Exhibit 10.9
SEAGATE TECHNOLOGY HOLDINGS
2001 SHARE OPTION PLAN
(as amended and restated effective as of January 31, 2002)
1. Purpose of the Plan
The purpose of the Plan is to aid the Company and its Affiliates in
recruiting and retaining key employees, directors or consultants of outstanding
ability and to motivate such employees, directors or consultants to exert their
best efforts on behalf of the Company and its Affiliates by providing incentives
through the granting of Awards. The Company expects that it will benefit from
the added interest which such key employees, directors or consultants will have
in the welfare of the Company as a result of their proprietary interest in the
Company's success.
2. Definitions
The following capitalized terms used in the Plan have the respective
meanings set forth in this Section:
(a) 10% Shareholder: the owner of stock (as determined under Code
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Section 424(d)) possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Company (or any parent of Subsidiary).
(b) Act: The Securities Exchange Act of 1934, as amended, or any
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successor thereto.
(c) Affiliate: With respect to the Company, any entity directly or
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indirectly controlling, controlled by, or under common control
with, the Company or any other entity designated by the Board in
which the Company or an Affiliate has an interest.
(d) Award Agreement: A written agreement signed by an authorized
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officer of the Company evidencing the grant of an Option.
(e) Beneficial Owner: A "beneficial owner", as such term is defined
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in Rule 13d-3 under the Act (or any successor rule thereto).
(f) Board: The Board of Directors of the Company.
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(g) Change in Control: (i) the sale or disposition, in one or a
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series of related transactions, of all, or substantially all, of
the assets of the Company to any Person or "group" (as such terms
are defined in Sections 13(d)(3) or 14(d)(2) of the Act) other
than the Investors or their Affiliates or (ii) any person or
group, other than the Investors or their Affiliates, is or
becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the total voting power of the voting securities of
the Company, including by way of merger, consolidation, tender or
exchange offer or otherwise and the representatives of the
Investors or their Affiliates (individually or in the aggregate)
cease to comprise a majority of the Board.
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(h) Closing Date: November 22, 2001, the date on which Seagate
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Technology, Inc., Seagate Software Holdings, Inc. and Suez
Acquisition Company Limited completed the stock purchase
agreement and Seagate Technology, Inc. and VERITAS Software
Corporation completed the agreement and plan of merger and
reorganization.
(i) Code: The Internal Revenue Code of 1986, as amended, or any
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successor thereto.
(j) Committee: The Board, or any committee of the Board designated by
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the Board to administer this Plan.
(k) Company: Seagate Technology Holdings, a limited company
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incorporated in the Cayman Islands.
(l) Effective Date: The date the Board approves the Plan.
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(m) Employment: The term "employment" as used herein shall be deemed
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to refer to (i) a Participant's employment if the Participant is
an employee of the Company or any of its Affiliates and (ii) to a
Participant's service as a nonemployee director or consultant if
the Participant is a nonemployee director or consultant to the
Company or its Affiliates.
(n) Fair Market Value: On a given date, (i) if there should be a
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public market for the Shares on such date, the arithmetic mean of
the high and low selling prices of the Shares as reported on such
date on the Composite Tape of the principal national securities
exchange on which such Shares are listed or admitted to trading,
or, if no Composite Tape exists for such national securities
exchange on such date, then on the principal national securities
exchange on which such Shares are listed or admitted to trading,
or, if the Shares are not listed or admitted on a national
securities exchange, the arithmetic mean of the per Share closing
bid price and per Share closing asked price on such date as
quoted on the National Association of Securities Dealers
Automated Quotation System (or such market in which such prices
are regularly quoted), or if no sale of Shares shall have been
reported on such Composite Tape or such national securities
exchange on such date or quoted on the National Association of
Securities Dealer Automated Quotation System on such date, then
the immediately preceding date on which sales of the Shares have
been so reported or quoted shall be used, and (ii) if there
should not be a public market for the Shares on such date, the
Fair Market Value shall be the fair market value per share
established by the Board in good faith.
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(o) Investors: Silver Lake Partners, L.P., SAC Investments, L.P. and
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the other investors that invested in New SAC as of the Closing
Date (other than pursuant to the conversion of equity-based
awards in Seagate Technology, Inc. or the purchase of New SAC
securities pursuant to Rollover Agreements with New SAC dated
November 13, 2000).
