Exhibit 10.26


 


FIRST AMENDMENT


 


SEAGATE DEFERRED
COMPENSATION PLAN


 


This first amendment to the Seagate Deferred
Compensation Plan, as amended and restated as of January 1, 2009 (the “Plan”),
is effective as of January 1, 2010 (the “Amendment”).


 


WHEREAS, the Plan terms are set forth in the
Plan documents, election forms, and employee communications, which collectively
constitute the Plan;


 


WHEREAS, for purposes of this Amendment,
capitalized terms used herein that are not defined shall have the meanings given
to them in the Plan;


 


WHEREAS, Seagate US LLC (the “Company”) maintains
the Plan, which is a nonqualified deferred compensation plan, for the benefit
of eligible employees of the Company and Participating Companies;


 


WHEREAS, nonqualified deferred compensation
plans governing compensation deferred on or after January 1, 2005 must
comply with Internal Revenue Code section 409A (“Section 409A”) or subject
participants to adverse tax consequences;


 


WHEREAS, the Plan was previously amended and
restated as of January 1, 2009 to comply with Section 409A and the
final regulations thereunder to the extent applicable;


 


WHEREAS, the Committee has administered and
construed the Plan consistent with the requirements of Section 409A by:


 


(1) disregarding, as
appropriate, aspects of the definition of “Payment Commencement Date” in Section 1.25
that are (a) inconsistent with the Plan terms as reflected in the election
forms for the 2009 Election Period and that were described in the 2009 Plan
Year open enrollment materials for employees and (b) more restrictive than
the maximum allowable time to commence payments pursuant to Treasury Regulation
§1.409A-3(d);


 


(2) interpreting and
applying the installment payment cashout threshold in Sections 7.2(b) and
7.3(d) to apply only as of the Payment Commencement Date; and


 


(3) interpreting the
phrase “as soon as administratively possible” in Section 7.4(b) consistent
with the Plan terms as reflected in the 2009 Plan Year open enrollment
materials, which provide that distributions due to Unforeseeable Emergencies shall
occur within 90 days of the date the Committee approves a Participant’s distribution
request;


 


WHEREAS, Section 9.4 of the Plan document
provides that the Committee has the authority to adopt and execute any
amendments to the Plan; and


 


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WHEREAS, pursuant to authority granted to the
Committee under Section 9.4, the Committee has determined that it is
appropriate to amend the Plan document to (1) further clarify the Plan
terms in Sections 1.25, 7.2(b), 7.3(d) and 7.4(b) consistent with the
Plan and the Committee’s interpretation of those provisions (as described above);
(2) change the definition of Base Salary and Bonus for purposes of calculating
employee deferrals for 2010 and future Plan Years; (3) provide flexibility
to the Committee to determine Base Salary eligibility thresholds and maximum
and minimum deferral percentages; (4) clarify the effectiveness of bonus
deferral elections; (5) clarify the operation of the Plan terms relating to
Participant elections to change the time and form of payment; (6) amend
the Plan terms prohibiting the adoption of new nonqualified plans following Plan
termination; (7) state the Committee’s intent that the Plan is interpreted
to comply with Code section 409A and that any provisions inconsistent with that
intent shall be deemed null and void to the extent permitted by applicable law;
and (8) incorporate a claims procedure.


 


NOW, THEREFORE, the Plan document is amended in
the manner described in Attachment 1, hereto.


 


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Attachment 1


 


FIRST AMENDMENT


 


SEAGATE DEFERRED COMPENSATION
PLAN


 


This first amendment to the Seagate Deferred
Compensation Plan, as amended and restated as of January 1, 2009 (the “Plan”),
is effective as of January 1, 2010 (the “Amendment”).


 


1.                                       Recital 11 is
hereby deleted in its entirety and replaced with the following:


 


11.  The
Company intends to bifurcate the Plan terms into two documents.  This document contains the Plan terms as
amended and restated to comply with the provisions of Code Section 409A
(the “409A Terms”).  The Plan terms for
deferrals not subject to Code Section 409A are provided in a separate
document (the “Grandfathered Terms”).  The 409A Terms apply to amounts deferred under
this Plan and the Maxtor Corporation Executive Deferred Compensation Plan that
were both earned and vested after December 31, 2004 and any earnings
attributable thereto.  The Grandfathered
Terms apply to amounts deferred under this Plan and the Maxtor Corporation
Executive Deferred Compensation Plan that were earned and vested prior to January 1,
2005 and any earnings attributable thereto.


