Exhibit 10.1
SEPARATION, TRANSITION AND GENERAL RELEASE
AGREEMENT
This Separation, Transition and
General Release Agreement (this “Separation
Agreement”), is entered into this 31st day of July, 2007 (the
“Effective Date”), by and between Stephen D. Milligan
(“Milligan”) on the one hand, and Western Digital
Corporation (“WDC”), on behalf of itself and all other
corporations or other entities a majority of whose outstanding
voting stock or voting power is beneficially owned directly or
indirectly by WDC (each, a “WDC Subsidiary”), on the
other hand. WDC and all WDC Subsidiaries are referred to
collectively herein as “Western Digital.”
WHEREAS , Milligan has been
employed as Senior Vice President and Chief Financial Officer of
WDC; and
WHEREAS , Milligan and
Western Digital have mutually agreed to terminate Milligan’s
employment relationship with Western Digital upon the terms set
forth herein.
NOW, THEREFORE , in
consideration of the covenants undertaken and the releases
contained in this Separation Agreement, Milligan and Western
Digital agree as follows:
I.
Separation . Milligan and Western Digital
hereby agree that Milligan’s employment with Western Digital
and his service as Senior Vice President and Chief Financial
Officer of Western Digital, or in any other capacity for Western
Digital, shall terminate no later than August 31, 2007 (the
“Outside Termination Date”). Between the Effective Date
and the Outside Termination Date, (i) Milligan may resign his
employment with Western Digital, (ii) Western Digital may
release Milligan from further duty without Cause as defined in
Section 3.3 of the Western Digital Corporation Executive
Severance Plan (the “Executive Severance Plan”), or
(iii) Western Digital may terminate Milligan’s
employment for Cause as defined in Section 3.3 of the
Executive Severance Plan. The specific date on which
Milligan’s employment is terminated under the provisions of
this Section I shall be referred to herein as the
“Separation Date.”
II. Transition
Services and Compensation .
A. Transition
Services . From and after the Effective Date through
the Separation Date (the “Transition Period”), Milligan
shall continue to perform his usual and customary duties as Senior
Vice President and Chief Financial Officer and shall perform such
other tasks and duties as requested by the Chief Executive Officer
in order to transition the Chief Financial Officer role to
Milligan’s successor (the “Transition
Services”).
B. Transition Services
Compensation . During the Transition Period,
Milligan shall (i) continue to receive the salary in effect as
of the Effective Date, and (ii) be eligible for bonus
compensation under the WDC Incentive Compensation Plan (the
“ICP”) as set forth in Section III(B) below.
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C. Benefits
. During the Transition Period, Milligan shall be eligible
to receive employee health and welfare benefits accorded to
employees generally and other executives in comparable pay grades.
If, during the Transition Period, any such benefits are
discontinued or adjustments are made to benefits of employees
generally, then such discontinuation of or adjustments to benefits
will apply equally to the benefits provided to Milligan
hereunder.
D. Vacation
. Milligan will continue to accrue vacation during the
Transition Period in accordance with Western Digital’s
vacation accrual policies. All accrued and unused vacation earned
prior to the Separation Date will be paid to Milligan on or before
the Separation Date.
III. Severance Benefits
Upon Resignation . In the event that either
(i) Milligan resigns from employment with Western Digital
prior to the Outside Termination Date, or (ii) Milligan’s
employment is terminated by Western Digital other than for Cause
prior to the Outside Termination Date (as defined in the Executive
Severance Plan), and provided that Milligan fully complies with all
requirements under this Separation Agreement, Milligan shall be
entitled to receive the benefits set forth below, in lieu of and
not in addition to any benefits under any severance plan sponsored
by Western Digital. Milligan understands and agrees that it is an
express condition of the payment of any severance benefits under
this Section III, that he execute, deliver, and not revoke a
general release in the form attached hereto as
Exhibit A .
A. Severance
Pay . Western Digital shall pay Milligan a lump sum payment
of Nine Hundred Thousand Dollars and No Cents ($900,000.00), less
standard withholding and authorized deductions. Such payment will
be made within thirty (30) days after the Separation Date,
provided that Milligan has signed, delivered and not revoked a
general release in the form attached as Exhibit A
.
