exv10w7



 






Exhibit 10.7




MAXTOR CORPORATION

EXECUTIVE RETENTION AND SEVERANCE PLAN

Adopted October 30, 2003

Amended and Restated Effective March 7, 2005




     1. Establishment and Purpose of Plan



          1.1 Establishment. The Maxtor Corporation Executive Retention and Severance Plan (the “Plan”)
is hereby established by the Compensation Committee of the Board of Directors of Maxtor
Corporation, effective October 30, 2003 (the “Effective Date”).




          1.2 Purpose. The Company draws upon the knowledge, experience and advice of its Executive
Officers and Key Employees in order to manage its business for the benefit of the Company’s
stockholders. Due to the widespread awareness of the possibility of mergers, acquisitions and
other strategic alliances in the Company’s industry, the topics of compensation and other employee
benefits in the event of a Change in Control or other circumstances that may result in termination
of employment are issues in competitive recruitment and retention efforts. The Committee
recognizes that the possibility or pending occurrence of a Change in Control could lead to
uncertainty regarding the consequences of such an event and could adversely affect the Company’s
ability to attract, retain and motivate present and future Executive Officers and Key Employees.
The Committee has therefore determined that it is in the best interests of the Company and its
stockholders to provide for the continued dedication of its Executive Officers and Key Employees
notwithstanding the possibility or occurrence of a Change in Control or other circumstances that
may result in termination of employment by establishing this Plan to provide Executive Officers and
Key Employees with enhanced financial security in the event of a Change in Control or termination
of employment. The purpose of this Plan is to provide its Participants with specified compensation
and benefits in the event of a Change in Control or termination of employment under circumstances
specified herein.




     2. Definitions and Construction



          2.1 Definitions. Whenever used in this Plan, the following terms shall have the meanings set
forth below:




               (a) “Annual Bonus Rate” means an amount equal to the greatest of:



                    (1) the annual average of the aggregate of all annual incentive bonuses earned by the
Participant (whether or not actually paid) under the terms of the programs, plans or agreements
providing for such bonuses for the three (3) fiscal years of the Company immediately preceding the
fiscal year of the Change in Control; or



                    (2) the annual average of the aggregate of all annual incentive bonuses earned by the
Participant (whether or not actually paid) under the terms of the programs, plans or agreements
providing for such bonuses for the three (3) fiscal years of the Company



 









 





immediately preceding the fiscal year of the Participant’s Termination Upon a Change in
Control; or




                    (3) the aggregate of all annual incentive bonuses that would be earned by the Participant for
the fiscal year of the Participant’s Termination Upon a Change in Control at the targeted rate
(assuming attainment of 100% of all applicable performance goals) under the terms of the programs,
plans or agreements providing for such bonuses in which the Participant was participating
immediately prior to such termination of employment.



For this purpose, annual incentive bonuses shall not include signing bonuses or other nonrecurring
cash incentive awards.




               (b) “Base Salary Rate” means, as applicable, either:



                    (1) with respect to a Participant’s Involuntary Termination, the Participant’s monthly base
salary rate in effect immediately prior to such termination of employment (without giving effect to
any reduction in the Participant’s base salary rate constituting Good Reason); or



                    (2) with respect to a Participant’s Termination Upon a Change in Control, the greater of (i)
the Participant’s monthly base salary rate in effect immediately prior to such termination of
employment (without giving effect to any reduction in the Participant’s base salary rate
constituting Good Reason) or (ii) the Participant’s monthly base salary rate in effect immediately
prior to the applicable Change in Control.



For this purpose, base salary does not include any bonuses, commissions, fringe benefits, car
allowances, other irregular payments or any other compensation except base salary.




               (c) “Board” means the Board of Directors of the Company.



               (d) “Cause” means the occurrence of any of the following: (1) the Participant’s theft,
dishonesty, misconduct, breach of fiduciary duty for personal profit, or falsification of any
documents or records of the Company Group; (2) the Participant’s material failure to abide by the
code of conduct or other policies (including, without limitation, policies relating to
confidentiality and reasonable workplace conduct) of any member of the Company Group; (3)
misconduct by the Participant within the scope of Section 304 of the Sarbanes-Oxley Act of 2002 as
a result of which of the Company is required to prepare an accounting restatement; (4) the
Participant’s unauthorized use, misappropriation, destruction or diversion of any tangible or
intangible asset or corporate opportunity of a member of the Company Group (including, without
limitation, the Participant’s improper use or disclosure of the confidential or proprietary
information of a member of the Company Group); (5) any intentional act by the Participant which has
a material detrimental effect on reputation or business of a member of the Company Group; (6) the
Participant’s repeated failure or inability to perform any reasonable assigned duties after written
notice from a member of the Company Group of, and a reasonable opportunity to cure, such failure or
inability; (7) any material breach by the Participant of any employment, non-disclosure,
non-competition, non-solicitation or other similar agreement between the Participant and a member
of the Company Group, which breach is not cured pursuant to the terms of such agreement; or (8) the
Participant’s conviction (including any plea



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of guilty or nolo contendere) of any criminal act involving fraud, dishonesty,
misappropriation or moral turpitude, or which impairs the Participant’s ability to perform his or
her duties with a member of the Company Group.




               (e) “Change in Control” means the occurrence of any of the following:



                    (1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than a trustee or other fiduciary holding securities of the Company under an employee benefit plan
of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of the Company representing more than forty
percent (40%) of (i) the outstanding shares of common stock of the Company or (ii) the total
combined voting power of the Company’s then-outstanding securities entitled to vote generally in
the election of directors;



                    (2) the Company is party to a merger, consolidation or similar corporation transaction, or
series of related transactions, which results in the holders of the voting securities of the
Company outstanding immediately prior to such transaction(s) failing to retain immediately after
such transaction(s) direct or indirect beneficial ownership of more than fifty percent (50%) of the
total combined voting power of the securities entitled to vote generally in the election of
directors of the Company or the surviving entity outstanding immediately after such transaction(s);



                    (3) the sale or disposition of all or substantially all of the Company’s assets or
consummation of any transaction, or series of related transactions, having similar effect (other
than a sale or disposition to one or more subsidiaries of the Company); or



                    (4) a change in the composition of the Board within any consecutive two-year period as a
result of which fewer than a majority of the directors are Incumbent Directors;



provided, however, that a Change in Control shall be deemed not to include a transaction
described in subsections (1) or (2) of this Section in which a majority of the members of the board
of directors of the continuing, surviving or successor entity, or parent thereof, immediately after
such transaction is comprised of Incumbent Directors.




               (f) “Change in Control Period” means a period:



                    (1) commencing on the first to occur of (i) the date of the first public announcement of a
definitive agreement that would result in a Change in Control (even though still subject to
approval by the Company’s stockholders and other conditions and contingencies) or (ii) the
consummation of a Change in Control, and



                    (2) ending on the first to occur of (i) the first public announcement by the Company of the
termination of such definitive agreement, provided that the Company does not, within three (3)
months thereafter, enter into a discussion with the same party or parties that leads to any such
definitive agreement or (ii) the date occurring twenty-four (24) months following the date of the
consummation of such Change in Control.



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               (g) “Chief Executive Officer” means an Executive Officer serving as the Company’s Chief
Executive Officer immediately prior to the first to occur of (1) a condition constituting Good
Reason with respect to such individual, (2) such individual’s termination of employment with the
Company Group or (3) the consummation of a Change in Control.



               (h) “COBRA” means the group health plan continuation coverage provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 and any applicable regulations promulgated thereunder.



               (i) “Code” means the Internal Revenue Code of 1986, as amended, or any successor thereto and
any applicable regulations promulgated thereunder.



               (j) “Committee” means the Compensation Committee of the Board.



               (k) “Company” means Maxtor Corporation, a Delaware corporation, and, following a Change in
Control, a Successor that agrees to assume all of the rights and obligations of the Company under
this Plan or a Successor which otherwise becomes bound by operation of law under this Plan.



               (l) “Company Group” means the group consisting of the Company and each present or future
parent and subsidiary corporation or other business entity thereof.



               (m) “Current Year Bonus” means any annual incentive bonus that might be earned by the
Participant under the terms of the program, plan or agreement providing for such bonus in which the
Participant is participating for the fiscal year of the Company in which the Participant’s
employment terminates. For this purpose, an annual incentive bonus shall not include a signing
bonus or other nonrecurring cash incentive award.



               (n) “Employee Exit Interview Declaration” means the Employee Exit Interview Declaration
substantially in the form attached hereto as Exhibit H.



               (o) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



               (p) “Executive Officer” means an individual appointed by the Board as an executive officer of
the Company subject to Section 16 of the Exchange Act and serving in such capacity both upon
becoming a Participant (unless then serving as a Key Employee) and immediately prior to the first
to occur of (1) a condition constituting Good Reason with respect to such individual, (2) such
individual’s termination of employment with the Company Group or (3) the consummation of a Change
in Control.



               (q) “Good Reason” means:



                    (1) The occurrence during a Change in Control Period of any of the following conditions
without the Participant’s informed written consent, which condition(s) remain(s) in effect twenty
(20) days after written notice to the Company from the Participant of such condition(s):



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                         (i) a material, adverse change in the Participant’s position, duties, substantive functional
responsibilities or reporting responsibilities, causing the Participant’s position to be of
materially lesser rank or responsibility within the Company or an equivalent business unit of its
parent; or



                         (ii) a decrease in the Participant’s base salary rate or a decrease in the Participant’s
target bonus amount (subject to applicable performance requirements with respect to the actual
amount of bonus compensation earned by the Participant); or



                         (iii) any failure by the Company Group to (i) continue to provide the Participant with the
opportunity to participate, on terms no less favorable than those in effect for the benefit of any
employee group which customarily includes a person holding the employment position or a comparable
position with the Company Group then held by the Participant, in any benefit or compensation plans
and programs, including, but not limited to, the Company Group’s life, disability, health, dental,
medical, savings, profit sharing, stock purchase and retirement plans, if any, in which the
Participant was participating immediately prior to such failure, or their equivalent, or (ii)
provide the Participant with all other fringe benefits (or their equivalent) from time to time in
effect for the benefit of any employee group which customarily includes a person holding the
employment position or a comparable position with the Company Group then held by the Participant;
or



                         (iv) the relocation of the Participant’s work place for the Company Group to a location that
increases the regular commute distance between the Participant’s residence and work place by more
than thirty (30) miles (one-way), or, following the consummation of a Change in Control, the
imposition of business travel requirements substantially more demanding of the Participant than
such travel requirements existing immediately prior to the Change in Control; or



                         (v) following the consummation of a Change in Control, any material breach of this Plan by the
Company Group with respect to the Participant.



                    (2) The occurrence, other than during a Change in Control Period, of the following condition
without the Participant’s informed written consent, which condition remains in effect twenty (20)
days after written notice to the Company from the Participant of such condition: a decrease in the
Participant’s base salary rate or a decrease in the Participant’s target bonus amount (subject to
applicable performance requirements with respect to the actual amount of bonus compensation earned
by the Participant), unless such decrease is equivalent in amount and duration to decreases made
concurrently for all other employees of the Company Group with responsibilities, organizational
level and title comparable to those of the Participant. For the avoidance of doubt, the conditions
described in Section 2.1(q)(1) above, such as, for example, a material adverse change in the
Participant’s position or duties, shall not be sufficient to constitute “Good Reason” if such
condition occurs other than during a Change in Control Period.



The existence of Good Reason shall not be affected by the Participant’s temporary incapacity due to
physical or mental illness not constituting a Permanent Disability. The Participant’s




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continued employment for a period not exceeding sixty (60) days following the occurrence of any
condition constituting Good Reason shall not constitute consent to, or a waiver of rights with
respect to, such condition. For the purposes of any determination regarding the existence of Good
Reason, any claim by the Participant that Good Reason exists shall be presumed to be correct unless
the Company establishes to the Board that Good Reason does not exist, and the Board, acting in good
faith, affirms such determination by a vote of not less than two-thirds of its entire membership
(excluding the Participant if the Participant is a member of the Board).




               (r) “Incumbent Director” means a director who either (1) is a member of the Board as of the
Effective Date, or (2) is elected, or nominated for election, to the Board with the affirmative
votes of at least a majority of the Incumbent Directors at the time of such election or nomination,
but (3) who was not elected or nominated in connection with an actual or threatened proxy contest
relating to the election of directors of the Company.



               (s) “Involuntary Termination” means the occurrence of either of the following events other
than during a Change in Control Period:



                    (1) termination by the Company Group of the Participant’s employment for any reason other than
Cause; or



                    (2) the Participant’s resignation for Good Reason (as described in Section 2.1(p)(2)) from
employment with the Company Group, provided that such resignation occurs within sixty (60) days
following the occurrence of the condition constituting Good Reason;



provided, however, that Involuntary Termination shall not include any termination of the
Participant’s employment which is (i) for Cause, (ii) a result of the Participant’s death or
Permanent Disability, or (iii) a result of the Participant’s voluntary termination of employment
other than for Good Reason.




               (t) “Key Employee” means an individual, other than an Executive Officer, who has been
designated by the Committee as eligible to participate in the Plan.



               (u) “Option” means any option to purchase shares of the capital stock of the Company or of any
other member of the Company Group granted to a Participant by the Company or any other Company
Group member prior to a Change in Control, including any such option which is assumed by, or for
which a replacement option is substituted by, the Successor or any other member of the Company
Group in connection with the Change in Control.



               (v) “Participant” means (1) each Executive Officer and (2) each Key Employee designated by the
Committee to participate in the Plan, provided in either case that such individual has executed a
Participation Agreement.



               (w) “Participation Agreement” means an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan in the form attached hereto as Exhibit A or in such
other form as the Committee may approve from time to time; provided, however, that, after a
Participation Agreement has been entered into between a Participant and



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the Company, it may be modified only by a supplemental written agreement executed by both the
Participant and the Company. The terms of such forms of Participation Agreement need not be
identical with respect to each Participant. For example, a Participation Agreement may limit the
duration of a Participant’s participation in the Plan or may modify the definition of “Change in
Control” with respect to a Participant.




               (x) “Permanent Disability” means a Participant’s incapacity due to bodily injury or disease
which (1) prevents the Participant from engaging in the full-time performance of the Participant’s
duties for a period of six (6) consecutive months and (2) will, in the opinion of a qualified
physician, be permanent and continuous during the remainder of the Participant’s life.



               (y) “Prior Year Annual Bonus” means the aggregate of all annual incentive bonuses earned by
the Participant (whether or not actually paid) under the terms of the programs, plans or agreements
providing for such bonuses for the fiscal year of the Company immediately preceding the fiscal year
of the Participant’s termination of employment. For this purpose, an annual incentive bonus shall
not include a signing bonus or other nonrecurring cash incentive award.



