Exhibit 10.26


 


CONFIDENTIAL
SEPARATION and RELEASE AGREEMENT


 


This Confidential
Separation and Release Agreement (this “Agreement”) is made by and between
Brian S. Dexheimer (“Executive”) and Seagate Technology (US) Holdings, Inc.
and Seagate Technology (collectively, “Seagate”).  Executive and Seagate are called the “Parties”
in this Agreement.


 


Recitals


 


A.                                   Executive has served as a Division
President of Seagate Technology and an employee of Seagate Technology (US)
Holdings, Inc..


 


B.                                     Executive’s employment with Seagate
terminated on July 3, 2009 as part of a reduction in force, and the
Parties have agreed to resolve all outstanding issues pertaining to Executive’s
employment in accordance with the terms and conditions of this Agreement and
the Seagate Technology Executive Officer Severance and Change in Control (CIC)
Plan (the “Plan”). This Agreement shall be deemed controlling to the extent its
terms vary from those of the Plan.


 


C.                                     Executive has had 60 days in which to
consider and execute this Agreement, and is advised to consult an attorney
about it. Executive acknowledges that once he executes this Agreement, he will
have an additional 7 days in which to revoke his execution. Executive’s written
notice of revocation shall be delivered to Kenneth M. Massaroni either in
person or mailed by certified mail, return receipt requested, and addressed to:


 


Kenneth M.
Massaroni


Senior Vice
President and General Counsel


Seagate Technology


920 Disc Drive


Scotts Valley,
California 95066


 


If Executive does not
timely revoke his execution of this Agreement, then the eighth day following
the date of his execution will be the “Effective Date” of this Agreement.


 


D.                                    By executing this Agreement, Executive
represents that he understands the terms and effect of this Agreement and
enters into it knowingly and voluntarily.


 


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Based on these recitals,
the Parties agree as follows:


 


Terms


 


1.                                       Upon his execution of this Agreement,
Executive will tender to Kenneth M. Massaroni, Seagate’s General Counsel, his
written resignation as a Division President of Seagate Technology effective July 3,
2009 (the “Resignation Date”).  Executive’s
resignation letter shall be in the form attached hereto as Exhibit “A”.  Executive will also, as requested, tender his
resignation from all officer or director positions that he may hold with
Seagate Technology or any of its subsidiaries and affiliates, with the
effective dates of these resignations to be as designated by Seagate; Executive
agrees that he will cooperate with Seagate in facilitating preparation of and
signing any documentation that may reasonably be required in connection with
formalizing such officer or director resignations.  On the Resignation Date, Seagate shall pay
Executive all unpaid wages owed through such date.


 


2.                                       For a period of five years following the
Resignation Date, Executive will comply, at Seagate’s sole cost, with any
reasonable request by Seagate or its attorneys to assist and/or cooperate in
connection with any pending or future claim, negotiation, litigation,
investigation, administrative proceeding or other dispute involving Seagate or
any of its affiliates. Seagate will reimburse Executive for all reasonable,
approved out-of-pocket expenses incurred in providing such assistance,
including reasonable travel expenses directly incurred in connection with such
assistance and/or cooperation.


 


3.                                       Executive acknowledges that he has had
access to highly sensitive Seagate confidential, proprietary and/or trade
secret information, and agrees he shall not, either before the Resignation Date
or thereafter, disclose to any person or entity any Seagate confidential,
proprietary and/or trade secret information, whether directly or indirectly, or
use such information in any way except in the course of providing services for
Seagate, as authorized in writing by Seagate, or as required to be disclosed by
applicable law.  Executive acknowledges
and agrees that his duties and obligations under the Seagate At-Will
Employment, Confidential Information, and Invention Assignment Agreement (other
than the paragraph thereof entitled “Arbitration” which is hereby deleted from
such agreement and shall be of no further force or effect) shall remain in full
force and effect and that he will adhere to them.  Executive acknowledges that he may not
disclose to any person or entity any Seagate confidential, proprietary and/or
trade secret information, whether directly or indirectly, after termination of
his employment except in the course of providing services for Seagate, as
authorized in writing by Seagate, or as required to be disclosed by applicable
law.  Executive further acknowledges that
such information includes, but is not limited to, formulae, customer lists, patterns,
devices, inventions, processes, compilations of information, files, records,
documents, drawings, specifications, and equipment


