Exhibit 10.28


 


SEAGATE DEFERRED
COMPENSATION SUB-PLAN


 


 


Amended and Restated as of January 1,
2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Account

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Beneficiary

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.3

  	
  Board of Directors

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.4

  	
  Code

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.5

  	
  Committee

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.6

  	
  Company

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.7

  	
  Compensation

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.8

  	
  Deferred Compensation Distribution

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.9

  	
  Director

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.10

  	
  Disability

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.11

  	
  Distributable Amount

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.12

  	
  Distribution Event

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.13

  	
  Eligible Individual

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.14

  	
  Employee

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.15

  	
  Fund

  	
  3

  
	
   

  	
   

  	
   

  
	
  1.16

  	
  Investment Return

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.17

  	
  Participant

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.18

  	
  Participating Company

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.19

  	
  Payment Commencement Date

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.20

  	
  Plan

  	
  4

  
	
   

  	
   

  	
   

  
	
  1.21

  	
  Plan Year

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  PARTICIPATION

  	
  4

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Participation

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  DEFERRAL ELECTIONS

  	
  5

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Deferral of Deferred Compensation Distributions

  	
  5

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Investment Elections

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  ACCOUNTS

  	
  6

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Participant Accounts

  	
  6

  



 


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  ARTICLE V

  	
  VESTING

  	
  7

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Vesting of Accounts

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  GENERAL DUTIES

  	
  7

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Trustee Duties

  	
  7

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Remittance of Contributions

  	
  7

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Department of Labor Determination

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  DISTRIBUTIONS

  	
  7

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Distribution Options

  	
  7

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Distribution due to Termination of Employment or Long-Term Disability

  	
  7

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Scheduled and Unscheduled In-Service Withdrawals and Accelerated Post
  Termination Distributions

  	
  9

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Unforeseeable Emergency

  	
  11

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  Inability to Locate Participant

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  ADMINISTRATION

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Powers and Duties of the Committee

  	
  12

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Additional Powers of the Committee

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Construction and Interpretation

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Information

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.5

  	
  Compensation, Expenses and Indemnity

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.6

  	
  Quarterly Statements

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  CLAIMS PROCEDURE

  	
  14

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Claim for Benefits

  	
  14

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Notice of Denial

  	
  14

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Review of Claim

  	
  14

  
	
   

  	
   

  	
   

  
	
  9.4

  	
  Decision After Review

  	
  14

  
	
   

  	
   

  	
   

  
	
  9.5

  	
  Legal Action

  	
  15

  
	
   

  	
   

  	
   

  
	
  9.6

  	
  Discretion of the Committee

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
  15

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Unsecured General Creditor

  	
  15

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Restriction Against Assignment

  	
  15

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Withholding

  	
  16

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  Amendment, Modification, Suspension or Termination

  	
  16

  
	
   

  	
   

  	
   

  
	
  10.5

  	
  Governing Law

  	
  16

  



 


ii

















 


	
  10.6

  	
  Receipt or Release

  	
  16

  
	
   

  	
   

  	
   

  
	
  10.7

  	
  Payments on Behalf of Persons under Incapacity

  	
  16

  
	
   

  	
   

  	
   

  
	
  10.8

  	
  No Employment Rights

  	
  17

  
	
   

  	
   

  	
   

  
	
  10.9

  	
  Headings, etc., Not Part of Agreement

  	
  17

  
	
   

  	
   

  	
   

  
	
  10.10

  	
  Liability
  Between Company and Participating Companies

  	
  17

  



 


iii

















 


SEAGATE DEFERRED
COMPENSATION SUB-PLAN


 


The Seagate Deferred
Compensation Sub-Plan (the “Plan”) is hereby amended and restated effective as
of January 1, 2010 by Seagate US LLC (the “Company”) and the Participating
Companies (see Sections 1.6 and 1.18) for the purpose of providing certain
supplemental retirement benefits.


 


RECITALS


 


1.             The Company previously established the Plan for the
benefit of the members of the Board of Directors of the Company or Participating
Companies, and for a select group of management or highly compensated employees
of the Company and Participating Companies who were participants in the Seagate
Technology HDD Holdings Deferred Compensation Plan (also sometimes referred to
as the “Seagate Rollover Deferred Compensation Plan”), and who deferred the
receipt of amounts they would have otherwise received from the Seagate
Technology HDD Holdings Deferred Compensation Plan.


 


2.             Under the Plan, the Company and each Participating
Company is obligated to pay vested accrued benefits to the Plan participants
and their beneficiaries, to the extent applicable, from the general assets of
the Company and each Participating Company.


 


3.             The Company established an irrevocable trust
(hereinafter called the Trust) by entering into a trust agreement (the “Trust
Agreement”) with Wells Fargo Bank, N.A., (the “Trustee”).


 


4.             The Company and each Participating Company contributed
assets to the Trust with the intent that such contributions will be held by the
Trustee and invested, reinvested and distributed, all in accordance with the
provisions of this Plan and the Trust Agreement.


 


5.             The Company and each Participating Company intend that
amounts contributed to the Trust (and the earnings thereon) shall be used by
the Trustee to satisfy the respective liabilities of the Company and each
Participating Company under the Plan with respect to each Plan participant for
whom an Account has been established and such utilization shall be in
accordance with the procedures set forth herein.