               (z) “Release” means a general release of all known and unknown claims against the Company and
its affiliates and their stockholders, directors, officers, employees, agents, successors and
assigns substantially in the form attached hereto as Exhibit B (“General Release of Claims
[Age 40 and over]”) or Exhibit C (“General Release of Claims [Under age 40]”), whichever is
applicable, with any modifications thereto determined by legal counsel to the Company to be
necessary or advisable to comply with applicable law or to accomplish the intent of Section 9
(Exclusive Remedy) hereof.



               (aa) “Restricted Stock” means any compensatory award of shares of the capital stock of the
Company or of any other member of the Company Group granted to a Participant by the Company or any
other Company Group member prior to a Change in Control or acquired upon the exercise of an Option
granted prior to a Change in Control, including any shares issued in exchange for any such shares
by a Successor or any other member of the Company Group in connection with a Change in Control.



               (bb) “Restricted Stock Units” means any compensatory award of rights to receive shares of the
capital stock or cash in an amount measured by the value of shares of the capital stock of the
Company or of any other member of the Company Group granted to a Participant by the Company or any
other Company Group member prior to a Change in Control or acquired upon the exercise of an Option
granted prior to a Change in Control, including any such rights issued in exchange for any such
rights by a Successor or any other member of the Company Group in connection with a Change in
Control.



               (cc) “Restrictive Covenants Agreement” means an agreement between a Participant and the
Company substantially in the form attached hereto as Exhibit D (“Restrictive Covenants
Agreement [CEO Involuntary Termination]”), Exhibit E (“Restrictive Covenants Agreement
[Executive Officer/Key Employee Involuntary Termination]”), Exhibit F (“Restrictive
Covenants Agreement [CEO Termination Upon a Change in Control]”) or



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Exhibit G (“Restrictive Covenants Agreement [Executive Officer/Key Employee
Termination Upon a Change in Control]”), whichever is applicable, with any modifications thereto
determined by legal counsel to the Company to be necessary or advisable to comply with applicable
law.




               (dd) “Severance Benefit Period” means (1) with respect to a Participant who is the Chief
Executive Officer, a period of twenty-four (24) months, (2) with respect to a Participant who is an
Executive Officer (other than the Chief Executive Officer), a period of twelve (12) months and (3)
with respect to a Participant who is a Key Employee, a period determined by the Committee and set
forth in the Participant’s Participation Agreement.



               (ee) “Severance Benefit Period Extension” means (1) with respect to a Participant who is an
Executive Officer (including the Chief Executive Officer), a period of twelve (12) months and (2)
with respect to a Participant who is a Key Employee, a period determined by the Committee and set
forth in the Participant’s Participation Agreement.



               (ff) “Successor” means any successor in interest to substantially all of the business and/or
assets of the Company.



               (gg) “Target Bonus Rate” means the aggregate of all annual incentive bonuses (excluding
signing bonuses or other nonrecurring cash incentive awards) that would be earned by the
Participant for the fiscal year of the Participant’s Involuntary Termination at the targeted rate
(assuming attainment of 100% of all applicable performance goals) under the terms of the programs,
plans or agreements providing for such bonuses in which the Participant was participating
immediately prior to such termination of employment.



               (hh) “Termination in the Absence of a Change in Control” means any termination of the
Participant’s employment with the Company Group which is not a Termination Upon a Change in
Control.



               (ii) “Termination Upon a Change in Control” means the occurrence of any of the following
events:



                    (1) termination by the Company Group of the Participant’s employment for any reason other than
Cause during a Change in Control Period; or



                    (2) the Participant’s resignation for Good Reason from employment with the Company Group
during a Change in Control Period, provided that such resignation occurs within sixty (60) days
following the occurrence of the condition constituting Good Reason; or



                    (3) with respect only to the Chief Executive Officer, the Chief Executive Officer’s
resignation for any reason or no reason from employment with the Company Group during the period
commencing upon the consummation of a Change in Control and ending on the date occurring thirty
(30) days following the date of consummation of such Change in Control;



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provided, however, that Termination Upon a Change in Control shall not include any
termination of the Participant’s employment which is (i) for Cause, (ii) a result of the
Participant’s death or Permanent Disability, or (iii) a result of the Participant’s voluntary
termination of employment other than for Good Reason (except as provided in subsection (3) above
with respect to the Chief Executive Officer).




          2.2 Construction. Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated
by the context, the singular shall include the plural and the plural shall include the singular.
Use of the term “or” is not intended to be exclusive, unless the context clearly requires
otherwise.




     3. Eligibility and Participation



          Each Executive Officer shall be eligible to become a Participant in the Plan. The Committee
shall designate those Key Employees who shall be eligible to become Participants in the Plan. To
become a Participant, an Executive Officer or eligible Key Employee must execute a Participation
Agreement.




     4. Termination in the Absence of a Change in Control.



          In the event of a Participant’s Termination in the Absence of a Change in Control, the
Participant shall be entitled to receive the applicable compensation and benefits described in this
Section 4. The provision, time and manner of payment or distribution of all such compensation and
benefits shall be subject to, limited by and construed in accordance with the requirements of
Section 409A of the Code, to the extent applicable.




          4.1 Involuntary Termination. If the Participant’s Termination in the Absence of a Change in
Control constitutes an Involuntary Termination, the Participant shall be entitled to receive:




               (a) Accrued Obligations.



                    (1) all salary, commissions and accrued but unused vacation earned through the date of the
Participant’s termination of employment;



                    (2) reimbursement within ten (10) business days of submission of proper expense reports of all
expenses reasonably and necessarily incurred by the Participant in connection with the business of
the Company Group prior to his or her termination of employment; and



                    (3) the benefits, if any, under any Company Group retirement plan, nonqualified deferred
compensation plan, Option, Restricted Stock, Restricted Stock Unit, stock purchase or other
stock-based compensation plan or agreement, health benefits plan or other Company Group benefit
plan to which the Participant may be entitled pursuant to the terms of such plans or agreements;



provided, however, that the Participant shall not be entitled to receive any Prior Year
Annual




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Bonus (except as provided in accordance with Section 4.1(b) below), Current Year Bonus or any
portion(s) thereof which, as of the date of the Participant’s Involuntary Termination, remain
unpaid and for which the final payment date has not yet occurred under the terms of the program,
plan or agreement providing for such bonus.




               (b) Severance Benefits. Provided that the Participant (i) executes and does not revoke the
Release applicable to such Participant at or following the time of the Participant’s Involuntary
Termination, (ii) executes the Restrictive Covenants Agreement applicable to such Participant and
(iii) complies with the Company’s exit procedures and executes an Employee Exit Interview
Declaration affirming such compliance, the Participant shall be entitled to receive the following
severance payments and benefits:



                    (1) Prior Year Annual Bonus. The Participant shall be entitled to receive any Prior Year
Annual Bonus or portion thereof which the Committee determines has been earned by the Participant
as of the date of the Participant’s termination of employment under the terms of the programs,
plans or agreements providing for such bonus, but which remains unpaid as of such date. Any such
earned Prior Year Annual Bonus shall be paid in cash on the date on which such amount becomes
payable under the terms of the applicable program, plan or agreement.



                    (2) Cash Severance Payments. The Participant shall be entitled to receive an amount equal to
the sum of (x) the Participant’s Base Salary Rate multiplied by the number of months in the
Severance Benefit Period applicable to the Participant and (y) fifty percent (50%) of the
Participant’s Target Bonus Rate. The amount determined in accordance with this subsection shall be
apportioned and paid (less applicable tax withholding) in approximately equal installments
commencing on the first regular payday of the Company following the last to occur of (i) the
Participant’s termination of employment, (ii) the last day on which the Participant may revoke the
Release in accordance with its terms, (iii) the Participant’s execution of the Restrictive
Covenants Agreement or (iv) the Participant’s execution of the Employee Exit Interview Declaration
and continuing on each successive regular payday during the remainder of the Severance Benefit
Period applicable to the Participant.



                    (3) Health Benefits. For the period commencing immediately following the Participant’s
termination of employment and continuing for the duration of the Severance Benefit Period
applicable to the Participant, the Company shall arrange to provide the Participant and his or her
dependents with health benefits (including medical and dental) substantially similar to those
provided to the Participant and his or her dependents immediately prior to the date of such
termination of employment. Such benefits shall be provided to the Participant at the same premium
cost to the Participant and at the same coverage level as in effect as of the Participant’s
termination of employment; provided, however, that the Participant shall be subject to any change
in the premium cost and/or level of coverage applicable generally to all employees holding the
position or comparable position with the Company Group which the Participant held immediately prior
to termination of employment. The Company may satisfy its obligation to provide a continuation of
health benefits by paying that portion of the Participant’s premiums required under COBRA that
exceed the amount of premiums that the Participant would have been required to pay for continuing
coverage had he or she continued in employment. If the Company is not reasonably able to continue
such coverage under the



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Company’s health benefit plans, the Company shall provide substantially equivalent coverage
under other sources or will reimburse (without a tax gross-up) the Participant for premiums (in
excess of the Participant’s premium cost described above) incurred by the Participant to obtain his
or her own such coverage. If the Participant and/or the Participant’s dependents become eligible
to receive such coverage under another employer’s health benefit plans during the applicable
Severance Benefit Period, the Participant shall report such eligibility to the Company, and the
Company’s obligations under this subsection shall be secondary to the coverage provided by such
other employer’s plans. For the balance of any period in excess of the applicable Severance
Benefit Period during which the Participant is entitled to continuation coverage under COBRA, the
Participant shall be entitled to maintain coverage for himself or herself and the Participant’s
eligible dependents at the Participant’s own expense.




               (c) Effect of Breach of Restrictive Covenants Agreement.



                    (1) Chief Executive Officer Breach of Covenant Not to Compete. If the Board, acting in good
faith, determines by a vote of not less than two-thirds of its entire membership, that any action
or failure to act by a Chief Executive Officer Participant constitutes a material breach of the
Covenant Not to Compete set forth in the Restrictive Covenants Agreement executed by such
Participant, the Company may, in its sole discretion, terminate any further provision of severance
payments and benefits under Section 4.1(b) and require the Participant to promptly repay to the
Company any severance payments or benefits under Section 4.1(b) provided to the Participant
following the date of such material breach. The Company shall be entitled, at its sole discretion,
to set off any amounts that the Participant is required to repay to the Company pursuant to this
Section 4.1(c)(1) against any amount owed to the Participant by the Company, including any amount
owed to the Participant pursuant to Section 4.1(a).



                    (2) Other Breaches. In the event that it is determined by a court of competent jurisdiction
that any action or failure to act by a Participant constitutes a material breach of the Restrictive
Covenants Agreement executed by such Participant, then the Company may, in its sole discretion take
any of the actions described in Section 4.1(c)(1) above.



          4.2 Voluntary Resignation; Termination for Cause. If the Participant’s Termination in the
Absence of a Change in Control results from his or her voluntary resignation or termination for
Cause from employment with the Company Group, the Participant shall be entitled to receive:




               (a) all salary, commissions and accrued but unused vacation earned through the date of the
Participant’s termination of employment;



               (b) reimbursement within ten (10) business days of submission of proper expense reports of all
expenses reasonably and necessarily incurred by the Participant in connection with the business of
the Company Group prior to his or her termination of employment; and



               (c) the benefits, if any, under any Company Group retirement plan, nonqualified deferred
compensation plan, Option, Restricted Stock, Restricted Stock Unit, stock



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purchase or other stock-based compensation plan or agreement, health benefits plan or other
Company Group benefit plan to which the Participant may be entitled pursuant to the terms of such
plans or agreements;




provided, however, that the Participant shall not be entitled to receive any Prior Year
Annual Bonus, Current Year Bonus or any portion(s) thereof which, as of the date of the
Participant’s voluntary resignation or termination for Cause from employment, remain unpaid and for
which the final payment date has not yet occurred under the terms of the program, plan or agreement
providing for such bonus.




          4.3 Other Termination. If the Participant’s Termination in the Absence of a Change in Control
results from any reason other than Involuntary Termination, voluntary resignation or termination
for Cause, the Participant shall be entitled to receive:




               (a) any Prior Year Annual Bonus or portion thereof which the Committee determines has been
earned by the Participant as of the date of the Participant’s termination of employment under the
terms of the programs, plans or agreements providing for such bonus, but which remains unpaid as of
such date; and any such earned Prior Year Annual Bonus shall be paid in cash on the date on which
such amount becomes payable under the terms of the applicable program, plan or agreement;



               (b) all salary, commissions and accrued but unused vacation earned through the date of the
Participant’s termination of employment;



               (c) reimbursement within ten (10) business days of submission of proper expense reports of all
expenses reasonably and necessarily incurred by the Participant in connection with the business of
the Company Group prior to his or her termination of employment; and



               (d) the benefits, if any, under any Company Group retirement plan, nonqualified deferred
compensation plan, Option, Restricted Stock, Restricted Stock Unit, stock purchase or other
stock-based compensation plan or agreement, health benefits plan or other Company Group benefit
plan to which the Participant may be entitled pursuant to the terms of such plans or agreements;



provided, however, that the Participant shall not be entitled to receive any Current Year
Bonus or any portion thereof which, as of the date of the Participant’s termination of employment,
remains unpaid and for which the final payment date has not yet occurred under the terms of the
program, plan or agreement providing for such bonus.




     5. Treatment of Equity Awards Upon a Change in Control



               5.1 Options. Notwithstanding any provision to the contrary contained in any plan or agreement
evidencing an Option held by a Participant, in the event of a Change in Control in which the
surviving, continuing, successor, or purchasing corporation or other business entity or parent
thereof, as the case may be (the “Acquiror”), does not assume the Company’s rights and obligations
under the then-outstanding Options held by the Participant or substitute for such Options
substantially equivalent options for the Acquiror’s stock, then the



-12-









 





vesting and exercisability of each such Option shall be accelerated in full effective as of
the date ten (10) days prior to but conditioned upon the consummation of the Change in Control,
provided that, except as otherwise set forth in Section 6 below, the Participant remains an
employee or other service provider with the Company Group immediately prior to the Change in
Control.




               5.2 Restricted Stock and Restricted Stock Units. Notwithstanding any provision to the
contrary contained in any plan or agreement evidencing Restricted Stock or Restricted Stock Units
held by a Participant, such Restricted Stock and Restricted Stock Units shall vest in full upon the
consummation of a Change in Control, provided that, except as otherwise set forth in Section 6
below, the Participant remains an employee or other service provider with the Company Group
immediately prior to the Change in Control.



               5.3 Other Equity Awards. Except as set forth in Sections 5.1 and 5.2 above, the treatment of
stock-based compensation upon the consummation of a Change in Control shall be determined in
accordance with the terms of the plans or agreements providing for such awards.



     The provisions of this Section 5 shall be subject to, limited by and construed in accordance
with the requirements of Section 409A of the Code, to the extent applicable.