 


4.                                       Executive acknowledges and affirms that
he has returned to Seagate, or will return to Seagate on the Effective
Date:  (i) all documents, records,
procedures, books, notebooks and other documentation in any form whatsoever,
including but not limited to written, audio, video or electronic, containing
any information pertaining to Seagate, including any and all copies of such
documentation then in Executive’s possession or control, regardless of whether
such documentation was prepared or compiled by Executive, Seagate, other
employees of Seagate or any of their respective


 


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representatives, agents
or independent contractors; and (ii) all equipment or tangible personal
property entrusted to Executive by Seagate.


 


5.                                       Executive represents and hereby reaffirms
that he has disclosed to Seagate any information in his possession concerning
any conduct involving Seagate or any of its affiliates, that Executive has any
reason to be believe may be unlawful or may violate Seagate policies in any
material respect.


 


6.                                       Seagate will provide the following
compensation and benefits to Executive (or, in the event of Executive’s death,
to Executive’s surviving spouse, or, if none, then to Executive’s estate) as
consideration for his execution of this Agreement and compliance with the terms
and conditions hereof:


 


a.               Seagate shall provide Executive, within
15 business days after the later to occur of the Resignation Date or Effective
Date, a lump-sum payment of $2,332,887, subject to applicable tax withholdings
and deductions.  Seagate will not contest
any claim Executive makes for public unemployment compensation.


 


b.              Seagate has granted Executive various
equity-based awards (the “Equity Awards”) under the Seagate Technology 2004
Stock Compensation Plan (the “2004 Plan”) and/or the Seagate Technology 2001
Share Option Plan (“2001 Plan”).  All of
the Equity Awards granted to Executive that remained unvested as of the
Resignation Date are cancelled effective that same date.  Executive’s period in which to exercise any
vested Equity Award granted in the form of an option will be limited to three
months from the Resignation Date and shall be subject to all terms and
conditions set forth in the 2004 Plan or 2001 Plan, as applicable, and the
specific option agreement evidencing such Equity Award.  Executive’s Equity Awards granted in a form
other than options shall be subject to all terms and conditions set forth in
the 2004 Plan and the applicable award agreements evidencing such Equity
Awards.


 


c.               During the twelve month period following
the Resignation Date, Seagate will arrange for Executive to receive
outplacement assistance from Right Management Consultants.


 


d.              Executive’s Seagate-provided health
insurance benefits coverage will cease on July 31, 2009; however,
Executive will be given the opportunity to elect to continue, at his own
expense, his Seagate health insurance coverage pursuant to COBRA.  Further, Seagate will, within 15 business
days following the later to occur of the Resignation Date or Effective Date,
provide Executive with a lump-sum payment of $29,944, subject to applicable
withholdings, which amount is intended to help defray Executive’s anticipated
costs of obtaining continued health insurance coverage pursuant to COBRA.


 


7.                                       Executive, on behalf of himself, his
heirs, executors, administrators, successors, and assigns, fully and forever
releases and discharges Seagate, its current,


 


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former and future
parents, subsidiaries, affiliated companies, related entities, employee benefit
plans, and their fiduciaries, predecessors, successors, officers, directors,
members, managers, shareholders, agents, employees and assigns (each a “Released
Party”) from any and all claims, causes of action, and liabilities up through
the date of his execution of this Agreement. 
The claims subject to this release include, but are not limited to, those
relating to his employment with Seagate and/or any predecessor to Seagate and
the termination of such employment.  All
such claims (including related attorneys’ fees and costs) are barred without
regard to whether those claims are based on any alleged breach of a duty
arising in statute, contract, or tort. 
This expressly includes waiver and release of any rights and claims
arising under any and all laws, rules, regulations, and ordinances, including,
but not limited to:  Title VII of the
Civil Rights Act of 1964; the Older Workers Benefit Protection Act; the
Americans With Disabilities Act; the Age Discrimination in Employment Act; the
Fair Labor Standards Act; the National Labor Relations Act; the Family and
Medical Leave Act; the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”); the Workers’ Adjustment and Retraining Notification Act;
Sarbanes-Oxley Act; the Equal Pay Act of 1963; the California Fair Employment
and Housing Act, and any similar law of any other state or governmental entity.