 


6.             The Company intends that the Trust be a “grantor trust”
with the principal and income of the Trust treated as assets and income of the
Company and each Participating Company, as applicable, for Federal and state
income tax purposes.


 


7.             The Company and each Participating Company intend that
their respective share of the assets of the Trust shall at all times be subject
to the claims of the general creditors of the Company and each Participating
Company, as applicable, as provided in the Trust Agreement.


 


8.             The Company and each Participating Company intend that
the existence of the Trust shall not alter the characterization of the Plan as “unfunded”
for purposes of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and shall not be construed to provide income to Plan participants
under the Plan prior to actual payment of the vested accrued benefits
thereunder.


 


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9.             The
Company intends that no amounts deferred under the Plan will be subject to Section 409A
of the Code, and that the Plan shall be interpreted, operated and administered
in accordance with that intent.


 


10.           The
Company wishes to amend and restate the Plan to accurately reflect the Company’s
consistent interpretation, operation and administration of the Plan terms.


 


NOW THEREFORE, the Company
hereby amends and restates the Plan as follows:


 


ARTICLE I


 


DEFINITIONS


 


Whenever the following words
and phrases are used in this Plan, with the first letter capitalized, they
shall have the meanings specified below:


 


1.1           Account. “Account” means, for
each Participant, the bookkeeping account maintained by the Committee that is
credited with amounts equal to (a) the portion of the Participant’s
Deferred Compensation Distributions that he or she elects to defer, and (b) adjustments
to reflect deemed earnings pursuant to Subsection 4.1(b).


 


1.2           Beneficiary. “Beneficiary” or “Beneficiaries”
means the beneficiary or beneficiaries last designated in writing by a Participant
in accordance with procedures established by the Committee from time to time to
receive the benefits specified hereunder in the event of the Participant’s
death. No Beneficiary designation shall become effective unless and until it is
filed with the Committee during the Participant’s lifetime.


 


1.3           Board of Directors. “Board of
Directors” or “Board” means, unless specified otherwise, the Board of Directors
of the Company and each Participating Company.


 


1.4           Code. “Code” means the
Internal Revenue Code of 1986, as amended. Reference to a section of the Code
includes such section and any comparable section or sections of any future
legislation that amends, supplements or supersedes such section.


 


1.5           Committee. “Committee” means
the Committee appointed by The Board of Directors of the Company to administer
the Plan in accordance with Article VIII.


 


1.6           Company. “Company” means
Seagate US LLC, and any successor thereto, or any entity in which Seagate US
LLC, has a significant equity or investment interest, and is designated as such
by the Committee in its sole and absolute discretion.


 


1.7           Compensation. “Compensation”
means (i) the base salary, commissions, bonuses and/or Directors fees that
the Participant earns for services rendered to the Company or a Participating
Company and (ii) the Deferred Compensation Distributions to which the
Participant becomes entitled during his or her period of employment with the
Company or any Participating Company.


 


2

















 


1.8           Deferred Compensation Distribution.
“Deferred Compensation Distribution” means a distribution which becomes payable
to a Participant from his or her account under the Seagate Technology HDD
Holdings Deferred Compensation Plan during such individual’s period of
employment with the Company or any Participating Company. Notwithstanding the
foregoing provisions of this Section 1.8 or any other provision of this
Plan, “Deferred Compensation Distribution” shall not include any distribution
from a Participant’s account under the Seagate Technology HDD Holdings Deferred
Compensation Plan to the extent such distribution consists of a security issued
by an entity in which the Participant is employed or by the parent of any such
entity, and the Participant shall not be permitted to defer any such security
under this Plan.


 


1.9           Director. “Director” means a
member of the Board.


 


1.10         Disability. “Disability” means
total and permanent disability within the meaning of the Company’s long-term
disability plan.


 


1.11         Distributable Amount. “Distributable
Amount” means the amount credited to a Participant’s Account that is deemed to
be invested under this Plan in cash or marketable securities. Such amount shall
be valued on the last day of the calendar quarter immediately preceding the
date on which the Participant is to receive a distribution under Article VII
or as soon as administratively practicable thereafter, as determined in the
sole and absolute discretion of the Committee. Any portion of a Participant’s
Account deemed to be invested under this Plan in property other than cash or
marketable securities shall become part of the Participant’s Distributable
Amount as soon as practicable following the date on which such amounts become
marketable securities or are converted to cash.


 


1.12         Distribution Event. “Distribution
Event” means, with respect to each Participant, (a) the Participant’s
termination of employment with the Company or a Participating Company or
termination of service on the Board of the Company or a Participating Company,
in the case of a Director (if the Director is also an Employee, then such
termination shall be the later of termination of employment or service on a
Board) for any reason, including Retirement, death or Disability, or (b) a
specific date, if specified by the Participant pursuant to Article VII. A
Participant’s Distribution Event election shall be made in writing at such
time, on such form and subject to such procedures as the Committee may, in its
sole and absolute discretion, specify from time to time. Notwithstanding the
foregoing, a Distribution Event will not be deemed to have occurred if a
Participant transfers employment from one Participating Company and becomes
employed by another Participating Company without any intervening employment.