     6. Termination Upon a Change in Control



          In the event of a Participant’s Termination Upon a Change in Control, the Participant shall be
entitled to receive the compensation and benefits described in this Section 6; provided,
however, that if the date of the Participant’s termination of employment occurs prior to the
consummation of the applicable Change in Control, then (i) the Participant’s termination of
employment shall be treated initially as an Involuntary Termination, and the Participant shall be
entitled to receive the compensation and benefits determined in accordance with Section 4.1,
subject to satisfaction of the conditions set forth in such Section; and (ii) upon the consummation
of such Change in Control, if at all, the Participant shall cease to receive compensation and
benefits determined in accordance with Section 4.1 and shall instead be entitled to receive the
compensation and benefits described in this Section 6 (with the date of the consummation of the
Change of Control being treated as the date of termination of employment for the purpose
determining the time at which payments due within a ten (10) business day period must be made),
against which shall be credited the compensation and benefits previously provided in accordance
with Section 4.1. The provision, time and manner of payment or distribution of all such
compensation and benefits shall be subject to, limited by and construed in accordance with the
requirements of Section 409A of the Code, to the extent applicable.




          6.1 Accrued Obligations. The Participant shall be entitled to receive:




               (a) all salary, commissions and accrued but unused vacation earned through the date of the
Participant’s termination of employment;



               (b) reimbursement within ten (10) business days of submission of proper expense reports of all
expenses reasonably and necessarily incurred by the Participant in



-13-









 





connection with the business of the Company Group prior to his or her termination of
employment; and




               (c) the benefits, if any, under any Company Group retirement plan, nonqualified deferred
compensation plan, stock purchase or other stock-based compensation plan or agreement (other than
any such plan or agreement pertaining to Options, Restricted Stock or Restricted Stock Units or
other stock-based compensation whose treatment is prescribed by Section 6.2(e) below), health
benefits plan or other Company Group benefit plan to which the Participant may be entitled pursuant
to the terms of such plans or agreements.



          6.2 Severance Benefits. Provided that the Participant both (i) executes and does not revoke
the Release applicable to such Participant at or following the time of the Participant’s
Termination Upon a Change in Control and (ii) complies with the Company’s exit procedures and
executes an Employee Exit Interview Declaration affirming such compliance, the Participant shall be
entitled to receive the following severance payments and benefits:




               (a) Prior Year Annual Bonus. Within ten (10) business days following the last to occur of (i)
the Participant’s termination of employment, (ii) the last day on which the Participant may revoke
the Release in accordance with its terms or (iii) the Participant’s execution of the Employee Exit
Interview Declaration, the Company shall pay to the Participant in a lump sum cash payment any
Prior Year Annual Bonus or portion thereof which the Committee determines has been earned by the
Participant as of the date of the Participant’s termination of employment under the terms of the
programs, plans or agreements providing for such bonus, but which remains unpaid as of such date.



               (b) Prorated Current Year Bonus. Within ten (10) business days following the last to occur of
(i) the Participant’s termination of employment, (ii) the last day on which the Participant may
revoke the Release in accordance with its terms or (iii) the Participant’s execution of the
Employee Exit Interview Declaration, the Company shall pay to the Participant in a lump sum cash
payment an amount equal to the product of (1) the aggregate of all Current Year Bonuses that would
be earned by the Participant at the targeted rate (assuming attainment of 100% of all applicable
performance goals) under the terms of the programs, plans or agreements providing for such bonuses
in which the Participant was participating for the fiscal year of the Participant’s termination of
employment and (2) a ratio, the numerator of which is the number of calendar days elapsed from the
beginning of the Company’s current fiscal year through the date of the Participant’s termination of
employment and the denominator of which is 365.



               (c) Cash Severance Payment. Within ten (10) business days following the last to occur of (i)
the Participant’s termination of employment, (ii) the last day on which the Participant may revoke
the Release in accordance with its terms or (iii) the Participant’s execution of the Employee Exit
Interview Declaration, the Company shall pay to the Participant in a lump sum cash payment an
amount equal to the sum of (1) the Participant’s Base Salary Rate multiplied by the number of
months in the Severance Benefit Period applicable to the Participant and (2) the Participant’s
Annual Bonus Rate multiplied by a ratio, the numerator of which is the number of months in the
Severance Benefit Period applicable to the Participant and the denominator of which is twelve (12).



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               (d) Health, Life Insurance and Long-Term Disability Benefits. For the period commencing
immediately following the Participant’s termination of employment and continuing for the duration
of the Severance Benefit Period applicable to the Participant, the Company shall arrange to provide
the Participant and his or her dependents with health (including medical and dental), life
insurance and long-term disability benefits substantially similar to those provided to the
Participant and his or her dependents immediately prior to the date of such termination of
employment (without giving effect to any reduction in such benefits constituting Good Reason).
Such benefits shall be provided to the Participant at the same premium cost to the Participant and
at the same coverage level as in effect as of the Participant’s termination of employment (without
giving effect to any reduction in such benefits constituting Good Reason); provided, however, that
the Participant shall be subject to any change in the premium cost and/or level of coverage
applicable generally to all employees holding the position or comparable position with the Company
which the Participant held immediately prior to the Change in Control. The Company may satisfy its
obligation to provide a continuation of health benefits by paying that portion of the Participant’s
premiums required under COBRA that exceed the amount of premiums that the Participant would have
been required to pay for continuing coverage had he or she continued in employment. If the Company
is not reasonably able to continue health, life insurance and/or long-term disability benefits
coverage under the Company’s benefit plans, the Company shall provide substantially equivalent
coverage under other sources or will reimburse (without a tax gross-up) the Participant for
premiums (in excess of the Participant’s premium cost described above) incurred by the Participant
to obtain his or her own such coverage. If the Participant and/or the Participant’s dependents
become eligible to receive any such coverage under another employer’s benefit plans during the
applicable Severance Benefit Period, the Participant shall report such eligibility to the Company,
and the Company’s obligations under this subsection shall be secondary to the coverage provided by
such other employer’s plans. For the balance of any period in excess of the applicable Severance
Benefit Period during which the Participant is entitled to continuation coverage under COBRA, the
Participant shall be entitled to maintain coverage for himself or herself and the Participant’s
eligible dependents at the Participant’s own expense.



               (e) Acceleration of Vesting of Options, Restricted Stock, Restricted Stock Units and Other
Stock-Based Compensation. Notwithstanding any provision to the contrary contained in any agreement
evidencing an Option, Restricted Stock, Restricted Stock Units or other stock-based compensation
award granted to a Participant, the vesting and/or exercisability of each of the Participant’s
outstanding Options, Restricted Stock, Restricted Stock Units and other stock-based compensation
awards shall be accelerated in full effective as of the date of the Participant’s termination of
employment so that each such Option, share of Restricted Stock, Restricted Stock Unit and other
stock-based compensation award held by the Participant shall be immediately exercisable and/or
fully vested as of such date; provided, however, that such acceleration of vesting and/or
exercisability shall not apply to any stock-based compensation award where such acceleration would
result in plan disqualification or would otherwise be contrary to applicable law (e.g., an employee
stock purchase plan intended to qualify under Section 423 of the Code).



          6.3 Additional Benefits Subject to Execution of Restrictive Covenants Agreement. Provided
that the Participant (i) executes and does not revoke the Release applicable to such Participant at
or following the time of the Participant’s Termination Upon a




-15-









 








Change in Control, (ii) executes the Restrictive Covenants Agreement applicable to such
Participant and (iii) complies with the Company’s exit procedures and executes an Employee Exit
Interview Declaration affirming such compliance, the Participant shall be entitled to receive the
following additional payments and benefits:




               (a) Additional Cash Payment. In addition to the lump sum cash payment determined in
accordance with Section 6.2(c), within ten (10) business days following the last to occur of (i)
the Participant’s termination of employment, (ii) the last day on which the Participant may revoke
the Release in accordance with its terms, (iii) the Participant’s execution of the Restrictive
Covenants Agreement or (iv) the Participant’s execution of the Employee Exit Interview Declaration,
the Company shall pay to the Participant in a lump sum cash payment an amount equal to the sum of
(1) the Participant’s Base Salary Rate multiplied by the number of months in the Severance Benefit
Period Extension applicable to the Participant and (2) the Participant’s Annual Bonus Rate
multiplied by a ratio, the numerator of which is the number of months in the Severance Benefit
Period Extension applicable to the Participant and the denominator of which is twelve (12).



               (b) Additional Health, Life Insurance and Long-Term Disability Benefits. For the purposes of
determining the duration of the Company’s obligation under Section 6.2(d), the number of months of
continued benefits coverage shall be the sum of the number of months contained in the Severance
Benefit Period applicable to the Participant and the number of months contained in the Severance
Benefit Period Extension applicable to the Participant.



          6.4 Indemnification; Insurance.




               (a) In addition to any rights a Participant may have under any indemnification agreement
previously entered into between the Company and such Participant (a “Prior Indemnity Agreement”),
from and after the date of the Participant’s Termination Upon a Change in Control, the Company
shall indemnify and hold harmless the Participant against any costs or expenses (including
attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative
or investigative, by reason of the fact that the Participant is or was a director, officer,
employee or agent of the Company Group, or is or was serving at the request of the Company Group as
a director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, whether asserted or claimed prior to, at or after the date of the Participant’s
termination of employment, to the fullest extent permitted under applicable law, and the Company
shall also advance fees and expenses (including attorneys’ fees) as incurred by the Participant to
the fullest extent permitted under applicable law. In the event of a conflict between the
provisions of a Prior Indemnity Agreement and the provisions of this Plan, the Participant may
elect which provisions shall govern.



               (b) For a period of six (6) years from and after the date of the Participant’s Termination
Upon a Change in Control, the Company shall maintain a policy of directors’ and officers’ liability
insurance for the benefit of such Participant which provides him or her with coverage no less
favorable than that provided for the Company’s continuing officers and directors.



-16-









 





     7. Federal Excise Tax Under Section 4999 of the Code



          7.1 Treatment of Excess Parachute Payments. In the event that any payment or benefit received
or to be received by a Participant pursuant to this Plan or otherwise payable to the Participant
(collectively, the “Payments”) would subject the Participant to any excise tax pursuant to Section
4999 of the Code, or any similar or successor provision (the “Excise Tax”), due to the
characterization of the Payments as “excess parachute payments” under Section 280G of the Code or
any similar or successor provision (“Section 280G”), then, notwithstanding the other provisions of
this Plan, except as provided in Section 7.2 below, the amount of the Payments shall not exceed the
amount which produces the greatest after-tax benefit to the Participant. Notwithstanding the
foregoing provisions of this Section 7.1, if the present value determined in accordance with
Section 280G (the “Parachute Value”) of those portions of the Payments that constitute “parachute
payments” under Section 280G does not exceed 115% of an amount (the “Safe Harbor Amount”) equal to
2.99 times the Participant’s “base amount” within the meaning of Section 280G, then the aggregate
amount of the Payments to be paid to the Participant shall be reduced to the extent necessary so
that the Parachute Value of such Payments does not exceed the Safe Harbor Amount.




          7.2 Additional Payment. Notwithstanding the provisions of Section 7.1, if the Parachute Value
of the Payments to be paid to a Participant who is the Chief Executive Officer exceeds 115% of such
Participant’s Safe Harbor Amount, then the Participant shall be paid all of the Payments, and, in
addition, shall be entitled to receive an additional payment (the “Gross-Up Payment”) such that the
net amount retained by the Participant from the Payments and the Gross-Up Payment, after deduction
of (a) any Excise Tax on the Payments, (b) any federal, state and local income or employment tax
and Excise Tax on the Gross-Up Payment and (c) any interest, penalties or additions to tax payable
by the Participant with respect thereto, shall be equal to the Payments. The Gross-Up Payment, if
any, shall be paid by the Company within ten (10) business days following the determination of the
Accountants, as provided below.




          7.3 Determination of Amounts.




               (a) Determination by Accountants. All computations and determinations called for by this
Section 7 shall be promptly determined and reported in writing to the Company and the Participant
by independent public accountants selected by the Company and reasonably acceptable to the
Participant (the “Accountants”), and all such computations and determinations shall be conclusive
and binding upon the Participant and the Company. For the purposes of such determinations, the
Accountants may rely on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and the Participant shall furnish to the
Accountants such information and documents as the Accountants may reasonably request in order to
make their required determinations. The Company shall bear all fees and expenses charged by the
Accountants in connection with such services.



               (b) Determination of Excise Tax. For purposes of determining whether any of the Payments will
be subject to the Excise Tax and the amount of such Excise Tax:



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                    (1) Any payments or benefits received or to be received by the Participant in connection with
transactions contemplated by a Change in Control event or the Participant’s termination of
employment (whether pursuant to the terms of this Plan or any other plan, arrangement or agreement
with the Company), shall be treated as “parachute payments” within the meaning of Section 280G, and
all “excess parachute payments” within the meaning of Section 280G shall be treated as subject to
the Excise Tax, unless in the opinion of the Accountants such payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the meaning of Section 280G
in excess of the base amount within the meaning of Section 280G, or are otherwise not subject to
the Excise Tax.



                    (2) The amount of the Payments which shall be treated as subject to the Excise Tax shall be
equal to the lesser of (i) the total amount of the Payments or (ii) the amount of the excess
parachute payments within the meaning of Section 280G (after applying Section 7.3(b)(1) above).



                    (3) The value of any non-cash benefits or any deferred payment or benefit shall be determined
by the Accountants in accordance with the principles of Section 280G.



               (c) Determination of Gross-Up Payment. For purposes of determining the amount of the Gross-Up
Payment, the Participant shall be deemed to pay federal income taxes at the highest marginal rate
of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest marginal rate of taxation in the state and locality of
the Participant’s residence on the date the Gross-Up Payment is to be made, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such state and local
taxes.



          7.4 Notice and Contest of Claim.




               (a) The Participant described in Section 7.2 shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment by the Company of a
Gross-Up Payment. Such notification shall be given as soon as practicable but no later than sixty
(60) calendar days after the Participant is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is requested to be paid. The
Participant shall not pay such claim prior to the expiration of the thirty (30) day period
following the date on which the Participant gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim is due). If the
Company notifies the Participant in writing prior to the expiration of such period that it desires
to contest such claim, the Participant shall:



                    (1) give the Company any information reasonably requested by the Company relating to such
claim;



                    (2) take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without




-18-









 





limitation, accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company and reasonably satisfactory to the Participant;




                    (3) cooperate with the Company in good faith in order to effectively contest such claim; and



                    (4) permit the Company to participate in any proceedings relating to such claim;



provided, however, that the Company shall bear and pay directly all costs and expenses
(including, but not limited to, additional interest and penalties and related legal, consulting or
other similar fees) incurred in connection with such contest and shall indemnify and hold the
Participant harmless, on an after-tax basis, for any Excise Tax or other tax (including interest
and penalties with respect thereto) imposed as a result of such representation and payment of costs
and expenses.