(p) ISO: An Option that is also an incentive stock option granted
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pursuant to Section 6(d) of the Plan.
(q) New SAC: New SAC, a limited company incorporated in the Cayman
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Islands.
(r) Option: A share option granted pursuant to Section 6 of the Plan.
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(s) Option Price: The purchase price per Share of an Option, as
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determined pursuant to Section 6(a) of the Plan.
(t) Participant: An employee, director or consultant of the Company
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or its Affiliates who is selected by the Committee to participate
in the Plan.
(u) Person: A "person", as such term is used for purposes of Section
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13(d) or 14(d) of the Act.
(v) Plan: The Seagate Technology Holdings 2001 Share Option Plan.
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(w) Shares: Shares of common shares of the Company.
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(x) Subsidiary: A subsidiary corporation, as defined in Section
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424(f) of the Code (or any successor section thereto).
3. Shares Subject to the Plan
The total number of Shares which may be issued under the Plan is
100,000,000. The Shares may consist, in whole or in part, of unissued Shares or
treasury Shares. The issuance of Shares or the payment of cash upon the exercise
of an Option shall reduce the total number of Shares available under the Plan,
as applicable. Shares which are subject to Options which terminate or lapse
without consideration may be granted again under the Plan. In addition, unvested
Shares repurchased by the Company, pursuant to the repurchase right under
Section 6(b) of the Plan, upon the Participant's termination of Employment shall
be added back to the number of Shares available for issuance under the Plan.
4. Administration
The Plan shall be administered by the Committee, which may delegate
its duties and powers in whole or in part to any subcommittee thereof consisting
solely of at least two
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individuals who, during any period when the Company and this Plan are subject to
the provisions of Section 162(m) of the Code and Section 16 of the Act, are
intended to qualify as "nonemployee directors" within the meaning of Rule 16b-3
under the Act (or any successor rule thereto) and "outside directors" within the
meaning of Section 162(m) of the Code (or any successor section thereto).
Options may, in the discretion of the Committee, be granted under the Plan in
substitution for outstanding options previously granted by the Company or its
affiliates or a company acquired by the Company or with which the Company
combines. The number of Shares underlying such substitute options shall be
counted against the aggregate number of Shares available for Options under the
Plan. The Committee is authorized to interpret the Plan, to establish, amend and
rescind any rules and regulations relating to the Plan, and to make any other
determinations that it deems necessary or desirable for the administration of
the Plan. The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan in the manner and to the extent the
Committee deems necessary or desirable. Any decision of the Committee in the
interpretation and administration of the Plan, as described herein, shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned (including, but not limited to, Participants
and their beneficiaries or successors). The Committee shall have the full power
and authority to establish the terms and conditions of any Option consistent
with the provisions of the Plan and to waive any such terms and conditions at
any time (including, without limitation, accelerating or waiving any vesting
conditions). The Committee shall require payment of any amount it may determine
to be necessary to withhold for federal, state, local or other taxes as a result
of the exercise of an Option. If the Committee specifically provides in a
Participant's Award Agreement, the Participant may elect to pay a portion or all
of such withholding taxes, but in no event greater than the Company's minimum
statutory rate (based on both the federal and state rates) by (a) delivery in
Shares or (b) having Shares withheld by the Company from any Shares that would
have otherwise been received by the Participant.
5. Limitations
No Option may be granted under the Plan after the tenth anniversary of
the Effective Date, but Options theretofore granted may extend beyond that date.
6. Terms and Conditions of Options
Options granted under the Plan shall be, as determined by the
Committee, non-qualified or incentive stock options for federal income tax
purposes, as evidenced by the related Award Agreements, and shall be subject to
the foregoing and the following terms and conditions and to such other terms and
conditions, not inconsistent therewith, as the Committee shall determine:
(a) Option Price. The Option Price per Share shall be determined by
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the Committee at the time of grant and shall be set forth in an
Award Agreement; provided, however, that the exercise price per
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share shall not be less than eighty-five percent (85%) of the
Fair Market Value per Share on the date of grant; provided,
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further, that if the Participant is a 10%
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Shareholder, then the Option Price per share shall not be less
than one hundred ten percent (110%) of the Fair Market Value per
Share on the date of grant.