 


1.13         Eligible Individual. “Eligible
Individual” means an Employee or Director who is a participant in the Seagate
Technology HDD Holdings Deferred Compensation Plan.


 


1.14         Employee. “Employee” means a
common law employee of the Company or a Participating Company
regularly-performing services in the United States.


 


1.15         Fund. “Fund” or “Funds” means
one or more of the investment funds selected by the Committee pursuant to Section 3.2.


 


3

















 


1.16                           Investment Return. “Investment Return” means, for each
fund, an amount equal to the pre-tax rate of gain or loss on the assets of such
Fund (net of applicable fund and investment charges) during each valuation
period, but not less frequently than monthly.


 


1.17                           Participant. “Participant” means any Eligible
Individual who has deferred the receipt of amounts he or she would otherwise
receive under the Seagate Technology HDD Holdings Deferred Compensation Plan in
accordance with Section 3.1.


 


1.18                           Participating Company. “Participating Company” means any of
the companies listed on Exhibit A hereto.


 


1.19                           Payment Commencement Date.


 


(a)                                  “Payment Commencement Date” means as soon
as administratively possible after either:


 


(i)            the first day of the month following
the end of the calendar quarter in which the Participant has a Distribution
Event, or


 


(ii)           the January 1st most closely
following the date on which the Participant has a Distribution Event.


 


A Participant’s Payment Commencement Date
under this Section 1.19(a) with respect to any amounts distributed to
such Participant under this Plan shall be the date referred to in either Section 1.19(a)(i) or
(ii) above, based on the Participant’s initial distribution election under
Section 7.1 with respect to such amounts, or as subsequently changed by
the Participant pursuant to an election that occurs at least one year prior to
the date on which the Participant has a Distribution Event.


 


If a Participant has not elected a Payment
Commencement Date under this Section 1.19(a), the Payment Commencement
Date shall be as soon as administratively possible after the first day of the
month following the end of the calendar quarter in which the Participant has a
Distribution Event.


 


1.20                           Plan. “Plan” means the Seagate Deferred Compensation
Sub-Plan, as set forth herein, now in effect, or as amended from time to time.


 


1.21                           Plan Year. “Plan Year” means (a) January 1, 2002
through December 31, 2002, and (b) each subsequent calendar year.


 


ARTICLE
II


 


PARTICIPATION


 


2.1                                 Participation. 
An Eligible Individual shall become a Participant in the Plan by
electing to defer all or a portion of amounts he or she would otherwise receive
from the Seagate Technology HDD Holdings Deferred Compensation Plan in
accordance with Section 3.1.


 


4

















 


ARTICLE
III


 


DEFERRAL
ELECTIONS


 


3.1                                 Deferral of Deferred Compensation
Distributions.


 


(a)                                  Election to Defer. Each Eligible Individual may elect to
defer all or a portion of the Deferred Compensation Distributions he or she
would otherwise receive from the Seagate Technology HDD Holdings Deferred
Compensation Plan by filing an election with the Committee that conforms to the
requirements of this Section, on a form and at the times approved by the
Committee.


 


(1)           General Rule. An Eligible
Individual may elect to defer any five percent (5%) multiple of Deferred
Compensation Distributions up to one hundred percent (100%), and may make
separate elections with respect to Deferred Compensation Distributions that
would otherwise be distributed from the Seagate Technology HDD Holdings
Deferred Compensation Plan in the form of (i) cash or marketable
securities, or (ii) other property that is not readily tradable on an
established securities market; provided, however, that no election shall be effective
to reduce the Deferred Compensation Distributions paid to an Eligible
Individual for a calendar year to an amount that would cause such Eligible
Individual’s Compensation to be less than the amount necessary to pay (i) applicable
employment taxes (e.g., FICA, hospital insurance) payable with respect to
amounts deferred hereunder, (ii) amounts necessary to satisfy any other benefit
plan withholding obligations, (iii) any resulting income taxes payable
with respect to Deferred Compensation Distributions that cannot be so deferred,
and (iv) any amounts necessary to satisfy any wage garnishment or similar
type obligations.


 


(b)                                 Effect of Election to Defer Deferred
Compensation Distributions. An election to defer Deferred Compensation
Distributions shall be effective as to any Deferred Compensation Distributions
which first become payable more than twelve (12) months after the date the
election form is filed with the Committee, or, in the case of any Deferred
Compensation Distributions which first become payable in 2002, for which an
election form was filed with the Committee on or before December 31, 2001.


 


(c)                                  Duration of Deferral Election. A Participant’s election to defer
Deferred Compensation Distributions made under Subsection 3.1(a) shall
remain in effect until he or she terminates such deferral election with respect
to Deferred Compensation Distributions, but only to the extent those Deferred
Compensation Distributions become payable more than twelve (12) months after
the date the Participant provides written notice of the termination of his or
her deferral election with the Committee.