B. ICP Bonus .
For the bonus cycle ending June 29, 2007, Milligan shall
receive his full bonus under the ICP, at the level actually funded
by Western Digital with respect to the ICP, but in no event shall
such bonus be less than 100% of the performance target. This
payment shall be made at the same time payments are made to peer
employees under the ICP. In addition, Milligan shall receive a
payment equal to a pro-rata portion of Milligan’s bonus
opportunity under the ICP for the bonus cycle in which the
Separation Date occurs, with such pro-rata portion based on the
number of days in the applicable bonus cycle during which Milligan
was employed and assuming 100% of the performance targets are met
regardless of the actual funding by Western Digital. This payment
shall be paid in one lump-sum payment within thirty (30) days
after the Separation Date, provided that Milligan has signed,
delivered and not revoked a general release in the form attached as
Exhibit A .
C. Options .
During the Transition Period, Milligan’s stock options shall
continue to vest in accordance with their terms and conditions. On
the Separation Date, Milligan’s then outstanding stock
options will vest and become exercisable as if Milligan had
remained employed with Western Digital through February 29,
2008. Notwithstanding anything to the contrary herein, the
exercisability of Milligan’s
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outstanding
stock options shall continue to be governed by the stock incentive
plan and stock option agreement applicable to such options.
D. Restricted
Stock . During the Transition Period,
Milligan’s unvested shares of restricted stock shall continue
to vest in accordance with their terms and conditions. On the
Separation Date, Milligan’s then unvested shares of
restricted stock will vest as if Milligan had remained employed
with Western Digital through February 29, 2008.
E. Benefit
Continuation. Provided Milligan timely elects COBRA
continuation of his medical, dental, and/or vision coverage
existing as of the Separation Date, Western Digital shall pay to
Milligan a lump sum payment equal to the applicable COBRA premium
payments for such coverage for a period of eighteen
(18) months, less standard withholding and authorized
deductions.
F. Executive
Outplacement . Western Digital shall pay for Milligan to
receive outplacement services provided by a vendor chosen by
Western Digital for a period of up to twelve (12) months
following the Separation Date, subject to a maximum cost to Western
Digital of $15,000.
IV. Additional
Cash Severance . In the event that Milligan performs
his usual and customary duties as Chief Financial Officer with
respect to the filing of Western Digital’s Form 10-K with
respect to the fiscal year ending June 29, 2007, does not
resign prior to the Outside Termination Date, and is not terminated
for Cause (as defined in the Executive Severance Plan) by Western
Digital prior to the Outside Termination Date, Milligan, in lieu of
and not in addition to any compensation and benefits under any
severance plan sponsored by Western Digital, shall be entitled to
receive, in addition to the benefits set forth in
Section III(A)-(F) above, additional lump sum cash severance
in the amount of $500,000, less standard withholding and authorized
deductions. Such payment shall be made within thirty (30) days
after the Separation Date, provided that Milligan has signed,
delivered and not revoked a general release in the form attached as
Exhibit A .
V. Confidential
Information .
A. Confidential
Material . Milligan, in the performance of
Milligan’s services on behalf of Western Digital, has had
access to, received and been entrusted with confidential
information, including but in no way limited to development,
marketing, organizational, financial, management, administrative,
production, distribution and sales information, data,
specifications and processes presently owned or at any time in the
future developed by Western Digital or its agents or consultants,
or used presently or at any time in the future in the course of its
business that is not otherwise part of the public domain
(collectively, the “Confidential Material”). All such
Confidential Material is considered secret and was made available
to Milligan in confidence. Milligan represents that he has held all
such information confidential and will continue to do so.
B. Use and Return of
Confidential Material . Milligan shall not, directly
or indirectly for any reason whatsoever, disclose or use any such
Confidential
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Material except
in the course and scope of his employment with Western Digital,
unless such Confidential Material ceases (through no fault of
Milligan’s) to be confidential because it has become part of
the public domain or he is otherwise obligated to disclose such
information by the lawful order of any competent jurisdiction. All
records, files, drawings, documents, equipment and other tangible
items, wherever located, relating in any way to the Confidential
Material or otherwise to the business of Western Digital which
Milligan prepares, uses or encounters, shall be and remain the sole
and exclusive property of Western Digital and shall be included in
the Confidential Material. On or before the Separation Date,
Milligan shall promptly deliver to Western Digital any and all of
the Confidential Material, not previously delivered to Western
Digital, which may be or at any previous time has been in
Milligan’s possession or under Milligan’s
control.
C. Unfair
Competition . Milligan hereby acknowledges that the
sale or unauthorized use or disclosure of any of the Confidential
Material by any means whatsoever shall constitute “Unfair
Competition.” Milligan agrees that M
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