 


This release does not
extend to, and has no effect upon, (i) any benefits that have accrued, and
to which Executive may have become vested, under any employee benefit plan
within the meaning of ERISA sponsored by the Company, (ii) reimbursement of
travel or other business expenses incurred by Executive in the ordinary course
of business and consistent with past practice and Seagate’s policies and prior
to the Resignation Date, (iii) any rights that (but for this release)
Executive has to be indemnified (and advanced expenses) arising under
applicable law, the articles of incorporation or bylaws or similar constituent
documents of Seagate, any indemnification agreement between Executive and
Seagate, or any directors’ and officers’ liability insurance policy of Seagate
or its affiliates; and (iv) Executive’s rights to the payments and
benefits specified in Paragraph 6 of this Agreement and enforcement of any
other obligation of Seagate to Executive under this Agreement.  Executive acknowledges that his receipt of
the payment and benefits described in Paragraph 6 of this Agreement will fully
satisfy all obligations owed to him by Seagate in connection with his
termination, whether as described in the Seagate Technology Executive Officer
Severance and Change in Control Plan, this Agreement, or otherwise.


 


Executive acknowledges
that nothing in this release shall prohibit him from exercising legal rights
that are, as a matter of law, not subject to waiver such as: (a) his
rights under applicable workers’ compensation laws; (b) his right, if any,
to seek unemployment benefits; and (c) his right to file a charge with the
Equal Opportunity Commission (EEOC) challenging the validity of his waiver of
claims under the ADEA.


 


8.                                                   Executive waives any rights under Section 1542
of the Civil Code of the State of California. 
Section 1542 states:


 


“A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of
executing the


 


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release,
which, if known to him or her, must have materially affected his or her
settlement with the debtor.”


 


9.                                                   Executive agrees that he will not file or
cause to be filed any action, complaint, suit, claim, charge or motion with any
governmental agency, court or tribunal relating to any claim within the scope
of the general release set forth in Paragraph 7.  Executive represents and warrants that he has
not, with respect to any transaction or state of facts existing prior to the date
hereof, filed any action, complaint, suit, claim, charge or motion against any
Released Party with any governmental agency, court or tribunal.  Executive represents and warrants that he has
not assigned any claim released herein, or authorized any other person to
assert any such claim on his behalf. 
Executive agrees that he will not voluntarily assist any person in
bringing or pursuing, or preparing to bring or pursue, any action, complaint,
suit, claim, charge or motion against Seagate or any of its affiliates or any
Released Party, except as may be specifically required pursuant to a subpoena
or to the extent compelled to do so by law, and in such event, shall notify
Seagate in writing in the same manner as set forth in Recital C above as soon
as such circumstances come to the attention of Executive.


 


10.                                             Executive agrees that for a period of one
year following the Resignation Date he will not, whether on Executive’s own
behalf or on behalf of or in conjunction with any person, company, business
entity or other organization whatsoever, directly or indirectly:


 


(a)                                  solicit or encourage
any employee of Seagate, its parents, subsidiaries, or affiliates (the “Company”)
to leave the employment of the Company; or


 


(b)                                 encourage to cease to
work with the Company any consultant then under contract with the Company.


 


Executive and Seagate: (i) intend
that this Paragraph 10 be and become valid and enforceable, (ii) acknowledge
and agree that the provisions of this Paragraph 10 are reasonable and necessary
to protect the legitimate interests of the business of the Company and (iii) agree
that the violation of any provisions of this Paragraph 10 might result in
irreparable injury to the Company, the exact amount of which would be difficult
to ascertain and the remedies at law for which may not be reasonable or
adequate compensation to the Company for such a violation.  Executive agrees that if he violates or
threatens to violate any provisions this Paragraph 10, in addition to any other
remedy which may be available at law or in equity, including, but not limited
to, the cessation of any payments or benefits to be provided to this Agreement,
the Company shall be entitled to seek specific performance and injunctive
relief, and without the necessity of proving actual damages.


 


11.                                             All taxes that are required by law to be
paid by Executive in connection with this Agreement will be his sole
responsibility and Executive agrees that Seagate will have no responsibility
whatsoever with respect to these taxes, except as to legally required reporting
and withholding obligations.


