
last Trading Day on or before January 31, 2004. Subsequent Purchase
Periods, if any, shall run consecutively after the termination of
the preceding Purchase Period. Notwithstanding anything
herein to the contrary, effective for Offering Periods that
commence on or after February 1, 2006, “Purchase
Period” shall have the same meaning as the term
“Offering Period.”
2.21
“Purchase
Price” shall have the meaning set out in Section
8.2.
2.22
“Securities Act” shall mean the U.S. Securities Act
of 1933, as amended.
2.23
“Shareowner” shall mean a record holder of shares
entitled to vote such shares of Common Stock under the
Corporation’s by-laws.
2.24
“Subsidiary” shall mean any entity treated as a
corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, within the meaning of
Code Section 424(f), whether or not such corporation now exists or
is hereafter organized or acquired by the Corporation or a
Subsidiary.
2.25
“Trading
Day” shall mean a day on which U.S. national stock
exchanges and the National Market System are open for trading and
the Common Stock is being publicly traded on one or more of such
markets.
3.
ELIGIBILITY
3.1
Any Employee employed by the Corporation or by any Designated
Subsidiary on an Offering Date shall be eligible to participate in
the Plan with respect to the Offering Period commencing on such
Offering Date. Committee may establish administrative rules
requiring that employment commence some minimum period (not to
exceed 30 days) prior to an Offering Date to be eligible to
participate with respect to the Offering Period beginning on that
Offering Date. The Committee may also determine that a designated
group of highly compensated Employees is ineligible to participate
in the Plan so long as the excluded category fits within the
definition of “highly compensated employee” in Code
Section 414(q).
3.2
No Employee may participate in the Plan if immediately after an
option is granted the Employee owns or is considered to own (within
the meaning of Code Section 424(d)) shares of Common Stock,
including Common Stock which the Employee may purchase by
conversion of convertible securities or under outstanding options
granted by the Corporation, possessing five percent (5%) or more of
the total combined voting power or value of all classes of stock of
the Corporation or of any of its Subsidiaries. All Employees who
participate in the
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Plan shall have the same rights and
privileges under the Plan, except for differences that may be
mandated by local law and that are consistent with Code Section
423(b)(5); provided that individuals participating in a sub-plan
adopted pursuant to Section 16 which is not designed to qualify
under Code section 423 need not have the same rights and privileges
as Employees participating in the Code section 423 Plan. Eligible
Employees may not participate in more than one Offering Period at a
time.
4.
OFFERING PERIODS AND PURCHASE
PERIODS
4.1
Offering Periods . With respect to Offering Periods
commencing prior to February 1, 2006, the Plan shall generally be
implemented by a series of twelve (12) month Offering Periods with
new Offering Periods commencing on the first Trading Day on or
after February 1 and August 1 and ending on the last Trading Day in
the twelve month periods ending on January 31 and July 31 of the
next calendar year, respectively, or on such other date as the
Committee shall determine. The first Offering Period shall commence
on the Effective Date and shall end on the last Trading Day on or
before January 31, 2004. With respect to Offering Periods
commencing on or after February 1, 2006, the Plan shall generally
be implemented by a series of six (6) month Offering Periods with
new Offering Periods commencing on the first Trading Day on or
after February 1 and August 1 and ending on the last Trading Day in
the six-month periods ending on the next July 31 and January 31,
respectively, or on such other date as the Committee shall
determine, and continuing thereafter until the Plan is terminated
pursuant to Section 14 hereof. The Committee shall have the
authority to change the frequency and/or duration of Offering
Periods (including the commencement dates thereof) with respect to
future offerings if such change is announced at least five (5) days
prior to the scheduled beginning of the first Offering Period to be
affected thereafter.
4.2
Purchase Periods . With respect to Offering Periods
commencing prior to February 1, 2006, each Offering Period shall
generally consist of two (2) consecutive Purchase Periods of six
(6) months’ duration, with new Purchase Periods commencing on
the first Trading Day on or after February 1 and August 1 of each
year and ending on the last Trading Day in the six-month period
ending on the next July 31 and January 31, respectively. With
respect to Offering Periods commencing on or after February 1,
2006, each Offering Period shall generally consist of one (1)
Purchase Period that runs concurrently with the Offering Period.
The last Trading Day of each Purchase Period shall be the
“Purchase Date” for such Purchase Period; provided that
the first Purchase Period shall commence on the Effective Date and
shall end at the completion of the seventh complete calendar month
following the Effective Date unless otherwise determined by the
Committee. The second Purchase Period of the first Offering Period
shall begin on the first Trading Day following the end of the first
Purchase Period and shall end on the last Trading Day on or before
January 31, 2004. Subsequent Purchase Periods, if any, shall run
consecutively after the termination of the preceding Purchase
Period. The Committee shall have the power to change
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the duration and/or frequency of
Purchase Periods with respect to future purchases if such change is
announced at least five (5) days prior to the scheduled beginning
of the first Purchase Period to be affected.
5.
PARTICIPATION
5.1
An Employee who is eligible to participate in the Plan in
accordance with its terms at the beginning of an Offering Period
shall automatically receive an option in accordance with Section
8.1 and may become a Participant by completing and submitting, on
or before the date prescribed by the Committee with respect to a
given Offering Period, a completed payroll deduction authorization
and Plan enrollment form provided by the Corporation or by
following an electronic or other enrollment process as prescribed
by the Committee. An eligible Employee may authorize payroll
deductions at the rate of any whole percentage of the
Employee’s Compensation, not to exceed ten percent (10%) of
the Employee’s Compensation (or such other percentage as the
Committee may establish from time to time before an Offering Date)
of such Employee’s Compensation on each payday during the
Offering Period. All payroll deductions will be held in a
general corporate account or a trust account. No interest shall be
paid or credited to the Participant with respect to such payroll
deductions. The Corporation shall maintain a separate bookkeeping
account for each Participant under the Plan and the amount of each
Participant’s payroll deductions shall be credited to such
account. A Participant may not make any additional payments into
such account, unless payroll deductions are prohibited under
Applicable Law, in which case the provisions of Section 5.2 of the
Plan shall apply.
5.2
Notwithstanding any other provisions of the Plan to the contrary,
in locations where local law prohibits payroll deductions, an
eligible Employee may elect to participate through contributions to
his or her account under the Plan in a form acceptable to the
Committee. In such event, any such Employees shall be deemed
to be participating in a sub-plan, unless the Committee otherwise
expressly provides that such Employees shall be treated as
participating in the Plan.
5.3
Under procedures and at times established by the Committee, a
Participant may withdraw from the Plan during a Purchase Period, by
completing and filing a new payroll deduction authorization and
Plan enrollment form with the Corporation or by following
electronic or other procedures prescribed by the Committee. If a
Participant withdraws from the Plan during a Purchase Period, his
or her accumulated payroll deductions will be refunded to the
Participant without interest, his or her right to participate in
the current Offering Period will be automatically terminated and no
further payroll deductions for the purchase of Common Stock will be
made during the Offering Period. The Committee may establish rules
pertaining to the timing of withdrawa