 


3.2                                 Investment Elections. The Committee may, in its sole and
absolute discretion, provide each Participant with a list of investment funds
available for hypothetical investment, and the Participant may designate, in a
manner specified by the Committee, one or more Funds that his or her
Distributable Amount will be deemed to be invested in for purposes of
determining the amount of earnings to be credited to such Participant’s
Account. The Committee may, from time to time, in its sole and absolute
discretion, change the investment funds. The Investment Return of each such
commercially available fund shall be used to determine the 


 


5

















 


amount of earnings to be
credited to Participants’ Accounts under Subsection 4.1(b). In making the
designation pursuant to this Section, the Participant may specify that all or
any one percent (1%) multiple of his or her Distributable Amount be deemed to
be invested in one or more of the Funds offered by the Committee. Subject to
such limitations and conditions as the Committee may specify, a Participant may
change the designation made under this Section each business day, in such
manner and at such time or times as the Committee shall specify from time to
time. If a Participant fails to elect a Fund under this Section or if the
Committee does not provide such Participant with a list of Funds pursuant to
this Section, then the Participant shall be deemed to have elected a money
market or similar fund. The Company may, but need not, acquire investments
corresponding to those designated by the Participants hereunder, and it is not
under any obligation to maintain any investment it may make. Any such
investments, if made, shall be Company (or, if applicable, each Participating
Company) property in which no Participant shall have any interest.


 


ARTICLE
IV


 


ACCOUNTS


 


4.1                                 Participant Accounts. The Committee shall establish and
maintain an Account for each Participant under the Plan. Each Participant’s
Account may be further divided into separate subaccounts (“investment fund
subaccounts”), corresponding to investment Funds elected by the Participant
pursuant to Section 3.2 or as otherwise determined by the Committee to be
necessary or appropriate for proper Plan administration. A Participant’s
Account shall be credited as follows:


 


(a)           As soon as administratively
practicable after the day any Deferred Compensation Distribution would have
otherwise been paid to the Participant in the absence of his or her deferral
election under Article III, the Committee shall credit the investment fund
subaccounts of the Participant’s Account with an amount equal to the portion of
that Deferred Compensation Distribution which has been deferred under this Plan
pursuant to the Participant’s election; that is, the portion of the Participant’s
Distributable Amount that the Participant has elected to be deemed to be
invested in a certain type of investment Fund shall be credited to the
investment fund subaccount corresponding to that investment Fund. Any portion
of a Participant’s Account that is not a Distributable Amount shall be deemed
to be invested in the property, other than cash or marketable securities, that
comprised such Participant’s Deferred Compensation Distribution at the time of
its deferral under this Plan.


 


(b)           At such time or times as the
Committee may determine, but not less frequently than monthly, each investment
fund subaccount of a Participant’s Account shall be credited with earnings in
an amount equal to that determined by multiplying the balance credited to such
investment fund subaccount as of the last day of the preceding valuation period
by the Investment Return for the corresponding Fund selected by the Committee.


 


6

















 


ARTICLE V


 


VESTING


 


5.1                                 Vesting of Accounts.


 


A Participant’s Account
under this Plan shall be one hundred percent (100%) vested at all times.


 


ARTICLE
VI


 


GENERAL
DUTIES


 


6.1                                 Trustee Duties. The Trustee shall manage, invest and
reinvest the Trust Fund as provided in the Trust Agreement. The Trustee shall
collect the income on the Trust Fund, and make distributions therefrom, all as
provided in this Plan and in the Trust Agreement.


 


6.2                                 Remittance of Contributions. As soon as administratively practicable
after the close of each Plan quarter, the Company and each Participating
Company shall make a contribution constituting its respective share to the
Trust Fund to the extent that previous contributions to the Trust Fund for the
current Plan quarter are less than the total of the Deferred Compensation
Deferrals elected by each Participant plus Company Contributions, if any,
accrued as of the close of the current Plan quarter.


 


6.3                                 Department of Labor Determination. In the event that any Participants are
found to be ineligible, that is, not members of a select group of management or
highly compensated employees, according to a determination made by the
Department of Labor, the Committee may take whatever steps it deems necessary,
in its sole and absolute discretion, to equitably protect the interests of the
affected Participants.


 


ARTICLE
VII


 


DISTRIBUTIONS


 


7.1                                 Distribution Options. Each Participant may elect to receive
his or her deferrals (and earnings thereon) either at termination, Disability
or at a specified date while employed (“Scheduled In-Service Withdrawals”),
subject to the provisions of this Article VII. The election to receive
payment of Deferred Compensation Distributions (and earnings thereon) at
termination is irrevocable.