               (b) The Company shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either
direct the Participant to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Participant agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company directs the
Participant to pay such claim and sue for a refund, the Company shall advance the amount of such
payment to the Participant on an interest-free basis, and shall indemnify and hold the Participant
harmless, on an after-tax basis, from any Excise Tax or other tax (including interest or penalties
with respect thereto) imposed with respect to such advance or with respect to any imputed income
with respect to such advance; and provided, further, that if the Participant is required to extend
the statute of limitations to enable the Company to contest such claim, the Participant may limit
this extension solely to such contested amount. The Company’s control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the
Participant shall be entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority. In addition, no position may be taken
nor any final resolution be agreed to by the Company without the Participant’s consent if such
position or resolution could reasonably be expected to adversely affect the Participant (including
any other tax position of the Participant unrelated to the matters covered hereby).



          7.5 Adjustments with Respect to Gross-Up Payment.




               (a) In the event that the Excise Tax is subsequently determined to be less than the amount
taken into account hereunder, the Participant shall repay to the Company, at the time that the
amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being
repaid by the Participant to the extent that such repayment results in a reduction in Excise Tax
and/or a federal, state or local income or employment tax



-19-









 





deduction) plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code.




               (b) In the event that the Excise Tax is subsequently determined to exceed the amount taken
into account hereunder (including by reason of any payment the existence or amount of which cannot
be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up
Payment in respect of such excess (plus any interest, penalties or additions to tax payable by the
Participant with respect to such excess) at the time that the amount of such excess is finally
determined.



     8. Conflict in Benefits; Noncumulation of Benefits



          8.1 Effect of Plan. The terms of this Plan, when accepted by a Participant pursuant to an
executed Participation Agreement, shall supersede all prior arrangements, whether written or oral,
and understandings regarding the subject matter of this Plan and shall be the exclusive agreement
for the determination of any payments and benefits due to the Participant upon the events described
in Sections 4, 5, 6 and 7.




          8.2 Noncumulation of Benefits. Except as expressly provided in a written agreement between a
Participant and the Company entered into after the date of such Participant’s Participation
Agreement and which expressly disclaims this Section 8.2 and is approved by the Board or the
Committee, the total amount of payments and benefits that may be received by the Participant as a
result of the events described in Sections 4, 5, 6 and 7 pursuant to (a) the Plan, (b) any
agreement between the Participant and the Company or (c) any other plan, practice or statutory
obligation of the Company, shall not exceed the amount of payments and benefits provided by this
Plan upon such events (plus any payments and benefits provided pursuant to a Prior Indemnity
Agreement, as described in Section 6.4(a)), and the aggregate amounts payable under this Plan shall
be reduced to the extent of any excess (but not below zero).




     9. Exclusive Remedy



          The payments and benefits provided by Section 4 and Sections 6 and 7 (plus any payments and
benefits provided pursuant to a Prior Indemnity Agreement, as described in Section 6.4(a)), if
applicable, shall constitute the Participant’s sole and exclusive remedy for any alleged injury or
other damages arising out of the cessation of the employment relationship between the Participant
and the Company in the event of the Participant’s Termination in the Absence of a Change in Control
or the Participant’s Termination Upon a Change in Control, respectively. The Participant shall be
entitled to no other compensation, benefits, or other payments from the Company as a result of (a)
the Participant’s Termination in the Absence of a Change in Control with respect to which the
payments and benefits described in Section 4, if applicable, have been provided to the Participant,
or (b) the Participant’s Termination Upon a Change in Control with respect to which the payments
and benefits described in Section 6 and Section 7 (plus any payments and benefits provided pursuant
to a Prior Indemnity Agreement), if applicable, have been provided to the Participant, except as
expressly set forth in this Plan or, subject to the provisions of Section 8.2, in a duly executed
employment agreement between Company and the Participant.




-20-









 








     10. Proprietary and Confidential Information



          The Participant agrees to continue to abide by the terms and conditions of the confidentiality
and/or proprietary rights agreement between the Participant and the Company or any other member of
the Company Group.




     11. No Contract of Employment



          Neither the establishment of the Plan, nor any amendment thereto, nor the payment or provision
of any benefits shall be construed as giving any person the right to be retained by the Company, a
Successor or any other member of the Company Group. Except as otherwise established in an
employment agreement between the Company and a Participant, the employment relationship between the
Participant and the Company is an “at-will” relationship. Accordingly, either the Participant or
the Company may terminate the relationship at any time, with or without cause, and with or without
notice except as otherwise provided by Section 15. In addition, nothing in this Plan shall in any
manner obligate any Successor or other member of the Company Group to offer employment to any
Participant or to continue the employment of any Participant which it does hire for any specific
duration of time.




     12. Claims for Benefits



          12.1 ERISA Plan. This Plan is intended to be (a) an employee welfare plan as defined in
Section 3(1) of Employee Retirement Income Security Act of 1974 (“ERISA”) and (b) a “top-hat” plan
maintained for the benefit of a select group of management or highly compensated employees of the
Company Group.




          12.2 Application for Benefits. All applications for payments and/or benefits under the Plan
(“Benefits”) shall be submitted to the Company’s Vice President, Compensation and Benefits (the
“Claims Administrator”), with a copy to the Company’s General Counsel. Applications for Benefits
must be in writing on forms acceptable to the Claims Administrator and must be signed by the
Participant or beneficiary. The Claims Administrator reserves the right to require the Participant
or beneficiary to furnish such other proof of the Participant’s expenses, including without
limitation, receipts, canceled checks, bills, and invoices as may be required by the Claims
Administrator.




          12.3 Appeal of Denial of Claim.




               (a) If a claimant’s claim for Benefits is denied, the Claims Administrator shall provide
notice to the claimant in writing of the denial within ninety (90) days after its submission. The
notice shall be written in a manner calculated to be understood by the claimant and shall include:



                    (1) The specific reason or reasons for the denial;



                    (2) Specific references to the Plan provisions on which the denial is based;



-21-









 





                    (3) A description of any additional material or information necessary for the applicant to
perfect the claim and an explanation of why such material or information is necessary; and



                    (4) An explanation of the Plan’s claims review procedures and a statement of claimant’s right
to bring a civil action under ERISA Section 502(a) following an adverse benefit determination.



               (b) If special circumstances require an extension of time for processing the initial claim, a
written notice of the extension and the reason therefor shall be furnished to the claimant before
the end of the initial ninety (90) day period. In no event shall such extension exceed ninety (90)
days.



               (c) If a claim for Benefits is denied, the claimant, at the claimant’s sole expense, may
appeal the denial to the Committee (the “Appeals Administrator”) within sixty (60) days of the
receipt of written notice of the denial. In pursuing such appeal the applicant or his duly
authorized representative:



                    (1) may request in writing that the Appeals Administrator review the denial;



                    (2) may review pertinent documents; and



                    (3) may submit issues and comments in writing.



               (d) The decision on review shall be made within sixty (60) days of receipt of the request for
review, unless special circumstances require an extension of time for processing, in which case a
decision shall be rendered as soon as possible, but not later than one hundred twenty (120) days
after receipt of the request for review. If such an extension of time is required, written notice
of the extension shall be furnished to the claimant before the end of the original sixty (60) day
period. The decision on review shall be made in writing, shall be written in a manner calculated
to be understood by the claimant, and, if the decision on review is a denial of the claim for
Benefits, shall include:



                    (1) The specific reason or reasons for the denial;



                    (2) Specific references to the Plan provisions on which the denial is based;



                    (3) A description of any additional material or information necessary for the applicant to
perfect the claim and an explanation of why such material or information is necessary; and



                    (4) An explanation of the Plan’s claims review procedures and a statement of claimant’s right
to bring a civil action under ERISA Section 502(a) following an adverse benefit determination.



-22-









 





     13. Dispute Resolution



          13.1 Waiver of Jury Trial. In the event of any dispute or claim relating to or arising out of
this Plan that is not resolved in accordance with procedure described in Section 12, the Company
and the Participant, each by executing a Participation Agreement, agree that all such disputes or
claims shall be resolved by means of a court trial conducted by the superior or district court in
Santa Clara County, California or as otherwise required by ERISA. The Company and the Participant,
each by executing a Participation Agreement, irrevocably waive their respective rights to have any
such disputes or claims tried by a jury, and agree that such courts will have personal and subject
matter jurisdiction over all such claims or disputes. Notwithstanding the foregoing, in the event
of any such dispute, the Company and the Participant may agree to mediate or arbitrate the dispute
on such terms and conditions as may they may agree in writing.




          13.2 Attorneys’ Fees. The prevailing party shall be entitled to recover from the losing party
its attorneys’ fees and costs incurred in any action brought to enforce any right arising out of
this Plan.




     14. Successors and Assigns



          14.1 Successors of the Company. The Company shall require any successor or assign (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, expressly, absolutely and unconditionally to assume and
agree to perform this Plan in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place.




          14.2 Acknowledgment by Company. If, after a Change in Control, the Company fails to
reasonably confirm that it has performed the obligation described in Section 14.1 within twenty
(20) days after written notice from the Participant, such failure shall be a material breach of
this Plan and shall entitle the Participant to resign for Good Reason and to receive the benefits
provided under this Plan in the event of Termination Upon a Change in Control.




          14.3 Heirs and Representatives of Participant. This Plan shall inure to the benefit of and be
enforceable by the Participant’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devises, legatees or other beneficiaries. If the Participant
should die while any amount would still be payable to the Participant hereunder (other than amounts
which, by their terms, terminate upon the death of the Participant) if the Participant had
continued to live, then all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Plan to the executors, personal representatives or administrators
of the Participant’s estate.




     15. Notices



          15.1 General. For purposes of this Plan, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when




-23-









 








personally delivered or when mailed by United States certified mail, return receipt requested,
or by overnight courier, postage prepaid, as follows:




               (a) if to the Company:


Maxtor Corporation

500 McCarthy Boulevard

Milpitas, California 95035

Attention: General Counsel



               (b) if to the Participant, at the home address which the Participant most recently
communicated to the Company in writing.



Either party may provide the other with notices of change of address, which shall be effective upon
receipt.




          15.2 Notice of Termination. Any termination by the Company of the Participant’s employment or
any resignation of employment by the Participant shall be communicated by a notice of termination
or resignation to the other party hereto given in accordance with Section 15.1. Such notice shall
indicate the specific termination provision in this Plan relied upon, shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination under the provision
so indicated, and shall specify the termination date.




     16. Termination and Amendment of Plan



          The Plan and/or any Participation Agreement executed by a Participant may not be terminated
with respect to such Participant without the written consent of the Participant and the approval of
the Board or the Committee. The Plan and/or any Participation Agreement executed by a Participant
may be modified, amended or superseded with respect to such Participant only by a supplemental
written agreement between the Participant and the Company approved by the Board or the Committee.
Notwithstanding any other provision of the Plan to the contrary, the Board or the Committee may, in
its sole and absolute discretion and without the consent of any Participant, amend the Plan or any
Participation Agreement, to take effect retroactively or otherwise, as it deems necessary or
advisable for the purpose of conforming the Plan or such Participation Agreement to any present or
future law relating to plans of this or similar nature (including, but not limited to, Section 409A
of the Code), and to the administrative regulations and rulings promulgated thereunder.




     17. Miscellaneous Provisions



          17.1 Unfunded Obligation. Any amounts payable to Participants pursuant to the Plan are
unfunded obligations. The Company shall not be required to segregate any monies from its general
funds, or to create any trusts, or establish any special accounts with respect to such obligations.
The Company shall retain at all times beneficial ownership of any investments, including trust
investments, which the Company may make to fulfill its payment obligations hereunder. Any
investments or the creation or maintenance of any trust or any Participant account shall not create
or constitute a trust or fiduciary relationship between the Board or the




-24-









 








Company and a Participant, or otherwise create any vested or beneficial interest in any
Participant or the Participant’s creditors in any assets of the Company.




          17.2 No Duty to Mitigate; Obligations of Company. A Participant shall not be required to
mitigate the amount of any payment or benefit contemplated by this Plan by seeking employment with
a new employer or otherwise, nor shall any such payment or benefit (except for benefits to the
extent described in Section 4.1(b)(3) or Section 6.2(d)) be reduced by any compensation or benefits
that the Participant may receive from employment by another employer. Except as otherwise provided
by this Plan, the obligations of the Company to make payments to the Participant and to make the
arrangements provided for herein are absolute and unconditional and may not be reduced by any
circumstances, including without limitation any set-off, counterclaim, recoupment, defense or other
right which the Company may have against the Participant or any third party at any time.




          17.3 No Representations. By executing a Participation Agreement, the Participant acknowledges
that in becoming a Participant in the Plan, the Participant is not relying and has not relied on
any promise, representation or statement made by or on behalf of the Company which is not set forth
in this Plan.




          17.4 Waiver. No waiver by the Participant or the Company of any breach of, or of any lack of
compliance with, any condition or provision of this Plan by the other party shall be considered a
waiver of any other condition or provision or of the same condition or provision at another time.




          17.5 Choice of Law. The validity, interpretation, construction and performance of this Plan
shall be governed by the substantive laws of the State of California, without regard to its
conflict of law provisions.




          17.6 Validity. The invalidity or unenforceability of any provision of this Plan shall not
affect the validity or enforceability of any other provision of this Plan, which shall remain in
full force and effect.




          17.7 Benefits Not Assignable. Except as otherwise provided herein or by law, no right or
interest of any Participant under the Plan shall be assignable or transferable, in whole or in
part, either directly or by operation of law or otherwise, including, without limitation, by
execution, levy, garnishment, attachment, pledge or in any other manner, and no attempted transfer
or assignment thereof shall be effective. No right or interest of any Participant under the Plan
shall be liable for, or subject to, any obligation or liability of such Participant.




          17.8 Tax Withholding. All payments made pursuant to this Plan will be subject to withholding
of applicable income and employment taxes.




          17.9 Consultation with Legal and Financial Advisors. By executing a Participation Agreement,
the Participant acknowledges that this Plan confers significant legal rights, and may also involve
the waiver of rights under other agreements; that the Company has encouraged the Participant to
consult with the Participant’s personal legal and financial advisors; and that the Participant has
had adequate time to consult with the Participant’s advisors before executing the Participation
Agreement.




-25-









 








          17.10 Further Assurances. From time to time, at the Company’s request and without further
consideration, the Participant shall execute and deliver such additional documents and take all
such further action as reasonably requested by the Company to be necessary or desirable to make
effective, in the most expeditious manner possible, the terms of the Plan and the Participant’s
Participation Agreement, Release and Restrictive Covenants Agreement, and to provide adequate
assurance of the Participant’s due performance thereunder.




     18. Agreement



          By executing a Participation Agreement, the Participant acknowledges that the Participant has
received a copy of this Plan and has read, understands and is familiar with the terms and
provisions of this Plan. This Plan shall constitute an agreement between the Company and the
Participant executing a Participation Agreement.