 


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12.                                             This Agreement and the documents it
references constitute the entire agreement between the Parties with respect to
the matters covered and supersede all prior and contemporaneous agreements,
representations, and understandings of the parties with respect to such
matters, including but not limited to any previously-existing contract,
agreement, understanding, or policy relating to separation or severance pay in
the event of termination of employment. 
Parole evidence will be inadmissible to show agreement by and between
the parties to any term or condition contrary to or in addition to the terms
and conditions contained in this Agreement.


 


13.                                             This Agreement can be amended, modified
or terminated only by a writing executed by both Executive and an authorized
representative of Seagate.


 


14.                                             This Agreement is made, and will be
construed, under California law, without regard to any provisions thereof
regarding conflicts of laws.  The parties
further agree that the state or federal courts of California shall be the
exclusive and only courts with jurisdiction to hear and decide any claim,
dispute or proceeding arising from or related to this Agreement, and that venue
shall be proper only in these courts.


 


15.                                             If any provision of this Agreement is
held to be void, voidable, unlawful, or unenforceable, the remaining portions
of this Agreement will continue in full force and effect, except that if
Executive’s release of claims set forth in Paragraphs 7 and 8 are held to be
invalid or unenforceable then at its option Seagate may declare the Agreement
null and void and recover from Executive the value of compensation provided to
him under Paragraph 6 above.


 


16.                                             The Parties understand that each party is
responsible for bearing his or its own costs and attorneys’ fees incurred in
connection with the preparation of this Agreement.


 


17.                                             Executive represents and acknowledges
that in executing this Agreement, he does not rely and has not relied upon any
representation or statement not set forth herein made by Seagate or any of
Seagate’s agents, representatives or attorneys with regard to the subject
matter, basis or effect of this Agreement.


 


18.                                             This Agreement may be executed in
counterpart originals with each counterpart to be treated the same as a single
original.  The Parties agree that this
Agreement may be executed using facsimile signatures and that such signatures
shall be deemed to be valid as original signatures.  Executive, by his signature below, states
that he has read this Agreement in its entirety, fully understands its terms
and its binding effect on him, and signs this Agreement voluntarily and of his
own free will.


 


19.                                             The intent of the Parties is that payments
and benefits under this Agreement comply with Section 409A of the Internal
Revenue Code of 1986, as amended and the regulations and other guidance
promulgated thereunder and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted to be in compliance therewith.


 


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20.                                             By signing this Release, Executive hereby
acknowledges and confirms the following:


 


(a)  Executive is
providing the release and discharge set forth in this Agreement in exchange for
consideration in addition to anything of value to which the Executive is
already entitled.


 


(b)  The Executive
was hereby advised by Seagate in writing to consult with an attorney of the
Executive’s choice prior to signing this Agreement and to have such attorney
explain to the Executive the terms of this Agreement including, without
limitation, the terms relating to his release of claims arising under the ADEA.


 


(c)  The Executive
has read this Agreement carefully and completely and understands each of the
terms thereof.


 


(d)  The Executive
is aware that he has sixty (60) days in which to consider the terms of the
release contained in this Agreement.  To
the extent the Executive has executed this Agreement within less than sixty
(60) days after its delivery to the Executive, the Executive hereby
acknowledges that the Executive’s decision to execute this Agreement prior to
the expiration of such sixty-day (60) period was entirely voluntary.  For a period of seven (7) days following
the Executive’s execution and delivery of this Agreement in the manner detailed
above in Recital C, the Executive has the right to revoke the release contained
in this Agreement commencing immediately following the date the Executive signs
and delivers this Agreement to the Company. 
This Agreement shall not become effective or enforceable until the
revocation period has expired.  If the
last day of the revocation period is a Saturday, Sunday, or legal holiday, then
the revocation period shall not expire until the next following day that is not
a Saturday, Sunday, or legal holiday.


 


(e.)  As set forth in section 7(f)(1)(C) of
the ADEA, as added by the Older Workers Benefit Protection Act of 1990,
Executive understands that he is not waiving any rights or Claims provided
under ADEA that may arise after this Agreement is executed.