 


7.2                                 Distribution due to Termination of
Employment or Long-Term Disability.


 


(a)           Normal Form of Distribution.
Subject to Subsection 7.3(b) below, in the event that a Participant’s
employment terminates for any reason or the Participant has a Disability, then
the Participant’s Distributable Amount shall normally be paid to the
Participant (and after the Participant’s death to his or her Beneficiary or
Beneficiaries) in a cash lump sum payment payable on his or her Payment
Commencement Date. The portion of a Participant’s Account that is not a
Distributable Amount shall become a Distributable Amount as soon as


 


7
















 


practicable following the
date such amounts become marketable securities or are converted to cash, and
such Distributable Amount shall then be paid to the Participant (and after the
Participant’s death to his or her Beneficiary or Beneficiaries) in a cash lump
sum payment


 


(b)                                 Optional Forms of Distribution


 


(1)           A Participant may, in lieu of a lump
sum distribution specified in subsection 7.2(a) above, elect any of the
following optional forms of distribution (subject to Subsection 7.2(c) below):


 


	
   

  	
  Form(s) of
  Distribution

  	
   

  
	
   

  	
  12 quarterly installments

  	
   

  
	
   

  	
  20 quarterly installments

  	
   

  
	
   

  	
  40 quarterly installments

  	
   

  
	
   

  	
  60 quarterly installments

  	
   

  



 


If
a Participant is eligible for and elects installment payments, then the
substantially equal quarterly installments shall begin on the Participant’s
Payment Commencement Date.


 


(2)           Upon a Participant’s termination of
employment for any reason, all of his or her Plan Year’s distribution elections
will be cancelled in favor of the most recent termination distribution election,
provided that such election was made at least one (1) year prior to the
Participant’s termination; otherwise, the most recent distribution election
made by the Participant one (1) or more years prior to the date of his or
her termination shall govern.


 


(c)                                  Distribution Elections.


 


(1)           A Participant may make such
distribution election by completing a form approved by and filed with the
Committee by the established enrollment deadline (or such other period as the
Committee may establish from time to time) of the date the Eligible Individual
first becomes a Participant. A Participant may change his or her form of
distribution under this Section, provided that he or she files the change with
the Committee at least one (1) year prior to his or her Payment Commencement
Date.


 


(2)           Notwithstanding the foregoing, if the
Participant’s Distributable Amount is Fifty Thousand Dollars ($50,000) or less,
the Distributable Amount shall automatically be distributed in the form of a
cash lump sum on the Participant’s Payment Commencement Date.


 


(3)           If the Participant’s Distributable
Amount is paid in installments, then the Participant’s Account shall continue
to be credited with earnings pursuant to Subsection 4.1(c), and the installment
amount shall be adjusted annually to reflect gains and losses until all amounts
credited to his or her Account under the Plan have been distributed.


 


(4)           Amounts payable pursuant to this Section shall
be subject to the limitation on payout under Section 7.5.


 


8

















 


(d)                                 Death while Receiving Benefits. If the Participant dies prior to
receiving any or all of his or her Account, such Participant’s Distributable
Amount shall be paid to his or her Beneficiary or Beneficiaries in a cash lump
sum payment including all vested and unvested Company Contributions.


 


7.3                                 Scheduled and Unscheduled In-Service
Withdrawals and Accelerated Post Termination Distributions.


 


(a)                                  Scheduled In-Service Withdrawals. A Participant may, with respect to one
or more of his or her Deferred Compensation Distributions deferred under this
Plan, specify a withdrawal (a “Scheduled In-Service Withdrawal”) of all of his
or her Distributable Amount, including any amounts credited with respect to
such deferrals pursuant to Subsection 4.1(d), subject to the following
restrictions:


 


(1)           A Participant’s Scheduled In-Service
Withdrawal election must specify a Scheduled In-Service Withdrawal date that is
at least two (2) years after the date the Deferred Compensation
Distribution would have otherwise become payable to the Participant in the
absence of his or her deferral election under this Plan. A Participant may
amend or postpone to a later future year his or her Scheduled In-Service
Withdrawal election (including, without limitation, the form and/or timing of
the distribution); provided, however, such amendment or postponement (i) occurs
with at least one (1) year’s advance notice thereof, and (ii) the
newly-elected In-Service Withdrawal date is at least two (2) years from
the date of such amendment or postponement and at least two (2) years
beyond the date such distribution would have otherwise become payable to the
Participant in the absence of his or her deferral election under this Plan.


 


(2)           The election to take a Scheduled
In-Service Withdrawal shall be made by completing a form approved by and filed
with the Committee.


 


(3)           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 or in the manner and over the time periods described under Section 7.2(b) (as
elected by the Participant); provided, however, that if a Participant’s
Distributable Amount with respect to a total distribution for a Scheduled
In-Service Withdrawal is Twenty-Five Thousand Dollars ($25,000) or less,
payment will be in the form of a single lump sum. Lump sum distributions shall
be paid in January of the year specified on the election form. Annual
installment distributions shall commence in January of the year specified
on the election form and shall continue to be paid as soon as administratively
practicable following the end of the calendar year for the duration elected on
the election form.


 


(4)           A Participant’s Scheduled In-Service
Withdrawal election shall become void and of no effect upon termination of the
Participant’s employment with the Company or a Participating Company for any
reason before the Participant’s Scheduled In-Service Withdrawal date. In such
event, the distribution provisions of Section 7.2 shall apply. A
Participant shall not be deemed to have terminated employment with the Company
if the Participant transfers employment from one Participating Company and
becomes employed by another Participating Company without any intervening
employment.