     IN WITNESS WHEREOF, the undersigned Assistant Secretary of the Company certifies that the
foregoing Plan was duly adopted by the Committee on October 30, 2003 and was amended and restated
in form set forth above on March 7, 2005.







-26-









 








EXHIBIT A




FORM OF




AGREEMENT TO PARTICIPATE IN THE




MAXTOR CORPORATION




EXECUTIVE RETENTION AND SEVERANCE PLAN





 









 








AGREEMENT TO PARTICIPATE IN THE

MAXTOR CORPORATION

EXECUTIVE RETENTION AND SEVERANCE PLAN

Adopted October 30, 2003

Amended and Restated Effective March 7, 2005




     In consideration of the benefits provided by the Maxtor Corporation Executive Retention and
Severance Plan (the “Plan”), the undersigned employee of Maxtor Corporation (the “Company”) and the
Company agree that, as of the date written below, the undersigned shall become a Participant in the
Plan and shall be fully bound by and subject to all of its provisions. All references to a
“Participant” in the Plan shall be deemed to refer to the undersigned.



     [The undersigned is a “Key Employee” (as defined by the Plan) as of the date of this
Agreement. If the undersigned remains a Key Employee, but not an “Executive Officer,” for the
purpose of determining any severance payments or benefits to which the undersigned may become
entitled under the Plan, then the “Severance Benefit Period” and the “Severance Benefit Period
Extension” applicable to the undersigned under the Plan shall be
periods of ___ months and
___ months, respectively.]



     The undersigned employee acknowledges that the Plan confers significant legal rights and may
also constitute a waiver of rights under other agreements with the Company; that the Company has
encouraged the undersigned to consult with the undersigned’s personal legal and financial advisors;
and that the undersigned has had adequate time to consult with the undersigned’s advisors before
executing this agreement.



     The undersigned employee acknowledges that he or she has received a copy of the Plan and has
read, understands and is familiar with the terms and provisions of the Plan. The undersigned
employee further acknowledges that (1) the undersigned is waiving any right to a jury trial in the
event of any dispute arising out of or related to the Plan and (2) except as otherwise established
in an employment agreement between the Company and the undersigned, the employment relationship
between the undersigned and the Company is an “at-will” relationship.



     Executed on ___.



	 	 	 	 	 
	PARTICIPANT	 	MAXTOR CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	 

	 	 	 	 
	Signature
	 	 	 	 
	 
	 	 	 	 
	

	 	Title:	 	 
	 

	 	 	 	 
	Name Printed
	 	 	 	 
	 
	 	 	 	 
	Address
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 







 









 








EXHIBIT B




FORM OF




GENERAL RELEASE OF CLAIMS

[Age 40 and over]





 









 








GENERAL RELEASE OF CLAIMS

[Age 40 and over]




     This Agreement is by and between [Employee Name] (“Employee”) and [Maxtor Corporation or
successor that agrees to assume the Executive Retention and Severance Plan following a Change in
Control] (the “Company”). This Agreement will become effective on the eighth (8th) day after it is
signed by Employee (the “Effective Date”), provided that the Company has signed this Agreement and
Employee has not revoked this Agreement (by written notice to [Company Contact Name] at the
Company) prior to that date.



RECITALS




     A. Employee was employed by the Company as of ___, ___.



     B. Employee and the Company entered into an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan (such agreement and plan being referred to herein as the
“Plan”) effective as of ___, ___ wherein Employee is entitled to receive certain benefits
in the event of [an Involuntary Termination] [a Termination Upon a Change in Control] (as defined
by the Plan), provided Employee signs and does not revoke a Release (as defined by the Plan) [,
executes the Restrictive Covenants Agreement (as defined by the Plan) applicable to Employee,] and
executes the Employee Exit Interview Declaration (as defined by the Plan) evidencing Employee’s
compliance with the Company’s employee exit procedures.



     C. [A Change in Control (as defined by the Plan) has occurred as a result of [briefly describe
change in control]]



     D. Employee’s employment is being terminated as a result of [an Involuntary Termination] [a
Termination Upon a Change in Control]. Employee’s last day of work and termination are effective
as of ___, ___. Employee desires to receive the payments and benefits provided by the
Plan by executing this Release [, the applicable Restricted Covenants Agreement] and the Employee
Exit Interview Declaration.



     NOW, THEREFORE, the parties agree as follows:



     1. Commencing on the Effective Date, the Company shall provide Employee with the applicable
payments and benefits set forth in the Plan, a summary of which is attached hereto as Appendix 1,
in accordance with the terms of the Plan. Employee acknowledges that the payments and benefits
made pursuant to this paragraph are made in full satisfaction of the Company’s obligations under
the Plan. Employee further acknowledges that Employee has been paid all wages and accrued, unused
vacation that Employee earned during his or her employment with the Company.



     2. Employee and Employee’s successors release the Company, its respective subsidiaries,
stockholders, investors, directors, officers, employees, agents, attorneys, insurers, legal
successors and assigns of and from any and all claims, actions and causes of action, whether now
known or unknown, which Employee now has, or at any other time had, or shall or



 









 





may have against those released parties based upon or arising out of any matter, cause, fact,
thing, act or omission whatsoever directly related to Employee’s employment by the Company or the
termination of such employment and occurring or existing at any time up to and including the
Effective Date, including, but not limited to, any claims of breach of written contract, wrongful
termination, retaliation, fraud, defamation, infliction of emotional distress, or national origin,
race, age, sex, sexual orientation, disability or other discrimination or harassment under the
Civil Rights Act of 1964, the Age Discrimination In Employment Act of 1967, the Americans with
Disabilities Act, the Fair Employment and Housing Act or any other applicable law. Notwithstanding
the foregoing, this release shall not apply to any right of the Employee pursuant to Section 6.4 of
the Plan or pursuant to a Prior Indemnity Agreement (as such term is defined by the Plan).




     3. Employee acknowledges that he or she has read Section 1542 of the Civil Code of the State
of California, which states in full:




A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor.



Employee waives any rights that Employee has or may have under Section 1542 and comparable or
similar provisions of the laws of other states in the United States to the full extent that he or
she may lawfully waive such rights pertaining to this general release of claims, and affirms that
Employee is releasing all known and unknown claims that he or she has or may have against the
parties listed above.




     4. Employee and the Company acknowledge and agree that they shall continue to be bound by and
comply with the terms and obligations under the following agreements: (i) any proprietary rights or
confidentiality agreements between the Company and Employee, (ii) the Plan, (iii) any Prior
Indemnity Agreement (as such term is defined by the Plan) to which Employee is a party, [and] (iv)
any stock option, stock grant or stock purchase agreements between the Company and Employee [and
(v) the Restrictive Covenants Agreement between the Company and Employee].



     5. This Agreement shall be binding upon, and shall inure to the benefit of, the parties and
their respective successors, assigns, heirs and personal representatives.



     6. The parties agree that any and all disputes that both (i) arise out of the Plan, the
interpretation, validity or enforceability of the Plan or the alleged breach thereof and (ii)
relate to the enforceability of this Agreement or the interpretation of the terms of this Agreement
shall be subject to the provisions of Section 12 and Section 13 of the Plan.



     7. The parties agree that any and all disputes that (i) do not arise out of the Plan, the
interpretation, validity or enforceability of the Plan or the alleged breach thereof and (ii)
relate to the enforceability of this Agreement, the interpretation of the terms of this Agreement
or any of the matters herein released or herein described shall be resolved by means of a court
trial conducted by the superior or district court in Santa Clara County, California. The parties
hereby



-2-









 





irrevocably waive their respective rights to have any such disputes tried to a jury, and the
parties hereby agree that such courts will have personal and subject matter jurisdiction over all
such disputes. Notwithstanding the foregoing, in the event of any such dispute, the parties may
agree to mediate or arbitrate the dispute on such terms and conditions as may be agreed in writing
by the parties. The prevailing party shall be entitled to recover from the losing party its
attorneys’ fees and costs incurred in any action brought to resolve any such dispute.




     8. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations and agreements, whether written or
oral, with the exception of any agreements described in paragraph 4 of this Agreement. This
Agreement may not be modified or amended except by a document signed by an authorized officer of
the Company and Employee. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected.



EMPLOYEE UNDERSTANDS THAT EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT AND THAT EMPLOYEE IS GIVING UP ANY LEGAL CLAIMS EMPLOYEE HAS AGAINST THE PARTIES RELEASED
ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE FURTHER UNDERSTANDS THAT EMPLOYEE MAY HAVE UP TO 45 DAYS
TO CONSIDER THIS AGREEMENT, THAT EMPLOYEE MAY REVOKE IT AT ANY TIME DURING THE 7 DAYS AFTER
EMPLOYEE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS PASSED.
EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY
IN EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN PARAGRAPH 1.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	[Employee Name]
	 
	 	 	 	 	 	 
	 	 	 	 	[Company]
	 
	 	 	 	 	 	 
	Dated:

	 	 	 	By:	 	 
	 

	 	 
	 	 
	 	 






-3-









 








EXHIBIT C




FORM OF




GENERAL RELEASE OF CLAIMS

[Under age 40]





 









 








GENERAL RELEASE OF CLAIMS

[Under age 40]




     This Agreement is by and between [Employee Name] (“Employee”) and [Maxtor Corporation or
successor that agrees to assume the Executive Retention and Severance Plan following a Change in
Control] (the “Company”). This Agreement is effective on the day it is signed by Employee (the
“Effective Date”).



RECITALS




     A. Employee was employed by the Company as of ___, ___.



     B. Employee and the Company entered into an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan (such agreement and plan being referred to herein as the
“Plan”) effective as of ___, ___ wherein Employee is entitled to receive certain benefits
in the event of [an Involuntary Termination] [a Termination Upon a Change in Control] (as defined
by the Plan), provided Employee signs a Release (as defined by the Plan) [, executes the
Restrictive Covenants Agreement (as defined by the Plan) applicable to Employee,] and executes the
Employee Exit Interview Declaration (as defined by the Plan) evidencing Employee’s compliance with
the Company’s employee exit procedures.



     C. [A Change in Control (as defined by the Plan) has occurred as a result of [briefly describe
change in control]]



     D. Employee’s employment is being terminated as a result of [an Involuntary Termination] [a
Termination Upon a Change in Control]. Employee’s last day of work and termination are effective
as of ___, ___ (the “Termination Date”). Employee desires to receive the payments and
benefits provided by the Plan by executing this Release [, the applicable Restricted Covenants
Agreement] and the Employee Exit Interview Declaration.



     NOW, THEREFORE, the parties agree as follows:



     1. Commencing on the Effective Date, the Company shall provide Employee with the applicable
payments and benefits set forth in the Plan, a summary of which is attached hereto as Appendix 1,
in accordance with the terms of the Plan. Employee acknowledges that the payments and benefits
made pursuant to this paragraph are made in full satisfaction of the Company’s obligations under
the Plan. Employee further acknowledges that Employee has been paid all wages and accrued, unused
vacation that Employee earned during his or her employment with the Company.



     2. Employee and Employee’s successors release the Company, its respective subsidiaries,
stockholders, investors, directors, officers, employees, agents, attorneys, insurers, legal
successors and assigns of and from any and all claims, actions and causes of action, whether now
known or unknown, which Employee now has, or at any other time had, or shall or may have against
those released parties based upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever directly related to Employee’s employment by the Company or



 









 





the termination of such employment and occurring or existing at any time up to and including the
Termination Date, including, but not limited to, any claims of breach of written contract, wrongful
termination, retaliation, fraud, defamation, infliction of emotional distress, or national origin,
race, age, sex, sexual orientation, disability or other discrimination or harassment under the
Civil Rights Act of 1964, the Age Discrimination In Employment Act of 1967, the Americans with
Disabilities Act, the Fair Employment and Housing Act or any other applicable law. Notwithstanding
the foregoing, this release shall not apply to any right of the Employee pursuant to Sections 5.4
of the Plan or pursuant to a Prior Indemnity Agreement (as such terms are defined by the Plan).




     3. Employee acknowledges that he or she has read Section 1542 of the Civil Code of the State
of California, which states in full:




A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor.



Employee waives any rights that Employee has or may have under Section 1542 and comparable or
similar provisions of the laws of other states in the United States to the full extent that he or
she may lawfully waive such rights pertaining to this general release of claims, and affirms that
Employee is releasing all known and unknown claims that he or she has or may have against the
parties listed above.




     4. Employee and the Company acknowledge and agree that they shall continue to be bound by and
comply with the terms and his obligations under the following agreements: (i) any proprietary
rights or confidentiality agreements between the Company and Employee, (ii) the Plan, (iii) any
Prior Indemnity Agreement (as such term is defined by the Plan) to which Employee is a party, [and]
(iv) any stock option, stock grant or stock purchase agreements between the Company and Employee
[and (v) the Restrictive Covenants Agreement between the Company and Employee].



     5. This Agreement shall be binding upon, and shall inure to the benefit of, the parties and
their respective successors, assigns, heirs and personal representatives.



     6. The parties agree that any and all disputes that both (i) arise out of the Plan, the
interpretation, validity or enforceability of the Plan or the alleged breach thereof and (ii)
relate to the enforceability of this Agreement or the interpretation of the terms of this Agreement
shall be subject to Section 12 and Section 13 of the Plan.



     7. The parties agree that any and all disputes that (i) do not arise out of the Plan, the
interpretation, validity or enforceability of the Plan or the alleged breach thereof and (ii)
relate to the enforceability of this Agreement, the interpretation of the terms of this Agreement
or any of the matters herein released or herein described shall be resolved by means of a court
trial conducted by the superior or district court in Santa Clara County, California. The parties
hereby irrevocably waive their respective rights to have any such disputes tried to a jury, and the
parties hereby agree that such courts will have personal and subject matter jurisdiction over all
such



-2-









 





disputes. Notwithstanding the foregoing, in the event of any such dispute, the parties may agree
to mediate or arbitrate the dispute on such terms and conditions as may be agreed in writing by the
parties. The prevailing party shall be entitled to recover from the losing party its attorneys’
fees and costs incurred in any action brought to resolve any such dispute.




     8. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations and agreements, whether written or
oral, with the exception of any agreements described in paragraph 4 of this Agreement. This
Agreement may not be modified or amended except by a document signed by an authorized officer of
the Company and Employee. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal and enforceable, and
the validity, legality and enforceability of the remaining provisions of this Agreement shall not
in any way be affected.



EMPLOYEE UNDERSTANDS THAT EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT AND THAT EMPLOYEE IS GIVING UP ANY LEGAL CLAIMS EMPLOYEE HAS AGAINST THE PARTIES RELEASED
ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES THAT EMPLOEE IS SIGNING THIS AGREEMENT
KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN
PARAGRAPH 1.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	[Employee Name]
	 
	 	 	 	 	 	 
	 	 	 	 	[Company]
	 
	 	 	 	 	 	 
	Dated:

	 	 	 	By:	 	 
	 

	 	 
	 	 
	 	 






-3-









 






EXHIBIT D




FORM OF




RESTRICTIVE COVENANTS AGREEMENT

[CEO Involuntary Termination]















 








RESTRICTIVE COVENANTS AGREEMENT

[CEO Involuntary Termination]




     THIS RESTRICTIVE COVENANTS AGREEMENT is made and entered into as of ___, 200___, by
and between ___, an individual (“Employee”), and Maxtor Corporation, a Delaware
corporation (the “Company”). For the purposes of this Agreement, the “Company” shall be deemed to
include Maxtor Corporation, any successor entity and their majority owned direct and indirect
subsidiaries.