 


This amendment and restatement shall not
affect Grandfathered Terms.  The general
purpose of this amendment and restatement is to comply with the provisions of Code
Section 409A, and the Company intends for this Plan document to be interpreted
accordingly.  From January 1, 2005
to the effective date hereof, the Company operated and administered the Plan in
all material respects in good faith compliance with the requirements of Code Section 409A.


 


2.                                       The definitions
in Sections 1.2, 1.5, 1.19 and 1.25 are deleted in their entirety and replaced
with the following new Sections 1.2, 1.5, 1.19 and 1.25:


 


1.2.          Base
Salary.  “Base Salary” means the Employee’s base salary for the Plan Year, and
does not include any other form of compensation such as Annual Bonuses,
Commissions, restricted stock, proceeds from stock options or stock
appreciation rights, expatriate premiums, hypothetical tax payments for
expatriates, severance payments, moving expenses, car or other special
allowance, non-monetary awards, other special compensation, and any other
similar amounts paid by the Company or any Participating Company to an Eligible
Employee whether or not includible in taxable income.  Base Salary is
determined before:  (a) any reduction pursuant to Code sections 125, 132(f)(4),
or 401(k); (b) any reduction to reflect a deferral election in accordance
with this Plan; (c) after-tax withholdings for insurance premium payments,
including accident, death and disability, and life insurance premiums; and (d) Social
Security and Medicare 


 


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withholding
obligations imposed on the Employer and any other withholding requirements
imposed by law with respect to such amounts.


 


1.5           Annual
Bonus.  “Annual Bonus” means the performance-based
(within the meaning of Code Section 409A) cash incentive compensation payable
to a Participant under any bonus and cash incentive plans of the Company or a
Participating Company.  For purposes of
the Plan, Annual Bonus shall not include any discretionary bonus payments,
including Reward and Recognition bonuses.


 


1.19         Eligible
Employee.  “Eligible Employee” means
an Employee who is in a select group of management or highly compensated
Employees including, without limitation, (i) all vice presidents and
equivalent positions (or other high-level technical positions) and above, and (ii) any
Employee who, for a relevant Plan Year, has a Base Salary equal to or in excess
of the amount set from time to time by the Committee, and who is selected for
participation by the Committee, both in the Committee’s sole and absolute
discretion.


 


1.25         Payment
Commencement Date.  “Payment
Commencement Date” means as follows: (i) with respect to payments due to
Disability or death, as soon as administratively possible after the first day
of the month following the end of the calendar quarter in which the Participant
dies or suffers a condition that constitutes a Disability; (ii) with respect to
payments due to separation from service, during the month following the end of
the calendar quarter in which the Participant separates from service, or,
during the year following the year in which the Participant separates from
service, depending on the Participant’s election, and (iii) with respect
to Scheduled In-Service Withdrawals, as set forth in Section 7.3(d).  If a Participant has not elected a Payment
Commencement Date under this Section 1.25, the Payment Commencement Date
shall be during the first month following the end of the calendar quarter in
which the Participant has a Distribution Event.


 


Notwithstanding any elections by a
Participant, payments with respect to any Distribution Event may commence
between the date of the Payment Commencement Date and the end of the year in
which the Payment Commencement Date occurs, or if later, on or before the 15th
day of the third calendar month following the Payment Commencement Date
provided, however, that a Participant will not be permitted, directly or
indirectly, to designate the taxable year of the payment.  Any payment that complies with this Section and
the payment delay for Specified Employees provided in Section 1.17  shall be deemed for all purposes to comply with the Plan
requirements regarding the time and form of payment.


 


3.                                       The Plan is
hereby amended by replacing “Bonus” with “Annual Bonus” everywhere that “Bonus”
appears in the Plan.