 


9

















 


(b)                                 Unscheduled In-Service Withdrawals and
Accelerated Post-Termination Distributions. Participants may request to withdraw amounts from
their Distributable Amount prior to termination of employment with the Company
or a Participating Company (an “Unscheduled In-Service Withdrawal”) or, after
having terminated employment with the Company and all Participating Companies,
to accelerate the payment of Distributable Amounts that would otherwise be paid
in installment distributions in accordance with Section 7.2(b) (an “Accelerated
Post-Termination Distribution”). A Participant shall not be deemed to have
terminated employment with the Company or any Participating Company if the Participant
transfers employment from the Company or a Participating Company and becomes
employed by another Participating Company or the Company without any
intervening employment Upon receiving a request for an Unscheduled In-Service
Withdrawal request or an Accelerated Post-Termination Distribution, the
Committee shall authorize such withdrawal or distribution subject to the
following restrictions:


 


(1)           The election to take an Unscheduled
In-Service Withdrawal or an Accelerated Post-Termination Distribution shall be
made by completing a form approved by and filed with the Committee.


 


(2)           The amount payable to a Participant
in connection with an Unscheduled In-Service Withdrawal or an Accelerated
Post-Termination Distribution shall equal ninety percent (90%) of the requested
amount and, accordingly, shall not exceed ninety percent (90%) of the
Distributable Amount Any In-Service Withdrawal or Accelerated Post-Termination
Distribution shall be calculated as of the end of the calendar month
immediately preceding the month in which such withdrawal or distribution is
made. The amount of the In-Service Withdrawal or Accelerated Post-Termination
Distribution (and not the forfeited amount) shall be reduced by subject to
applicable Federal and state income tax withholding.


 


(3)           If a Participant receives an
Unscheduled In-Service Withdrawal or Accelerated Post-Termination Distribution:
the remaining portion of the requested amount, as applicable (i.e., ten percent
(10%) of such amount), shall be permanently forfeited, and the Company shall
have no obligation to the Participant or to his or her Beneficiary or
Beneficiaries with respect to such forfeited amount.


 


(4)           If a Participant receives an
Unscheduled In-Service Withdrawal, the Participant shall be ineligible to make
any new deferral elections in the Plan for the balance of the Plan Year in
which the Unscheduled In-Service Withdrawal occurs and all of the following
Plan Year.


 


(5)           An Unscheduled In-Service Withdrawal
or Accelerated Post-Termination Distribution of the Participant’s Distributable
Amount pursuant to this Section shall be made pro rata from his or her
assumed investments according to the balances in such investments. Subject to
the foregoing and subject to the Committee’s approval, 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 as soon as administratively practicable after
such withdrawal or distribution is approved.


 


10

















 


7.4                                 Unforeseeable Emergency.


 


(a)                                  Triggering an Unforeseeable Emergency. The Committee may, in its sole and
absolute discretion, accelerate the date of distribution of a Participant’s
Distributable Amount due to an unforeseeable emergency at any time without
penalty. An unforeseeable emergency withdrawal may be granted only for an
unforeseeable, severe financial condition resulting from (1) a sudden and
unexpected illness or accident of the Participant or his or her dependent (as
defined in Code Section 152(a)); (2) loss of the Participant’s
property due to casualty; or (3) other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant, but which may not be relieved through other available resources
of the Participant, as determined by the Committee, in its sole and absolute
discretion. If a Participant receives a distribution pursuant to this Section,
the Participant shall be ineligible to participate in the Plan for the balance
of the Plan Year in which the distribution occurs and all of the following Plan
Year.


 


(b)                                 Distribution Attributable to an
Unforeseeable Emergency. Unless the Committee, in its sole and absolute discretion, determines
otherwise, distribution pursuant to this Section of less than the
Participant’s entire interest in the Plan shall be made pro rata from his or
her assumed investments according to the balances in such investments. 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
as soon as administratively practicable after the Committee approves the
Participant’s request.


 


(c)                                  Section 162(m) Limitation. If the Committee determines in good
faith that there is a reasonable likelihood that all or any portion of any
payment of benefits under this Article VII to a Participant would not be
deductible for Federal income tax purposes by the Company or a Participating
Company, as applicable, because of a limitation on the total amount of the
Participant’s deductible compensation from the Company or a Participating
Company, as applicable, including any other such compensation already paid to
the Participant earlier in the same fiscal year of the Company or a
Participating Company, as applicable, the following shall apply:


 


(1)           Payment of the non-deductible amount
shall be deferred until the first day of the following fiscal year of the
Company or a Participating Company, as applicable;


 


(2)           If the amount deferred under Subsection
7.5(a) above would exceed the limitation of the total amount of the
Participant’s deductible compensation from the Company or a Participating
Company, as applicable, for the following fiscal year, the excess shall be
deferred to the first day of the succeeding fiscal year in which the
deductibility of compensation paid or payable to the Participant will not be so
limited, subject to Subsection 7.5(c) below;


 


(3)           In no event shall any payment be
deferred under this Section more than three (3) years from the date
scheduled for payment under this Article VII; and


 


(4)           Adjustment for earning shall continue
to be applied under Subsection 4.1(d) during the period of deferral under
this Section.


 


11

















 


7.5                                 Inability to Locate Participant. 
In the event that the Committee is unable to locate a Participant or
Beneficiary within two (2) years following the Participant’s Distribution
Event, the amount allocated to the Participant’s Deferral Account shall be
forfeited. If, after such forfeiture, the Participant or Beneficiary later
claims such benefit, such benefit (calculated immediately prior to the
forfeiture) shall be reinstated without interest or earnings.