 


(f.)  Seagate has attached to this contract as Exhibit B
disclosures required by the Older Workers Benefit Protection Act of 1990.


 


[REMAINDER
OF PAGE INTENTIONALLY BLANK]


 


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PLEASE READ
CAREFULLY.  THIS SEPARATION AGREEMENT AND
GENERAL RELEASE OF CLAIMS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN OR UNKNOWN
CLAIMS.


 


EXECUTIVE
IS HEREBY ADVISED THAT HE HAS UP TO SIXTY (60) CALENDAR DAYS TO REVIEW AND
CONSIDER THIS AGREEMENT AND IS HEREBY ADVISED IN WRITING TO CONSULT WITH AN
ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT.


 


EXECUTIVE
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT DO
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL SIXTY (60) CALENDAR DAY
CONSIDERATION PERIOD.


 


HAVING
ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES AND TO RECEIVE THE
SUMS AND BENEFITS DETAILED IN THIS AGREEMENT, EXECUTIVE FREELY AND KNOWINGLY,
AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT.


 


THE PARTIES HAVE
READ THIS RELEASE, UNDERSTAND AND ACCEPT EACH OF ITS TERMS, AND AGREE TO BE
FULLY BOUND HEREUNDER.


 


 


	
  Dated:
                                ,
  2009.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Brian S.
  Dexheimer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Seagate Technology

  
	
   

  	
   

  	
  Seagate Technology (US)
  Holdings, Inc.

  
	
   

  	
   

  	
   

  
	
  Dated:
                                ,
  2009.

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Kenneth M.
  Massaroni

  
	
   

  	
   

  	
  Senior Vice
  President and General Counsel

  



 


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EXHIBIT A


 


Kenneth M. Massaroni


Senior Vice President and
General Counsel


Seagate Technology LLC


920 Disc Drive


Scotts Valley, California
95066


 


Re:                               Notice of Resignation


 


Dear Mr. Massaroni:


 


This letter serves to
confirm my resignation as a Division President of Seagate Technology effective July 3,
2009.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Brian
  S. Dexheimer

  



 


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  EXHIBIT B

  



 


SEAGATE TECHNOLOGY


 


MEMORANDUM


 


	
  TO:

  	
  Brian S. Dexheimer

  
	
  FROM:

  	
  Lisa Kirk—Vice
  President, Human Resources

  
	
  DATE:

  	
  July 3, 2009

  
	
   

  	
   

  
	
  RE:

  	
  Disclosure Required by Older
  Workers Benefits Protection Act

  



 


You and other executives
selected for the Seagate Technology Executive Officers Severance and Change in
Control (CIC) Plan are eligible to receive certain exit benefits from Seagate
as described in the Confidential Separation and Release Agreement you were
provided to consider.  To receive the
benefits described, you must sign the Confidential Separation and Release
Agreement and return it to Kenneth M. Massaroni, Senior Vice President and General
Counsel, in the manner and time detailed in the Confidential Separation and
Release Agreement.


 


In the attached list,
Seagate is providing you with information showing the number of employees
within your decisional unit who are eligible and ineligible for the benefits
described in the CIC Plan, by job title, pay grade, and age.


 


Decisional units are
defined by management chain, and the head of your decisional unit is Steve
Luczo, which reflects your reporting structure at the time selection decisions were
made.  For purposes of this report, you
are listed within the General Management job function, the GM Division
President job family and title, and the 185 pay grade.  You will find your personal details in row
2.  This


 


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reflects the job
information on record for you as of February 2, 2009.  Employees listed as “ineligible” are
ineligible either because their employment will not be terminated, or because
they are not otherwise eligible for separation benefits.


 


This special separation
program is applicable to those Seagate Vice Presidents and Senior Vice
Presidents terminated as part of the reduction–in-force initiated on or about March 3,
2009, and based on position elimination. 
You can determine your comparison group by locating your
above-referenced position on the attached list. 
The employment termination program is available to executives for 60
days from the date they are notified of their termination of employment.


 


The accompanying chart
was prepared as of June 19, 2009. 
This information is subject to change and may be affected by future
employment decisions.  If you have any
questions about this information, or if you wish to receive more up-to-date
information in the future, contact me at 8-439-5446.


 


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