 


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4.                                       Section 3.1(b) is
hereby amended by deleting and replacing the last paragraph in its entirety
with the following:


 


; provided, however, that, to the extent permitted by Code Section 409A,
no election shall be effective to reduce the amount actually paid to an
Eligible Employee for a calendar year to an amount that is less than the amount
necessary to pay (i) FICA and other employment, state, local and foreign
taxes payable with respect to the deferred amounts; (ii) any amounts
necessary to satisfy any wage garnishment or similar obligations; and (iii) any
amounts necessary to satisfy any debt owed by the Participant to the Company.


 


5.                                       Section 3.1(c) is
hereby amended by deleting and replacing Section 3.1(c) in its
entirety with the following:


 


(c)           Deferral
Limits.  The Committee may change the
maximum deferral percentages and establish minimum deferral percentages from time
to time in its sole discretion.  Any such
limits shall be communicated by the Committee.


 


6.                                       Section 3.1(d) is hereby amended by adding the following
at the end of that Section:


 


Notwithstanding any Plan provision to the contrary, an election to
defer Annual Bonuses will not be effective unless (1) the Participant performs
services continuously from the later of the beginning of the performance period
or the date that the performance criteria are established through the date the
election is filed and (2) the election is filed and becomes irrevocable no
later than the earlier of: (a) six months preceding the end of the performance
period to which the Annual Bonus relates; or (b) the date as of which the
Annual Bonus has become readily ascertainable, within the meaning of Code Section 409A.


 


7.                                       Section 3.1(f) is
hereby amended by deleting the last sentence of that Section.


 


8.                                       Section 7.2(b) is
hereby amended by deleting and replacing the last sentence in that Section with
the following:


 


Notwithstanding any elections by the
Participant, if the Participant’s entire or remaining Distributable  Amount becomes Fifty
Thousand Dollars ($50,000) or less as of the Payment Commencement Date, such
Distributable Amount shall be distributed in a lump sum on the Payment Commencement Date.


 


9.                                       Section 7.2(c)(1) is
hereby amended by adding the following sentence immediately before the second
to last sentence in that Section:


 


For purposes of the commencement date
referred to in clause (i) of the preceding sentence, all distributions are
considered scheduled to commence on the Payment Commencement Date except that
distributions on account of separation from 


 


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service are considered scheduled to commence
on the first day of the month following the end of the calendar quarter in
which the Participant separated from service or January 1 of the year
following the year in which the Participant separated from service, depending
on the Participant’s election.


 


10.                                 Section 7.3(d) is
hereby amended by deleting and replacing the first sentence in that Section with
the following:


 


Subject to section 7.5, payment of a
Scheduled In-Service Withdrawal shall be made in either a single lump sum or in
annual installments over a two (2), three (3), four (4) or five (5)-year
period (as elected by the Participant); provided, however, that if a
Participant’s total Distributable Amount for a Scheduled In-Service Withdrawal
is Twenty-Five Thousand Dollars ($25,000) or less as of the Payment
Commencement Date, such Distributable Amount shall be distributed in a lump sum
on the Payment Commencement Date.


 


11.                                 Section 7.4(b) is
hereby amended by deleting and replacing the last sentence in that Section with
the following:


 


Subject to the foregoing, payment of any
amount with respect to which a Participant has filed a request under this Section shall
be made in a single cash lump sum within 90 days after the date the Committee
approves the Participant’s request.


 


12.                                 Section 9.4
is hereby amended by deleting and replacing subsection (ii) in the last
sentence with the following:


 


(ii) the Company does not adopt any new
nonqualified deferred compensation “account balance plan” (as such term is
defined under Code Section 409A), for three years following the date of
such Plan termination.


 


13.                                 Article IX
is hereby amended by adding the following new Section 9.11 at the end thereof:


 


9.11         Code Section 409A.  The Plan is intended to be a nonqualified
deferred compensation plan within the meaning of Code Section 409A and
shall be interpreted to meet the requirements of Code Section 409A.  To the extent that any provision of the Plan
would cause a conflict with the requirements of Code Section 409A, or
would cause the administration of the Plan to fail to satisfy Code Section 409A,
such provision shall be deemed null and void to the extent permitted by
applicable law.  Nothing herein shall be
construed as a guarantee of any particular tax treatment to a Participant.