 


ARTICLE
VIII


 


ADMINISTRATION


 


8.1                                 Powers and Duties of the Committee.


 


(a)                                  The Seagate Benefits Administrative
Committee (the “Committee”) shall administer the Plan in accordance with the
Seagate Benefits Administrative Committee Charter, and as such Charter many be
amended from time to time. In addition, the Committee, on behalf of the
Participants and their Beneficiaries, shall enforce the Plan in accordance with
its terms, shall be charged with the general administration of the Plan and
shall have all powers necessary to accomplish its purposes, including, but not
by way of limitation, the following:


 


(1)           To select the funds to be in
accordance with Section 3.2 hereof;


 


(2)           To construe and interpret the terms
and provisions of this Plan;


 


(3)           To amend, modify, suspend or
terminate the Plan in accordance with Section 9.4;


 


(4)           To compute and certify the amount and
kind of benefits payable to Participants and their Beneficiaries and to direct
the Trustee as to the distribution of Plan assets;


 


(5)           To maintain all records that may be
necessary for the administration of the Plan;


 


(6)           To provide for the disclosure of all
information and the filing or provision of all reports and statements to
Participants, Beneficiaries or governmental agencies as shall be required by
law;


 


(7)           To make and publish such rules for
the regulation of the Plan and procedures for the administration of the Plan as
are not inconsistent with the terms hereof;


 


(8)           To appoint a plan administrator or
any other agent, and to delegate to them such powers and duties in connection
with the administration of the Plan as the Committee may from time to time
prescribe; and


 


(9)           To amend, modify or suspend the
Trust, subject to the terms and conditions of the Trust Agreement.


 


12

















 


8.2                                 Additional Powers of the Committee.


 


In
addition to the powers enumerated in Section 8.1, the Committee shall have
the following powers:


 


(a)           To establish and revise, from time to
time, the Charter governing the operation of the Committee, subject to the same
restrictions under Section 9.4 applicable to the Committee’s authority to
amend the Plan;


 


(b)           To elect successor members to the
Committee, when any other individual ceases to be a member of the Committee;
and


 


(c)           To perform all other acts deemed by
the members of the Committee to be necessary or appropriate for the execution
of their duties as members of the Committee.


 


8.3                                 Construction and Interpretation. The Committee shall have full
discretion to construe and interpret the terms and provisions of this Plan,
which interpretation or construction shall be final and binding on all parties,
including but not limited to the Company, any Participating Company, and any
Participant or Beneficiary.


 


8.4                                 Information. To enable the Committee to perform its
functions, the Company and each Participating Company, as applicable, shall
supply full and timely information to the Committee on all matters relating to
the Compensation of all Participants, their death or other cause of
termination, and such other pertinent facts as the Committee may reasonably
require.


 


8.5                                 Compensation, Expenses and Indemnity.


 


(a)           The members of the Committee shall
serve without compensation for their services hereunder.


 


(b)           The Committee is authorized at the
expense of the Company and each Participating Company, on a pro rata basis
based on the total number of Participants (if elected by the Company) to employ
such legal counsel as it may deem advisable to assist in the performance of its
duties hereunder. Expenses and fees in connection with the administration of
the Plan shall be paid by the Company and each Participating Company.


 


(c)           To the extent permitted by applicable
state law, the Company and each Participating Company, on a pro rata basis,
based on the total number of Participants shall indemnify and save harmless the
Committee and each member thereof, the Boards and any delegate of the Committee
who is an employee of the Company and each Participating Company based on total
number of Participants against any and all expenses, liabilities and claims, including
legal fees to defend against such liabilities and claims arising out of their
discharge in good faith of responsibilities under or incident to the Plan,
other than expenses and liabilities arising out of willful misconduct or gross
negligence. This indemnity shall not preclude such further indemnities as may
be available under insurance purchased by the Company or a Participating
Company or provided by the Company or a Participating Company under any bylaw,
agreement or otherwise, as such indemnities are permitted under state law.


 


13

















 


8.6           Quarterly Statements. Under
procedures established by the Committee, a Participant shall receive a
statement with respect to such Participant’s Account at least quarterly.


 


ARTICLE
IX


 


CLAIMS
PROCEDURE


 


9.1           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.


 


9.2           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.


 


9.3           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.


 


9.4           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 


 


14

















 


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.”


 


9.5           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.


 


9.6           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.


 


ARTICLE X


 


MISCELLANEOUS


 


10.1         Unsecured General Creditor.
Participants and their Beneficiaries, heirs, successors, and assigns shall have
no legal or equitable rights, claims, or interests in any specific property or
assets of the Company or a Participating Company. No assets of the Company or a
Participating Company shall be held in any way as collateral security for the
fulfilling of the obligations of the Company or a Participating Company under
this Plan. Any and all of the assets of the Company and the Participating
Companies shall be, and remain, the general unpledged, unrestricted assets of
the Company and the Participating Companies. The obligation of the Company and
each Participating Company under the Plan shall be merely that of an unfunded
and unsecured promise to pay money in the future, and the rights of the
Participants and Beneficiaries shall be no greater than those of unsecured
general creditors.