RECITALS




     A. Employee has been employed by the Company as its Chief Executive Officer since ___,
___.



     B. Employee and the Company entered into an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan (such agreement and plan being referred to herein as the
“Plan”), effective as of ___, ___, wherein Employee is entitled to receive certain
severance payments and benefits in the event of an Involuntary Termination (as defined by the
Plan), provided Employee executes this Agreement, executes and does not revoke the Release (as
defined by the Plan) applicable to Employee and executes the Employee Exit Interview Declaration.



     C. Employee’s employment is being terminated as a result of an Involuntary Termination.
Employee’s last day of work and termination are effective as of
___, ___ (the
“Termination Date”). Employee desires to receive the payments and benefits provided by the Plan by
executing this Agreement, the applicable Release and the Employee Exit Interview Declaration.



     D. In consideration of the payments and benefits to be provided to Employee by the Company
pursuant to the Plan, Employee, intending to be bound hereby, has executed this Agreement.



          NOW, THEREFORE, the parties agree as follows:




     1. Covenant Not to Compete. Employee agrees that, for a period of two (2) years
following the Termination Date (the “Noncompetition Period”), he will not, with or without
compensation, become employed or otherwise serve in the capacity of the chief executive officer,
president, chief financial officer, chief operating officer or another similar executive position
of any entity, or its successor, which is a direct competitor of the Company identified in
[Appendix 1 attached hereto] [the Company’s Form 10-K most recently filed prior to the date of
Employee’s termination of employment], unless expressly authorized to do so in writing by the
Company. Employee agrees to notify the Company within 24 hours of each employment or consulting
position he accepts during the Noncompetition Period (including the name and address of the hiring
party) and will, upon request by the Company, describe in reasonable detail the nature of his
duties in each such position. Employee acknowledges and agrees that the restrictions contained in
this paragraph are reasonable and necessary, as there is a significant risk













 




that Employee’s provision of labor, services or advice or assistance to any of such
competitors in such capacities could result in the inevitable disclosure of the Company’s
proprietary information. Employee further acknowledges that the restrictions contained in this
paragraph will not preclude him from engaging in any trade, business or profession for which he is
qualified.




     2. Nonsolicitation. Employee agrees that he will not during the Noncompetition
Period, directly or indirectly:



          (a) solicit, influence, entice or encourage any person who is an employee of or consultant to
the Company to cease or curtail his or her relationship with the Company; or




          (b) request, advise or induce any of the customers, suppliers, distributors, vendors or other
business contacts of the Company with which Employee had contact while employed by the Company to
withdraw, curtail, cancel or not increase their business with the Company.




     3. Nondisruption. Employee agrees that he will not during the Noncompetition Period,
directly or indirectly, interfere with, disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company and any of its employees,
consultants, customers, suppliers, distributors or vendors.



     4. Nondisparagement. Employee agrees that he will not during the Noncompetition
Period knowingly disparage the business reputation of the Company (or its management team) or take
any actions that are harmful to the Company’s goodwill with its customers, suppliers, distributors,
vendors, employees, consultants, the media or the public.



     5. Confidentiality. Employee covenants that he will not, at any time, directly or
indirectly, use for his own account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company, Confidential Information (as
hereinafter defined). As used herein, “Confidential Information” means information about the
Company of any kind, nature or description, including, but not limited to, any proprietary
knowledge, trade secrets, data, formulae, employees, and client and customer lists and all
documents, papers, resumes, and records (including computer records), which is disclosed to or
otherwise known to Employee as a direct or indirect consequence of his association with the
Company. Employee acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company and that such information gives the Company a competitive
advantage in its business. Employee further agrees to deliver to the Company, at the Company’s
request, all documents, computer tapes and disks, records, lists, data, drawings, prints, notes and
written or electronic information (and all copies thereof) furnished by the Company or created by
Employee in connection with his association with the Company.



     6. Equitable Relief. Employee acknowledges and agrees that the Company’s remedies at
law for breach of any of the provisions of this Agreement would be inadequate and, in recognition
of this fact, Employee agrees that, in the event of such breach, in addition to any remedies at law
it may have, the Company, without posting any bond, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary



-2-









 




or permanent injunction or any other equitable remedy that may be available. Employee further
acknowledges that should Employee violate any of the provisions of this Agreement, it will be
difficult to determine the amount of damages resulting to the Company and that in addition to any
other remedies it may have, the Company shall be entitled to temporary and permanent injunctive
relief without the necessity of proving damages.




     7. Termination of Certain Payments and Benefits Upon Breach.



          (a) In addition to the remedies provided by paragraph 6 of this Agreement, Employee agrees
that if the Board of Directors of the Company, acting in good faith, determines by a vote of not
less than two-thirds of its entire membership, that any action or failure to act by Employee
constitutes a material breach of the Covenant Not to Compete set forth in paragraph 1 of this
Agreement, then the Company may, in its sole discretion, terminate any further provision of the
severance payments and benefits under Section 4.1(b) of the Plan and require Employee to repay to
the Company any such severance payments or benefits provided to Employee following the date of such
material breach. The Company shall be entitled, at its sole discretion, to set off any amounts
that Employee is required to repay to the Company pursuant to this paragraph against any amount
owed to Employee by the Company, including any amount owed to Employee pursuant to Section 4.1(a)
of the Plan.




          (b) Employee further agrees that in the event that it is determined by a court of competent
jurisdiction that any action or failure to act by Employee constitutes a material breach of any of
the covenants set forth in paragraph 1, 2, 3, 4 or 5 of this Agreement, then the Company may, in
its sole discretion take any of the actions described in paragraph 7(a) above.




     8. Acknowledgement. Each of Employee and the Company acknowledges and agrees that the
covenants and agreements contained in this Agreement have been negotiated in good faith by the
parties, are reasonable and are not more restrictive or broader than necessary to protect the
interests of the parties thereto, and would not achieve their intended purpose if they were on
different terms or for periods of time shorter than the periods of time provided herein or applied
in more restrictive geographical areas than are provided herein.



     9. Separate Covenants. The covenants contained in this Agreement shall be construed
as a series of separate covenants, one for each of the counties in each of the states of the United
States of America, one for each province of Canada, and one for each country outside the United
States and Canada.



     10. Severability. The parties agree that construction of this Agreement shall be in
favor of its reasonable nature, legality and enforceability, and that any construction causing
unenforceability shall yield to a construction permitting enforceability. It is agreed that the
noncompetition, nonsolicitation, nondisruption, nondisparagement and confidentiality covenants and
provisions of this Agreement are severable, and that if any single covenant or provision or
multiple covenants or provisions should be found unenforceable, the entire Agreement and remaining
covenants and provisions shall not fail but shall be construed as enforceable without any severed
covenant or provision in accordance with the tenor of this Agreement. The parties specifically
agree that no covenant or provision of this Agreement shall be invalidated because of overbreadth
insofar as the parties acknowledge the scope of the covenants and provisions



-3-









 





contained herein to be reasonable and necessary for the protection of the Company and not
unduly restrictive upon Employee. However, should a court or any other trier of fact or law
determine not to enforce any covenant or provision of this Agreement as written due to overbreadth,
then the parties agree that said covenant or provision shall be enforced to the extent reasonable,
with the court or such trier to make any necessary revisions to said covenant or provision to
permit its enforceability.




     11. Not an Employment Agreement. This Agreement is not, and nothing in this Agreement
shall be construed as, an agreement to provide employment to Employee. The provisions of
Paragraphs 1, 2, 3, 4 and 5 of this Agreement shall be operative regardless of the reasons for any
termination of Employee’s employment and regardless of the performance or nonperformance by any
party under any other section of this Agreement.



     12. Governing Law. This Agreement is made under and shall be governed by, construed
in accordance with and enforced under the internal laws of the State of California.



     13. Entire Agreement. This Agreement, together with the Plan, constitutes and
contains the entire agreement and understanding concerning the subject matter addressed herein
between the parties, and supersedes and replaces all prior negotiations and all agreements proposed
or otherwise, whether written or oral, concerning the subject matter hereof, and the parties hereto
have made no agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth herein or in the Plan.



     14. Notices. Any notice or other communication under this Agreement shall be in
writing, signed by the party making the same, and shall be delivered personally or sent by
certified or registered mail or overnight courier, postage prepaid, addressed as follows:



	 	 	 	 	 
	           If to Employee:	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	           If to Company:
	 	Maxtor Corporation	 	 
	 	 	500 McCarthy Boulevard	 	 
	 	 	Milpitas, California	 	 
	 	 	Attention: General Counsel	 	 





or to such other address as may hereafter be designated by either party hereto. All such notices
shall be deemed given on the date personally delivered, mailed or deposited with an overnight
courier.




     15. Dispute Resolution.



          (a) Waiver of Jury Trial. In the event of any dispute relating to or arising out of
this Agreement, the parties agree that such dispute shall be resolved by means of a court trial
conducted by the superior or district court in Santa Clara County, California. The parties hereby
irrevocably waive their respective rights to have any such dispute tried to a jury, and the parties





-4-









 







hereby agree that such courts will have personal and subject matter jurisdiction over all such
disputes. Notwithstanding the foregoing, in the event of any such dispute, the parties may agree
to mediate or arbitrate the dispute on such terms and conditions as may be agreed in writing by the
parties.




          (b) Attorneys’ Fees. The prevailing party shall be entitled to recover from the
losing party its attorneys’ fees and costs incurred in any action brought to resolve any such
dispute.




     16. Amendments; No Waiver.



          (a) No amendment or modification of this Agreement shall be deemed effective unless made in
writing and signed by the parties hereto.




          (b) No term or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel to enforce any provision of this Agreement, except by a statement in writing
signed by the party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall operate only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that specifically
waived.




     17. Assignment. This Agreement may be assigned by the Company, without the consent of
Employee, to any affiliate of the Company or to any nonaffiliate of the Company that shall succeed
to the business and assets of the Company. This Agreement is personal to Employee, and Employee
may not assign any rights or delegate any responsibilities hereunder.



     18. Further Assurances. From time to time, at the Company’s request and without
further consideration, Employee shall execute and deliver such additional documents and take all
such further action as reasonably requested by the Company to be necessary or desirable to make
effective, in the most expeditious manner possible, the terms of this Agreement, and to provide
adequate assurance of Employee’s due performance hereunder.



     19. Headings. The headings of paragraphs in this Agreement are solely for convenience
of reference and shall not control the meaning or interpretation of any provision of this
Agreement.



     20. Construction. The language of this Agreement and of each and every paragraph,
term and provision of this Agreement shall, in all cases, for any and all purposes, and in any and
all circumstances whatsoever be construed as a whole, according to its fair meaning, not strictly
for or against Employee or the Company and with no regard whatsoever to the identity or status of
any person or persons who drafted all or any portion of this Agreement.



     21. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.



[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]




-5-









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	 	EMPLOYEE
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	MAXTOR CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 
	

	 	Title:	 	 
	

	 	 	 	 







-6-









 








EXHIBIT E




FORM OF




RESTRICTIVE COVENANTS AGREEMENT

[Executive Officer/Key Employee Involuntary Termination]





 









 








RESTRICTIVE COVENANTS AGREEMENT

[Executive Officer/Key Employee Involuntary Termination]




     THIS RESTRICTIVE COVENANTS AGREEMENT is made and entered into as of ___, 200___, by
and between ___, an individual (“Employee”), and Maxtor Corporation, a Delaware
corporation (the “Company”). For the purposes of this Agreement, the “Company” shall be deemed to
include Maxtor Corporation, any successor entity and their majority owned direct and indirect
subsidiaries.



RECITALS




     A. Employee has been employed by the Company as its ___since ___,
___.



     B. Employee and the Company entered into an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan (such agreement and plan being referred to herein as the
“Plan”), effective as of ___, ___, wherein Employee is entitled to receive certain
severance payments and benefits in the event of an Involuntary Termination (as defined by the
Plan), provided Employee executes this Agreement, executes and does not revoke the Release (as
defined by the Plan) applicable to Employee and executes the Employee Exit Interview Declaration.



     C. Employee’s employment is being terminated as a result of an Involuntary Termination.
Employee’s last day of work and termination are effective as of ___, ___  (the
“Termination Date”). Employee desires to receive the payments and benefits provided by the Plan by
executing this Agreement, the applicable Release and the Employee Exit Interview Declaration.



     D. In consideration of the payments and benefits to be provided to Employee by the Company
pursuant to the Plan, Employee, intending to be bound hereby, has executed this Agreement.



     NOW, THEREFORE, the parties agree as follows:



     1. Nonsolicitation. Employee agrees that he will not for a period of one (1) year
following the Termination Date (the “Restricted Period”), directly or indirectly:



          (a) solicit, influence, entice or encourage any person who is an employee of or consultant to
the Company to cease or curtail his or her relationship with the Company; or




          (b) request, advise or induce any of the customers, suppliers, distributors, vendors or other
business contacts of the Company with which Employee had contact while employed by the Company to
withdraw, curtail, cancel or not increase their business with the Company.




     2. Nondisruption. Employee agrees that he will not during the Restricted Period,
directly or indirectly, interfere with, disrupt or attempt to disrupt any past, present or
prospective



 









 




relationship, contractual or otherwise, between the Company and any of its employees,
consultants, customers, suppliers, distributors or vendors.




     3. Nondisparagement. Employee agrees that he will not during the Restricted Period
knowingly disparage the business reputation of the Company (or its management team) or take any
actions that are harmful to the Company’s goodwill with its customers, suppliers, distributors,
vendors, employees, consultants, the media or the public.



     4. Confidentiality. Employee covenants that he will not, at any time, directly or
indirectly, use for his own account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company, Confidential Information (as
hereinafter defined). As used herein, “Confidential Information” means information about the
Company of any kind, nature or description, including, but not limited to, any proprietary
knowledge, trade secrets, data, formulae, employees, and client and customer lists and all
documents, papers, resumes, and records (including computer records), which is disclosed to or
otherwise known to Employee as a direct or indirect consequence of his association with the
Company. Employee acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company and that such information gives the Company a competitive
advantage in its business. Employee further agrees to deliver to the Company, at the Company’s
request, all documents, computer tapes and disks, records, lists, data, drawings, prints, notes and
written or electronic information (and all copies thereof) furnished by the Company or created by
Employee in connection with his association with the Company.