 


14.                                 The Plan is
hereby amended by adding the following new Article X to the end thereof:


 


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ARTICLE X

CLAIMS PROCEDURES


 


10.1         Claim
for Benefits.  Any claim for benefits
under this Plan must be submitted in writing to the Committee no later than 90
days after the date on which the event that caused the claim to arise
occurred.  If a claim for benefits is
wholly or partially denied, the Committee, or its delegate, shall so notify the
claimant within 90 days after receipt of the claim.  If the Committee determines that an extension
is necessary, the Committee will notify the claimant within the initial 90-day
period that the Committee needs up to an additional 90 days to review the
claim.  In the case of a claim for disability benefits, the Committee shall
notify the claimant within 45 days after the claim is received unless the
Committee determines that an extension of time for processing is required due
to matters beyond the control of the Plan, in which case written notice of the
extension shall be furnished to the claimant prior to termination of the
original 45-day period.  Such extension shall
not exceed 30 days from the end of the initial period.  If, prior to the end of the first 30-day
extension period, the Committee determines that, due to matters beyond the
control of the Plan, an additional extension of time for processing is required,
written notice of a second 30-day extension shall be furnished to the claimant
prior to termination of the first 30-day extension.


 


10.2         Notice
of Denial.  The notice of denial
shall be written in a manner calculated to be understood by the claimant and
shall contain (a) the specific reason or reasons for denial of the claim, (b) specific
references to the pertinent Plan provisions upon which the denial is based, (c) a
description of any additional material or information necessary to perfect the
claim together with an explanation of why such material or information is
necessary and (d) an explanation of the claims review procedure and time
limits, including a statement of the claimant’s right to bring a civil action
under section 502(a) of ERISA following an adverse benefit determination
on review.  In the case of a claim for
disability benefits, the notification shall also advise the claimant whether
the Committee’s denial relied upon any specific rule, guideline, protocol or
scientific or clinical judgment.  The
decision or action of the Committee shall be final, conclusive and binding on
all persons having any interest in the Plan, unless a written appeal is filed
as provided in Section 10.3 hereof.


 


10.3         Review
of Claim.  Within 60 days after the
receipt by the claimant of notice of denial of a claim, the claimant may (a) file
a request with the Committee that it conduct a full and fair review of the
denial of the claim, (b) receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other information
relevant to the claim for benefits, and (c) submit questions and comments
to the Committee in writing.


 


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10.4         Decision
After Review.  Within 60 days after
the receipt of a request for review under Section 10.3, the Committee, or
its delegate, shall deliver to the claimant a written decision with respect to
the claim, except that if there are special circumstances which require more
time for processing, the 60-day period shall be extended to 120 days upon
notice to that effect to the claimant. 
The decision shall be written in a manner calculated to be understood by
the claimant and shall (a) include the specific reason or reasons for the
decision, (b) contain a specific reference to the pertinent Plan provisions
upon which the decision is based, (c) a statement that the claimant is
entitled to receive, upon request and free of charge, reasonable access to, and
copies of, all documents, records, and other information relevant to the claim
for benefits, and (d) a statement of the claimant’s right to bring a civil
action under section 502(a) of ERISA. 
In the case of a claim for disability benefits, the notice shall set
forth:  (1) whether the Committee’s
denial relied upon any specific rule, guideline, protocol or scientific or
clinical judgment; and (2) the following statement: “You and your Plan may
have other voluntary alternative dispute resolution options, such as
mediation.  One way to find out what may
be available is to contact your local U.S. Department of Labor Office and your
State insurance regulatory agency.”


 


10.5         Legal
Action.  A claimant may not bring any
legal action relating to a claim for benefits under the Plan unless and until
the claimant has followed the claims procedures under the Plan and exhausted
his or her administrative remedies under such claims procedures.


 


10.6         Discretion
of the Committee.  All
interpretations, determinations and decisions of the Committee, or its
delegate, with respect to any claim shall be made in its sole discretion, and
shall be final and conclusive.


 


15.                                 In all respects
not amended, the Plan is hereby ratified and confirmed.


 


In WITNESS WHEREOF, the Seagate Benefits
Administrative Committee, by its duly authorized officer, has executed this
Amendment to the Plan on December 21, 2009.


 


 


	
  SEAGATE BENEFITS ADMINISTRATIVE COMMITTEE

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JOY NYBERG

  	
   

  
	
  Title: Vice President Compensation and Benefits

  	
   

  
			



 


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