 


10.2         Restriction Against Assignment.
The Company and each Participating. Company shall pay all amounts payable
hereunder only to the person or persons designated by the Plan and not to any
other person or corporation. No part of a Participant’s Account shall be liable
for the debts, contracts, or engagements of any Participant, his or her
Beneficiary, or successors in interest, nor shall a Participant’s Account be
subject to execution by levy, attachment, or garnishment or by any other legal
or equitable proceeding, nor shall any such person have any right to alienate,
anticipate, commute, pledge, encumber, or assign any benefits or payments
hereunder in any manner whatsoever. If any Participant, Beneficiary or
successor in interest is adjudicated bankrupt or purports to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge any distribution
or payment from the Plan, voluntarily or involuntarily, the Committee, in its
sole and absolute discretion, may cancel such distribution or payment (or any
part thereof) to 


 


15

















 


or for the benefit of
such Participant, Beneficiary or successor in interest in such manner as the
Committee shall direct.


 


10.3         Withholding. There shall be
deducted from each payment made under the Plan, all taxes that are required to
be withheld by the Company or each Participating Company, as applicable, in
respect to such payment. The Company or each Participating Company, as
applicable, shall have the right to reduce any payment by the amount of cash
sufficient to provide the amount of said taxes.


 


10.4         Amendment, Modification, Suspension
or Termination. Notwithstanding any other provision of this Plan to the
contrary, Seagate US LLC shall be the sponsor of the Plan, but the Board of
Directors of New SAC, a Cayman Islands Limited Company (“New SAC”) shall be the
entity that has the power to amend and terminate the Plan and appoint members
of the Committee. Furthermore, the Board of Directors of New SAC hereby
delegates to the Committee the authority to adopt and execute any amendment to
the Plan that the Board of New SAC could otherwise adopt under the provisions
of this Section 9.4; provided that any such amendment (1) does not
abridge the power of the Board of Directors of New SAC to amend the Plan or the
Charter of the Committee (including any amendment of the Plan or Charter that
such Board intends to supersede any amendment of the Committee) or to appoint
or remove members of the Committee, and (2) does not significantly
increase the benefits payable to members of the Committee, except in their
capacity as members of a broad class of employees for whom benefits are being
increased. Any such amendment shall be stated in an instrument in writing,
executed in the same manner as the Plan.


 


The Committee may amend,
modify, suspend or terminate the Plan in whole or in part, except that no
amendment, modification, suspension or termination shall have any retroactive
effect to reduce any amounts allocated to a Participant’s Account, provided
that a termination or suspension of the Plan or any Plan amendment or
modification that will significantly increase costs to the Company shall be
approved by the Board. In the event that this Plan is terminated, the timing of
the disposition of the amounts credited to a Participant’s Account shall occur
in accordance with Section 7.2, subject to earlier distribution at the
discretion of the Committee.


 


10.5         Governing Law. This Plan shall
be construed, governed and administered in accordance with the internal substantive
laws of the State of California (other than the choice of law principles)


 


10.6         Receipt or Release. Any payment
to a Participant or the Participant’s Beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims against the Committee, the Company and each Participating Company.
The Committee may require such Participant or Beneficiary, as a condition
precedent to such payment, to execute a receipt and release to such effect.


 


10.7         Payments on Behalf of Persons under
Incapacity. In the event that any amount becomes payable under the Plan to
a person who, in the sole judgment of the Committee, is considered by reason of
physical or mental condition to be unable to give a valid receipt therefore,
the Committee may direct that such payment be made to any person found by the
Committee, in its sole judgment, to have assumed the care of such person. Any
payment made 


 


16

















 


pursuant to such determination
shall constitute a full release and discharge of the Committee, the Company and
each Participating Company.


 


10.8         No Employment Rights.
Participation in this Plan shall not confer upon any person any right to be
employed by the Company or any Participating Company or any other right not
expressly provided hereunder.


 


10.9         Headings, etc., Not Part of
Agreement. Headings and subheadings in this Plan are inserted for
convenience of reference only and are not to be considered in the construction
of the provisions hereof.


 


10.10       Liability Between Company and
Participating Companies. The Company and each Participating Company shall
each be solely liable for liabilities relating to, resulting from and arising
out of its own Employees’ or Directors’ participation in the Plan.


 


IN WITNESS WHEREOF, the Seagate
Benefits Administrative Committee, by its duly authorized officer, executed
this restated Plan on December 21, 2009.


 


 


	
   

  	
  SEAGATE BENEFITS ADMINISTRATIVE COMMITTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOY NYBERG

  
	
   

  	
  Title: Vice President Compensation and Benefits

  



 


17

















 


EXHIBIT A


 


PARTICIPATING COMPANIES


 


Seagate RSS LLC


 


Seagate Technology (US) Holdings, Inc.


 


Seagate Removable Storage Solutions (US) Holdings, Inc.


 


XIOTech Corporation


 


Seagate Technology LLC


 


Seagate Removable Storage Solutions LLC


 


Seagate Technology Investment Holdings LLC


 


18