     5. Equitable Relief. Employee acknowledges and agrees that the Company’s remedies at
law for breach of any of the provisions of this Agreement would be inadequate and, in recognition
of this fact, Employee agrees that, in the event of such breach, in addition to any remedies at law
it may have, the Company, without posting any bond, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may be available. Employee further acknowledges that
should Employee violate any of the provisions of this Agreement, it will be difficult to determine
the amount of damages resulting to the Company and that in addition to any other remedies it may
have, the Company shall be entitled to temporary and permanent injunctive relief without the
necessity of proving damages.



     6. Termination of Certain Payments and Benefits Upon Breach. In addition to the
remedies provided by paragraph 5 of this Agreement, Employee agrees that in the event that it is
determined by a court of competent jurisdiction that any action or failure to act by Employee
constitutes a material breach of any of the covenants set forth in paragraph 1, 2, 3 or 4 of this
Agreement, then the Company may, in its sole discretion, terminate any further provision of the
severance payments and benefits under Section 4.1(b) of the Plan and require Employee to repay to
the Company any such severance payments or benefits provided to Employee following the date of such
material breach. The Company shall be entitled, at its sole discretion, to set off any amounts
that Employee is required to repay to the Company pursuant to this paragraph against any amount
owed to Employee by the Company, including any amount owed to Employee pursuant to Section 4.1(a)
of the Plan.



-2-









 





     7. Acknowledgement. Each of Employee and the Company acknowledges and agrees that the
covenants and agreements contained in this Agreement have been negotiated in good faith by the
parties, are reasonable and are not more restrictive or broader than necessary to protect the
interests of the parties thereto, and would not achieve their intended purpose if they were on
different terms or for periods of time shorter than the periods of time provided herein or applied
in more restrictive geographical areas than are provided herein.



     8. Separate Covenants. The covenants contained in this Agreement shall be construed
as a series of separate covenants, one for each of the counties in each of the states of the United
States of America, one for each province of Canada, and one for each country outside the United
States and Canada.



     9. Severability. The parties agree that construction of this Agreement shall be in
favor of its reasonable nature, legality and enforceability, and that any construction causing
unenforceability shall yield to a construction permitting enforceability. It is agreed that the
nonsolicitation, nondisruption, nondisparagement and confidentiality covenants and provisions of
this Agreement are severable, and that if any single covenant or provision or multiple covenants or
provisions should be found unenforceable, the entire Agreement and remaining covenants and
provisions shall not fail but shall be construed as enforceable without any severed covenant or
provision in accordance with the tenor of this Agreement. The parties specifically agree that no
covenant or provision of this Agreement shall be invalidated because of overbreadth insofar as the
parties acknowledge the scope of the covenants and provisions contained herein to be reasonable and
necessary for the protection of the Company and not unduly restrictive upon Employee. However,
should a court or any other trier of fact or law determine not to enforce any covenant or provision
of this Agreement as written due to overbreadth, then the parties agree that said covenant or
provision shall be enforced to the extent reasonable, with the court or such trier to make any
necessary revisions to said covenant or provision to permit its enforceability.



     10. Not an Employment Agreement. This Agreement is not, and nothing in this Agreement
shall be construed as, an agreement to provide employment to Employee. The provisions of
Paragraphs 1, 2, 3 and 4 of this Agreement shall be operative regardless of the reasons for any
termination of Employee’s employment and regardless of the performance or nonperformance by any
party under any other section of this Agreement.



     11. Governing Law. This Agreement is made under and shall be governed by, construed
in accordance with and enforced under the internal laws of the State of California.



     12. Entire Agreement. This Agreement, together with the Plan, constitutes and
contains the entire agreement and understanding concerning the subject matter addressed herein
between the parties, and supersedes and replaces all prior negotiations and all agreements proposed
or otherwise, whether written or oral, concerning the subject matter hereof, and the parties hereto
have made no agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth herein or in the Plan.



-3-









 





     13. Notices. Any notice or other communication under this Agreement shall be in
writing, signed by the party making the same, and shall be delivered personally or sent by
certified or registered mail or overnight courier, postage prepaid, addressed as follows:



	 	 	 
	            If to Employee:	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	            If to Company:
	 	Maxtor Corporation
	 	 	500 McCarthy Boulevard
	 	 	Milpitas, California
	 	 	Attention: General Counsel





or to such other address as may hereafter be designated by either party hereto. All such notices
shall be deemed given on the date personally delivered, mailed or deposited with an overnight
courier.




     14. Dispute Resolution.



          (a) Waiver of Jury Trial. In the event of any dispute relating to or arising out of
this Agreement, the parties agree that such dispute shall be resolved by means of a court trial
conducted by the superior or district court in Santa Clara County, California. The parties hereby
irrevocably waive their respective rights to have any such dispute tried to a jury, and the parties
hereby agree that such courts will have personal and subject matter jurisdiction over all such
disputes. Notwithstanding the foregoing, in the event of any such dispute, the parties may agree
to mediate or arbitrate the dispute on such terms and conditions as may be agreed in writing by the
parties.




          (b) Attorneys’ Fees. The prevailing party shall be entitled to recover from the
losing party its attorneys’ fees and costs incurred in any action brought to resolve any such
dispute.




     15. Amendments; No Waiver.



          (a) No amendment or modification of this Agreement shall be deemed effective unless made in
writing and signed by the parties hereto.




          (b) No term or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel to enforce any provision of this Agreement, except by a statement in writing
signed by the party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall operate only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that specifically
waived.




     16. Assignment. This Agreement may be assigned by the Company, without the consent of
Employee, to any affiliate of the Company or to any nonaffiliate of the Company that



-4-









 




shall succeed to the business and assets of the Company. This Agreement is personal to
Employee, and Employee may not assign any rights or delegate any responsibilities hereunder.




     17. Further Assurances. From time to time, at the Company’s request and without
further consideration, Employee shall execute and deliver such additional documents and take all
such further action as reasonably requested by the Company to be necessary or desirable to make
effective, in the most expeditious manner possible, the terms of this Agreement, and to provide
adequate assurance of Employee’s due performance hereunder.



     18. Headings. The headings of paragraphs in this Agreement are solely for convenience
of reference and shall not control the meaning or interpretation of any provision of this
Agreement.



     19. Construction. The language of this Agreement and of each and every paragraph,
term and provision of this Agreement shall, in all cases, for any and all purposes, and in any and
all circumstances whatsoever be construed as a whole, according to its fair meaning, not strictly
for or against Employee or the Company and with no regard whatsoever to the identity or status of
any person or persons who drafted all or any portion of this Agreement.



     20. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	 	EMPLOYEE
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	MAXTOR CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 
	

	 	Title:	 	 
	

	 	 	 	 






-5-









 






EXHIBIT F




FORM OF




RESTRICTIVE COVENANTS AGREEMENT

[CEO Termination Upon a Change in Control]





 









 








RESTRICTIVE COVENANTS AGREEMENT

[CEO Termination Upon a Change in Control]




     THIS RESTRICTIVE COVENANTS AGREEMENT is made and entered into as of ___, 200___, by
and between ___, an individual (“Employee”), and [Maxtor Corporation or successor that
agrees to assume the Executive Retention and Severance Plan following a Change in Control], a
___ corporation (the “Company”). For the purposes of this Agreement, the “Company” shall
be deemed to include [Maxtor Corporation or its successor following a Change in Control] and its
majority owned direct and indirect subsidiaries that operate the Maxtor Business (as hereinafter
defined) during the term of this Agreement.



RECITALS




     A. Maxtor Corporation, a Delaware corporation (“Maxtor”), is engaged throughout the United
States of America and the world in the business of [describe business] (the “Maxtor Business”).



     B. Pursuant to that certain Agreement and Plan of Reorganization (the “Reorganization
Agreement”) dated as of ___, ___  by and among [Acquiror Parent], [___
Acquisition Corp.], a ___  corporation and wholly-owned subsidiary of [Acquiror Parent]
(“Sub”), and Maxtor, [Acquiror Parent] is acquiring Maxtor through a merger of [Maxtor/Sub] with
and into [Sub/Maxtor] (the “Merger”) pursuant to which [Maxtor/Sub], as the surviving corporation,
will continue to operate the Maxtor Business as a wholly-owned subsidiary of [Acquiror Parent].



     C. Employee has been employed by Maxtor as its Chief Executive Officer since ___,
___.



     D. Employee and Maxtor entered into an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan (such agreement and plan being referred to herein as the
“Plan”), effective as of ___, ___, wherein Employee is entitled to receive certain
severance payments and benefits in the event of a Termination Upon a Change in Control (as defined
by the Plan), provided Employee executes this Agreement, executes and does not revoke the Release
(as defined by the Plan) applicable to Employee and executes the Employee Exit Interview
Declaration. [Acquiror Parent] has assumed the rights and agreed to perform the obligation of
Maxtor under the Plan effective as of the effective time of the Merger.



     E. Employee’s employment is being terminated as a result of a Termination Upon a Change in
Control. Employee’s last day of work and termination are effective as of ___, ___  (the
“Termination Date”). Employee desires to receive the payments and benefits provided by the Plan by
executing this Agreement, the applicable Release and the Employee Exit Interview Declaration.



     F. In consideration of the payments and benefits to be provided to Employee by the



 









 




Company pursuant to the Plan, Employee, intending to be bound hereby, has executed this
Agreement.




     NOW, THEREFORE, the parties agree as follows:



     1. Covenant Not to Compete.



          (a) Employee and the Company agree that due to the nature of Employee’s association with the
Company, Employee has confidential and proprietary information relating to the Maxtor Business and
operations of the Company. Employee acknowledges that such information is of extreme importance to
the business of the Company and that disclosure of such confidential information to others,
especially the Company’s Competitors (as defined below), or the unauthorized use of such
information by others would cause substantial loss and harm to the Company.




          (b) Employee and the Company further agree that the market for the Maxtor Business is
intensely competitive and that there are certain companies, as identified in Appendix 1
attached hereto (the “Competitors”), that directly compete with the Company in the Maxtor Business.




          (c) Employee agrees that, for a period of three (3) years following the Termination Date (the
“Noncompetition Period”), he will not, with or without compensation, directly or indirectly
(including without limitation, through any Affiliate (as defined below) of Employee), own, manage,
operate, control or otherwise engage or participate in, or be connected as an owner, partner,
principal, creditor, salesman, guarantor, advisor, member of the board of directors of, employee of
or consultant to, any of the Competitors. Employee agrees to notify the Company within 24 hours of
each employment or consulting position or membership on a board of directors he accepts during the
Noncompetition Period (including the name and address of the hiring party) and will, upon request
by the Company, describe in reasonable detail the nature of his duties in each such position.




          (d) Notwithstanding the foregoing, Employee may own securities in any of the Competitors that
is a publicly held corporation, but only to the extent that Employee does not own, of record or
beneficially, more than one percent (1%) of the outstanding voting securities of any such
Competitor.




          (e) “Affiliate” as used herein, means, with respect to any person or entity, any person or
entity directly or indirectly controlling, controlled by or under direct or indirect common control
with such other person or entity.




          (f) Employee acknowledges and agrees that the restrictions contained in this paragraph are
reasonable and necessary, as there is a significant risk that Employee’s provision of labor,
services or advice or assistance to any Competitor could result in the inevitable disclosure of the
Company’s proprietary information. Employee further acknowledges that the restrictions contained
in this paragraph will not preclude him from engaging in any trade, business or profession for
which he is qualified.




 









 





     2. Nonsolicitation. Employee agrees that he will not during the Noncompetition
Period, directly or indirectly:



          (a) solicit, influence, entice or encourage any person who is an employee of or consultant to
the Company to cease or curtail his or her relationship with the Company; or




          (b) request, advise or induce any of the customers, suppliers, distributors, vendors or other
business contacts of the Company with which Employee had contact while employed by the Company to
withdraw, curtail, cancel or not increase their business with the Company.




     3. Nondisruption. Employee agrees that he will not during the Noncompetition Period,
directly or indirectly, interfere with, disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company and any of its employees,
consultants, customers, suppliers, distributors or vendors.



     4. Nondisparagement. Employee agrees that he will not during the Noncompetition
Period knowingly disparage the business reputation of the Company (or its management team) or take
any actions that are harmful to the Company’s goodwill with its customers, suppliers, distributors,
vendors, employees, consultants, the media or the public.



     5. Confidentiality. Employee covenants that he will not, at any time, directly or
indirectly, use for his own account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company, Confidential Information (as
hereinafter defined). As used herein, “Confidential Information” means information about the
Company of any kind, nature or description, including, but not limited to, any proprietary
knowledge, trade secrets, data, formulae, employees, and client and customer lists and all
documents, papers, resumes, and records (including computer records), which is disclosed to or
otherwise known to Employee as a direct or indirect consequence of his association with the
Company. Employee acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company and that such information gives the Company a competitive
advantage in its business. Employee further agrees to deliver to the Company, at the Company’s
request, all documents, computer tapes and disks, records, lists, data, drawings, prints, notes and
written or electronic information (and all copies thereof) furnished by the Company or created by
Employee in connection with his association with the Company.



     6. Equitable Relief. Employee acknowledges and agrees that the Company’s remedies at
law for breach of any of the provisions of this Agreement would be inadequate and, in recognition
of this fact, Employee agrees that, in the event of such breach, in addition to any remedies at law
it may have, the Company, without posting any bond, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may be available. Employee further acknowledges that
should Employee violate any of the provisions of this Agreement, it will be difficult to determine
the amount of damages resulting to the Company and that in addition to any other remedies it may
have, the Company shall be entitled to temporary and permanent injunctive relief without the
necessity of proving damages.



 









 





     7. Acknowledgement. Each of Employee and the Company acknowledges and agrees that the
covenants and agreements contained in this Agreement have been negotiated in good faith by the
parties, are reasonable and are not more restrictive or broader than necessary to protect the
interests of the parties thereto, and would not achieve their intended purpose if they were on
different terms or for periods of time shorter than the periods of time provided herein or applied
in more restrictive geographical areas than are provided herein.



     8. Separate Covenants. The covenants contained in this Agreement shall be construed
as a series of separate covenants, one for each of the counties in each of the states of the United
States of America, one for each province of Canada, and one for each country outside the United
States and Canada.



     9. Severability. The parties agree that construction of this Agreement shall be in
favor of its reasonable nature, legality and enforceability, and that any construction causing
unenforceability shall yield to a construction permitting enforceability. It is agreed that the
noncompetition, nonsolicitation, nondisruption, nondisparagement and confidentiality covenants and
provisions of this Agreement are severable, and that if any single covenant or provision or
multiple covenants or provisions should be found unenforceable, the entire Agreement and remaining
covenants and provisions shall not fail but shall be construed as enforceable without any severed
covenant or provision in accordance with the tenor of this Agreement. The parties specifically
agree that no covenant or provision of this Agreement shall be invalidated because of overbreadth
insofar as the parties acknowledge the scope of the covenants and provisions contained herein to be
reasonable and necessary for the protection of the Company and not unduly restrictive upon
Employee. However, should a court or any other trier of fact or law determine not to enforce any
covenant or provision of this Agreement as written due to overbreadth, then the parties agree that
said covenant or provision shall be enforced to the extent reasonable, with the court or such trier
to make any necessary revisions to said covenant or provision to permit its enforceability.