(b) Exercisability. Options granted under the Plan shall be
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exercisable at such time and upon such terms and conditions as
may be determined by the Committee. The Committee shall have the
discretion to grant Options which are immediately exercisable for
unvested Shares, and any unvested Shares purchased under those
Options shall be subject to repurchase by the Company should the
Participant cease employment prior to vesting in those Shares. In
the discretion of the Committee, the repurchase price shall equal
either (i) the Option Price paid per Share or (ii) the lower of
the Fair Market Value per Share or the Option Price paid per
Share. The terms upon which such repurchase right shall be
exercisable (including the period and procedure for exercise and
the appropriate vesting schedule for the purchased Shares) shall
be established by the Committee and set forth in the document
evidencing such repurchase right. In no event, however, shall the
Committee impose a vesting schedule that is more restrictive than
twenty percent (20%) per year, with the initial vesting to occur
not later than one (1) year after the date of grant; provided,
further, that such limitation shall not be applicable to any
Participants who are officers of the Company or an Affiliate,
nonemployee directors or consultants. Notwithstanding the
foregoing, in no event shall an Option be exercisable more than
ten years after the date it is granted.
(c) Exercise of Options. Except as otherwise provided in the Plan or
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in an Award Agreement, an Option may be exercised for all, or
from time to time any part, of the Shares for which it is then
exercisable. For purposes of Section 6 of the Plan, the exercise
date of an Option shall be the later of the date a notice of
exercise is received by the Company and, if applicable, the date
payment is received by the Company pursuant to clauses (i), (ii)
or (iii) in the following sentence. The purchase price for the
Shares as to which an Option is exercised shall be paid to the
Company in full at the time of exercise at the election of the
Participant (i) in cash or its equivalent (e.g., by check) or
(ii) if there should be a public market for the Shares at such
time, (A) in Shares having a Fair Market Value equal to the
aggregate Option Price for the Shares being purchased and
satisfying such other requirements as may be imposed by the
Committee; provided, that such Shares have been held by the
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Participant for no less than six months (or such other period as
established from time to time by the Committee or generally
accepted accounting principles), (B) partly in cash and partly in
such Shares or (C) subject to such rules as may be established by
the Committee, through the delivery of irrevocable instruments to
a broker to sell all or a portion of such Shares and deliver
promptly to the Company an amount equal to the aggregate Option
Price for the Shares being
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purchased. No Participant shall have any rights to dividends or
other rights of a shareholder with respect to Shares subject to
an Option until the Participant has given written notice of
exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the
Committee pursuant to the Plan.
(d) ISOs. The Committee may grant Options under the Plan that are
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intended to be ISOs. Such ISOs shall comply with the requirements
of Section 422 of the Code (or any successor section thereto). No
ISO may be granted to any Participant who at the time of such
grant, owns more than ten percent of the total combined voting
power of all classes of stock of the Company or of any Subsidiary
within the meaning of Section 422(b)(6) of the Code (or any
successor section thereto), unless (i) the Option Price for such
ISO is at least 110% of the Fair Market Value of a Share on the
date the ISO is granted and (ii) the date on which such ISO
terminates is a date not later than the day preceding the fifth
anniversary of the date on which the ISO is granted. Any
Participant who disposes of Shares acquired upon the exercise of
an ISO either (i) within two years after the date of grant of
such ISO or (ii) within one year after the transfer of such
Shares to the Participant, shall notify the Company of such
disposition and of the amount realized upon such disposition.
(e) Attestation. Wherever in this Plan or any Award Agreement a
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Participant is permitted to pay the exercise price of an Option
or taxes relating to the exercise of an Option by delivering
Shares, the Participant may, subject to procedures satisfactory
to the Committee, satisfy such delivery requirement by presenting
proof of beneficial ownership of such Shares, in which case the
Company shall treat the Option as exercised without further
payment and shall withhold such number of Shares from the Shares
acquired by the exercise of the Option.