     10. Not an Employment Agreement. This Agreement is not, and nothing in this Agreement
shall be construed as, an agreement to provide employment to Employee. The provisions of
Paragraphs 1, 2, 3, 4 and 5 of this Agreement shall be operative regardless of the reasons for any
termination of Employee’s employment and regardless of the performance or nonperformance by any
party under any other section of this Agreement.



     11. Governing Law. This Agreement is made under and shall be governed by, construed
in accordance with and enforced under the internal laws of the State of California.



     12. Entire Agreement. This Agreement, together with the Plan, constitutes and
contains the entire agreement and understanding concerning the subject matter addressed herein
between the parties, and supersedes and replaces all prior negotiations and all agreements proposed
or otherwise, whether written or oral, concerning the subject matter hereof, and the parties hereto
have made no agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth herein or in the Plan.



 









 





     13. Notices. Any notice or other communication under this Agreement shall be in
writing, signed by the party making the same, and shall be delivered personally or sent by
certified or registered mail or overnight courier, postage prepaid, addressed as follows:



	 	 	 	 	 
	            If to Employee:	 	 
	

	 	 	 	 
	 
	 	 	 	 
	

	 	 	 	 
	 
	 	 	 	 
	

	 	 	 	 
	 
	 	 	 	 
	

	 	 	 	 
	 
	 	 	 	 
	            If to Company:
	 	[Maxtor Corporation
	

	 	 	 	500 McCarthy Boulevard
	

	 	 	 	Milpitas, California
	

	 	 	 	Attention: General Counsel]
	 
	

	 	 	 	[or Acquiror/Parent]





or to such other address as may hereafter be designated by either party hereto. All such notices
shall be deemed given on the date personally delivered, mailed or deposited with an overnight
courier.




     14. Dispute Resolution.



          (a) Waiver of Jury Trial. In the event of any dispute relating to or arising out of
this Agreement, the parties agree that such dispute shall be resolved by means of a court trial
conducted by the superior or district court in Santa Clara County, California. The parties hereby
irrevocably waive their respective rights to have any such dispute tried to a jury, and the parties
hereby agree that such courts will have personal and subject matter jurisdiction over all such
disputes. Notwithstanding the foregoing, in the event of any such dispute, the parties may agree
to mediate or arbitrate the dispute on such terms and conditions as may be agreed in writing by the
parties.




          (b) Attorneys’ Fees. The prevailing party shall be entitled to recover from the
losing party its attorneys’ fees and costs incurred in any action brought to resolve any such
dispute.




     15. Amendments; No Waiver.



          (a) No amendment or modification of this Agreement shall be deemed effective unless made in
writing and signed by the parties hereto.




          (b) No term or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel to enforce any provision of this Agreement, except by a statement in writing
signed by the party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall operate only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that specifically
waived.




 









 








     16. Assignment. This Agreement may be assigned by the Company, without the consent of
Employee, to any affiliate of the Company or to any nonaffiliate of the Company that shall succeed
to the business and assets of the Company. This Agreement is personal to Employee, and Employee
may not assign any rights or delegate any responsibilities hereunder.



     17. Further Assurances. From time to time, at the Company’s request and without
further consideration, Employee shall execute and deliver such additional documents and take all
such further action as reasonably requested by the Company to be necessary or desirable to make
effective, in the most expeditious manner possible, the terms of this Agreement, and to provide
adequate assurance of Employee’s due performance hereunder.



     18. Headings. The headings of paragraphs in this Agreement are solely for convenience
of reference and shall not control the meaning or interpretation of any provision of this
Agreement.



     19. Construction. The language of this Agreement and of each and every paragraph,
term and provision of this Agreement shall, in all cases, for any and all purposes, and in any and
all circumstances whatsoever be construed as a whole, according to its fair meaning, not strictly
for or against Employee or the Company and with no regard whatsoever to the identity or status of
any person or persons who drafted all or any portion of this Agreement.



     20. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	 	EMPLOYEE
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	[MAXTOR CORPORATION]
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 
	

	 	Title:	 	 
	

	 	 	 	 






 









 






APPENDIX 1




The “Competitors” are:


1. Each company identified as a direct competitor of Maxtor in Maxtor’s Form 10-K most recently
filed prior to the date of Employee’s termination of employment.



2.



3.





 









 








EXHIBIT G




FORM OF




RESTRICTIVE COVENANTS AGREEMENT

[Executive Officer/Key Employee Termination Upon a Change in Control]





 









 








RESTRICTIVE COVENANTS AGREEMENT

[Executive Officer/Key Employee Termination Upon a Change in Control]




     THIS RESTRICTIVE COVENANTS AGREEMENT is made and entered into as of ___, 200___, by
and between ___, an individual (“Employee”), and [Maxtor Corporation or successor that
agrees to assume the Executive Retention and Severance Plan following a Change in Control], a
___ corporation (the “Company”). For the purposes of this Agreement, the “Company” shall
be deemed to include [Maxtor Corporation or its successor following a Change in Control] and its
majority owned direct and indirect subsidiaries.



RECITALS




     A. Pursuant to that certain Agreement and Plan of Reorganization (the “Reorganization
Agreement”) dated as of ___, ___ by and among [Acquiror Parent], [___
Acquisition Corp.], a ___ corporation and wholly-owned subsidiary of [Acquiror Parent]
(“Sub”), and Maxtor Corporation, a Delaware corporation (“Maxtor”), [Acquiror Parent] is acquiring
Maxtor through a merger of [Maxtor/Sub] with and into [Sub/Maxtor] (the “Merger”) pursuant to which
[Maxtor/Sub], as the surviving corporation, will continue to operate the Maxtor Business as a
wholly-owned subsidiary of [Acquiror Parent].



     B. Employee has been employed by Maxtor as its ___ since ___, ___.



     C. Employee and Maxtor entered into an Agreement to Participate in the Maxtor Corporation
Executive Retention and Severance Plan (such agreement and plan being referred to herein as the
“Plan”), effective as of ___, ___, wherein Employee is entitled to receive certain
severance payments and benefits in the event of a Termination Upon a Change in Control (as defined
by the Plan), provided Employee executes this Agreement, executes and does not revoke the Release
(as defined by the Plan) applicable to Employee and executes the Employee Exit Interview
Declaration. [Acquiror Parent] has assumed the rights and agreed to perform the obligation of
Maxtor under the Plan effective as of the effective time of the Merger.



     D. Employee’s employment is being terminated as a result of a Termination Upon a Change in
Control. Employee’s last day of work and termination are effective as of ___, ___ (the
“Termination Date”). Employee desires to receive the payments and benefits provided by the Plan by
executing this Agreement, the applicable Release and the Employee Exit Interview Declaration.



     E. In consideration of the payments and benefits to be provided to Employee by the Company
pursuant to the Plan, Employee, intending to be bound hereby, has executed this Agreement.



     NOW, THEREFORE, the parties agree as follows:



 









 





     1. Nonsolicitation. Employee agrees that he will not for a period of [two (2) years]
[___ months] following the Termination Date (the “Restricted Period”), directly or
indirectly:



          (a) solicit, influence, entice or encourage any person who is an employee of or consultant to
the Company to cease or curtail his or her relationship with the Company; or




          (b) request, advise or induce any of the customers, suppliers, distributors, vendors or other
business contacts of the Company with which Employee had contact while employed by the Company to
withdraw, curtail, cancel or not increase their business with the Company.




     2. Nondisruption. Employee agrees that he will not during the Restricted Period,
directly or indirectly, interfere with, disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company and any of its employees,
consultants, customers, suppliers, distributors or vendors.



     3. Nondisparagement. Employee agrees that he will not during the Restricted Period
knowingly disparage the business reputation of the Company (or its management team) or take any
actions that are harmful to the Company’s goodwill with its customers, suppliers, distributors,
vendors, employees, consultants, the media or the public.



     4. Confidentiality. Employee covenants that he will not, at any time, directly or
indirectly, use for his own account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company, Confidential Information (as
hereinafter defined). As used herein, “Confidential Information” means information about the
Company of any kind, nature or description, including, but not limited to, any proprietary
knowledge, trade secrets, data, formulae, employees, and client and customer lists and all
documents, papers, resumes, and records (including computer records), which is disclosed to or
otherwise known to Employee as a direct or indirect consequence of his association with the
Company. Employee acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company and that such information gives the Company a competitive
advantage in its business. Employee further agrees to deliver to the Company, at the Company’s
request, all documents, computer tapes and disks, records, lists, data, drawings, prints, notes and
written or electronic information (and all copies thereof) furnished by the Company or created by
Employee in connection with his association with the Company.



     5. Equitable Relief. Employee acknowledges and agrees that the Company’s remedies at
law for breach of any of the provisions of this Agreement would be inadequate and, in recognition
of this fact, Employee agrees that, in the event of such breach, in addition to any remedies at law
it may have, the Company, without posting any bond, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may be available. Employee further acknowledges that
should Employee violate any of the provisions of this Agreement, it will be difficult to determine
the amount of damages resulting to the Company and that in addition to any other remedies it may
have, the Company shall be entitled to temporary and permanent injunctive relief without the
necessity of proving damages.



 









 





     6. Acknowledgement. Each of Employee and the Company acknowledges and agrees that the
covenants and agreements contained in this Agreement have been negotiated in good faith by the
parties, are reasonable and are not more restrictive or broader than necessary to protect the
interests of the parties thereto, and would not achieve their intended purpose if they were on
different terms or for periods of time shorter than the periods of time provided herein or applied
in more restrictive geographical areas than are provided herein.



     7. Separate Covenants. The covenants contained in this Agreement shall be construed
as a series of separate covenants, one for each of the counties in each of the states of the United
States of America, one for each province of Canada, and one for each country outside the United
States and Canada.



     8. Severability. The parties agree that construction of this Agreement shall be in
favor of its reasonable nature, legality and enforceability, and that any construction causing
unenforceability shall yield to a construction permitting enforceability. It is agreed that the
nonsolicitation, nondisruption, nondisparagement and confidentiality covenants and provisions of
this Agreement are severable, and that if any single covenant or provision or multiple covenants or
provisions should be found unenforceable, the entire Agreement and remaining covenants and
provisions shall not fail but shall be construed as enforceable without any severed covenant or
provision in accordance with the tenor of this Agreement. The parties specifically agree that no
covenant or provision of this Agreement shall be invalidated because of overbreadth insofar as the
parties acknowledge the scope of the covenants and provisions contained herein to be reasonable and
necessary for the protection of the Company and not unduly restrictive upon Employee. However,
should a court or any other trier of fact or law determine not to enforce any covenant or provision
of this Agreement as written due to overbreadth, then the parties agree that said covenant or
provision shall be enforced to the extent reasonable, with the court or such trier to make any
necessary revisions to said covenant or provision to permit its enforceability.



     9. Not an Employment Agreement. This Agreement is not, and nothing in this Agreement
shall be construed as, an agreement to provide employment to Employee. The provisions of
Paragraphs 1, 2, 3 and 4 of this Agreement shall be operative regardless of the reasons for any
termination of Employee’s employment and regardless of the performance or nonperformance by any
party under any other section of this Agreement.



     10. Governing Law. This Agreement is made under and shall be governed by, construed
in accordance with and enforced under the internal laws of the State of California.



     11. Entire Agreement. This Agreement, together with the Plan, constitutes and
contains the entire agreement and understanding concerning the subject matter addressed herein
between the parties, and supersedes and replaces all prior negotiations and all agreements proposed
or otherwise, whether written or oral, concerning the subject matter hereof, and the parties hereto
have made no agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth herein or in the Plan.



 









 





     12. Notices. Any notice or other communication under this Agreement shall be in
writing, signed by the party making the same, and shall be delivered personally or sent by
certified or registered mail or overnight courier, postage prepaid, addressed as follows:



	 	 	 
	            If to Employee:	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	            If to Company:
	 	[Maxtor Corporation
	 	 	500 McCarthy Boulevard
	 	 	Milpitas, California
	 	 	Attention: General Counsel]
	 	 	 
	 	 	[or Acquiror/Parent]






or to such other address as may hereafter be designated by either party hereto. All such notices
shall be deemed given on the date personally delivered, mailed or deposited with an overnight
courier.



     13. Dispute Resolution.



          (a) Waiver of Jury Trial. In the event of any dispute relating to or arising out of
this Agreement, the parties agree that such dispute shall be resolved by means of a court trial
conducted by the superior or district court in Santa Clara County, California. The parties hereby
irrevocably waive their respective rights to have any such dispute tried to a jury, and the parties
hereby agree that such courts will have personal and subject matter jurisdiction over all such
disputes. Notwithstanding the foregoing, in the event of any such dispute, the parties may agree
to mediate or arbitrate the dispute on such terms and conditions as may be agreed in writing by the
parties.




          (b) Attorneys’ Fees. The prevailing party shall be entitled to recover from the
losing party its attorneys’ fees and costs incurred in any action brought to resolve any such
dispute.




     14. Amendments; No Waiver.



          (a) No amendment or modification of this Agreement shall be deemed effective unless made in
writing and signed by the parties hereto.




          (b) No term or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel to enforce any provision of this Agreement, except by a statement in writing
signed by the party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall operate only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that specifically
waived.




 









 








     15. Assignment. This Agreement may be assigned by the Company, without the consent of
Employee, to any affiliate of the Company or to any nonaffiliate of the Company that shall succeed
to the business and assets of the Company. This Agreement is personal to Employee, and Employee
may not assign any rights or delegate any responsibilities hereunder.



     16. Further Assurances. From time to time, at the Company’s request and without
further consideration, Employee shall execute and deliver such additional documents and take all
such further action as reasonably requested by the Company to be necessary or desirable to make
effective, in the most expeditious manner possible, the terms of this Agreement, and to provide
adequate assurance of Employee’s due performance hereunder.



     17. Headings. The headings of paragraphs in this Agreement are solely for convenience
of reference and shall not control the meaning or interpretation of any provision of this
Agreement.



     18. Construction. The language of this Agreement and of each and every paragraph,
term and provision of this Agreement shall, in all cases, for any and all purposes, and in any and
all circumstances whatsoever be construed as a whole, according to its fair meaning, not strictly
for or against Employee or the Company and with no regard whatsoever to the identity or status of
any person or persons who drafted all or any portion of this Agreement.



     19. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	 	EMPLOYEE
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	[MAXTOR CORPORATION]
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 
	

	 	Title:	 	 
	

	 	 	 	 







 









 








EXHIBIT H




FORM OF




EMPLOYEE EXIT INTERVIEW DECLARATION