7. Adjustments Upon Certain Events
Notwithstanding any other provisions in the Plan to the contrary, the
following provisions shall apply to all Options granted under the Plan:
(a) Generally. In the event of any change in the outstanding Shares
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after the Effective Date by reason of any Share dividend or
split, reorganization, recapitalization, merger, consolidation,
spin-off, combination, or other transaction or exchange of Shares
or other exchange or similar or other transaction affecting the
value of the Shares including, without limitation, the repayment
of Company indebtedness by an Affiliate or shareholder, or any
distribution to shareholders of Shares or the shares of any
Subsidiary of the Company in a spin-off or spinout transaction,
the distribution of proceeds from the sale or other disposition
of a Subsidiary of the
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Company to the Company's shareholders or any transaction similar
to the foregoing other than regular cash dividends, the Committee
shall, without liability to any person, make such substitution or
adjustment it deems to be equitable, as to (i) the number or kind
of Shares or other securities or other property issued or
reserved for issuance pursuant to the Plan or pursuant to
outstanding Options, (ii) the Option Price and/or (iii) any other
affected terms of such Options; provided the aggregate Option
Price shall not be increased. In the event of the liquidation or
dissolution of the Company, all Options which have not been
previously exercised shall terminate.
(b) Change in Control. Except as otherwise provided in an Award
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Agreement, in the event of a Change in Control, the Committee in
its sole discretion and without liability to any person may take
such actions, if any, as it deems necessary or desirable with
respect to any Option (including, without limitation, (i) the
acceleration of the vesting of an Option, (ii) the payment of a
cash amount in exchange for the cancellation of an Option equal
to the product of (x) the excess, if any, of the Fair Market
Value per Share at such time over the Option Price times (y) the
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number of Shares then subject to such Option (a "Cash-Out")
and/or (iii) the requiring of the assumption of the outstanding
Options by the successor entity or the issuance of substitute
Options or other equity based awards that will substantially
preserve the value, rights and benefits of any outstanding
Options in effect prior to the consummation of the Change in
Control as determined by the Committee; provided, however, that
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if the Option is not assumed, substituted, Cashed-Out or
otherwise continued following the Change in Control, the Option
shall become immediately vested and exercisable immediately prior
to the Change in Control and shall terminate if not exercised
upon or prior to the Change in Control.
8. No Right to Employment or Awards
The granting of an Option under the Plan shall impose no obligation on
the Company or any Affiliate to continue the employment of a Participant and
shall not lessen or affect the Company's or its Affiliate's right to terminate
the employment of such Participant. No Participant or other Person shall have
any claim to be granted any Option, and there is no obligation for uniformity of
treatment of Participants, or holders or beneficiaries of Options. The terms and
conditions of Options and the Committee's determinations and interpretations
with respect thereto need not be the same with respect to each Participant
(whether or not such Participants are similarly situated).
9. Successors and Assigns
The Plan shall be binding on all successors and assigns of the Company
and a Participant, including without limitation, the estate of such Participant
and the executor,
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administrator or trustee of such estate, or any receiver or trustee in
bankruptcy or representative of the Participant's creditors.
10. Nontransferability of Options
Unless otherwise determined by the Committee, an Option shall not be
transferable or assignable by the Participant otherwise than by will or by the
laws of descent and distribution. An Option exercisable after the death of a
Participant may be exercised by the legatees, personal representatives or
distributees of the Participant. Notwithstanding the foregoing, the Participant
may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who in the event of the death of the
Participant shall thereafter be entitled to exercise the Option.
11. Loans
The Committee may, in its sole discretion, permit a Participant to pay
the Option Price for any Shares purchased under the Plan by delivering a
full-recourse promissory note payable in one or more installments and secured by
the purchased Shares. The promissory note shall bear interest at the market rate
on the date of exercise. In no event, however, may the maximum credit available
to the Participant exceed the sum of (i) the aggregate Option Price payable for
the purchased Shares (less the par value of those Shares) plus (ii) any Federal,
state and local income and employment tax liability or other tax liability
incurred by the Participant in connection with the Share purchase.
12. Amendments or Termination
The Board may amend, alter or discontinue the Plan, but no amendment,
alteration or discontinuation shall be made which, (a) without the approval of
the shareholders of the Company, would (except as is provided in Section 7 of
the Plan), increase the total number of Shares reserved for the purposes of the
Plan or change the maximum number of Shares for which Options may be granted to
any Participant or (b) without the consent of a Participant, would diminish any
of the rights of the Participant under any Option theretofore granted to such
Participant under the Plan; provided, however, that the Committee may amend the
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Plan in such manner as it deems necessary to permit the granting of Options
meeting the requirements of the Code or other applicable laws.
13. Choice of Law
The Plan shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of laws.
14. Effectiveness of the Plan
The Plan shall be effective as of the Effective Date.
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