EXHIBIT 10.3
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WESTERN(R) WESTERN DIGITAL CORPORATION
DIGITAL ID: 95-2657125
P.O. Box 19665
Lake Forest, CA 92630-7741
(949) 672-7000 x 27985/27986
NOTICE OF GRANT OF LONG-TERM CASH AWARD
AND LONG-TERM CASH AWARD AGREEMENT - EXECUTIVES
((FN))((MN))((LN)) AWARD NUMBER: ((NBR))
((AD1)) PLAN: 2004 Performance Incentive Plan
((AD2)) ID: ((ID))
((CTY)), ((ST)) ((Z))
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Congratulations! Effective _________, 20__, you have been granted a Long-Term
Cash Award (a "CASH AWARD") of Western Digital Corporation. This Cash Award was
granted under the 2004 Performance Incentive Plan (the "PLAN").
TARGET CASH AWARD: $___________.
MEASUREMENT PERIOD COVERED BY GRANT: ______________ to ______________
("Measurement Period").
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Your Cash Award is subject to the terms and conditions of this Notice, the
attached Standard Terms and Conditions for Long-Term Cash Award - Executives
(the "STANDARD TERMS") and the Plan. By accepting the award, you are agreeing to
the terms and provisions set forth in those documents. You should read the Plan
and the Standard Terms. The Standard Terms and the Plan are each incorporated
into (made a part of) this Notice by this reference. You do not have to accept
your award. If you do not agree to the terms of your award, you should promptly
return this Notice to the Western Digital Corporation Stock Plans Administrator.
A copy of the Plan and the Standard Terms have been provided to you. If you need
another copy of these documents, or if you would like to confirm that you have
the most recent version, please contact the Law Department.
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EXHIBIT 10.3
WESTERN(R)
DIGITAL
Western Digital Corporation 20511 Lake Forest Drive
Lake Forest, California 92630 Telephone 949 672-7000
STANDARD TERMS AND CONDITIONS FOR
LONG-TERM CASH AWARD - EXECUTIVES
1. LONG-TERM CASH AWARD SUBJECT TO 2004 PERFORMANCE INCENTIVE PLAN
The Long-Term Cash Award (the "CASH AWARD") referred to in the attached
Notice of Grant of Long-Term Cash Award and Long-Term Cash Award Agreement -
Executives (the "NOTICE") is awarded under the Western Digital Corporation (the
"CORPORATION") Amended and Restated 2004 Performance Incentive Plan (the
"PLAN"). The Cash Award is subject to the terms and provisions of the Notice,
these Standard Terms and Conditions for Long-Term Cash Award - Executives (these
"STANDARD TERMS"), and the Plan. To the extent any information in the Notice or
other information provided by the Corporation conflicts with the Plan and/or
these Standard Terms, then the Plan or these Standard Terms, as applicable,
shall control. To the extent any terms and provisions in these Standard Terms
conflict with the terms and provisions of the Plan, the Plan shall control. The
Notice and these Standard Terms, together, constitute the "AGREEMENT" with
respect to the Cash Award pursuant to Section 5.3 of the Plan. The holder of the
Cash Award is referred to herein as the "PARTICIPANT." Capitalized terms not
defined herein have the meanings set forth in the Plan.
2. PERFORMANCE GOALS
The Compensation Committee of the Board of Directors of the Corporation
(the "COMMITTEE") shall set one or more objective performance goals for
Participant for the Measurement Period, in accordance with Section 5.2 of the
Plan ("PERFORMANCE GOALS"). Upon determination by the Committee of the
Performance Goals, the Performance Goals for the Measurement Period shall be
attached as Exhibit A hereto.
3. DETERMINATION AND PAYMENT OF CASH AWARD PAYMENT AMOUNT
Within a reasonable period of time following the end of the Measurement
Period, the Committee shall determine, in accordance with the Performance Goals
and related criteria and methodology established by the Committee described on
Exhibit A hereto, the extent to which the Performance Goals have been achieved
and authorize the cash payment of an award, if any, to Participant (the "CASH
AWARD PAYMENT AMOUNT"). The Cash Award Payment Amount shall equal the dollar
amount of the Cash Award set forth on the Notice of Grant of Cash Performance
Award ("TARGET CASH AWARD") multiplied by a percentage that shall be determined
by the Committee in accordance with the Performance Goals and related criteria
and methodology described on Exhibit A hereto (the "CASH AWARD PERFORMANCE
PERCENTAGE"), subject to adjustment as described in this Agreement. Subject to
Sections 5 and 6 below, payment of the Cash Award Payment Amount shall be made
to Participant or, in the event of Participant's death, to Participant's legal
representative, as soon as practicable after the certification of awards by the
Committee (but no later than seventy-five days following completion of the
Measurement Period), net of amounts withheld in satisfaction of the requirements
of Section 8(b) below. THE CASH AWARD PERFORMANCE PERCENTAGE AND THE CASH AWARD
PAYMENT AMOUNT ARE SUBJECT TO ADJUSTMENT (WHICH MAY REDUCTION) AS PROVIDED IN
THIS AGREEMENT.
4. TERMINATION AT PAYMENT OF CASH AWARD
Unless terminated earlier under Section 5 below, a Participant's rights
under this Agreement with respect to the Cash Award awarded under this Agreement
shall terminate at the time any Cash Award Payment Amount is paid to Participant
or at such time that the Cash Award is no longer eligible to become paid, as
determined by the Administrator or the Committee.
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5. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL EVENTS
(a) Termination of Employment. Subject to Section 7.2 or 7.3 of the Plan
and subject to adjustment as provided in Section 6 hereof, if the Participant
ceases to be employed by or to provide services to the Corporation and its
Subsidiaries (regardless of the reason for such termination, whether with or
without cause, voluntarily or involuntarily, or due to disability), the
Participant's Cash Award and any right to receive a Cash Award Payment Amount
shall terminate to the extent a Cash Award Payment Amount has not yet been
determined by the Committee as described in Section 3, as of the date the
Participant's employment or services terminate; provided, however, that in the
event of the Participant's death at a time when the Participant is employed by
or providing services to the Corporation or any of its Subsidiaries, a pro-rata
portion of the Cash Award Payment Amount shall be paid (equal to the Cash Award
Payment Amount that the Participant would have been entitled to had he or she
continued to be employed through the applicable payment date, multiplied by a
fraction the numerator of which is the number of days in the Measurement Period
that the Participant was employed by the Corporation or one of its Subsidiaries
prior to the Participant's death and the denominator of which is the total
number of days in the Measurement Period) to the Participant's legal
representative at the same time as Cash Award Payment Amounts are paid generally
with respect to the Measurement Period. The Administrator shall be the sole
judge, for purposes of the Cash Award, as to whether the Participant continues
to render services the Corporation or its Subsidiaries and the date, if any,
upon which such services shall be deemed to have terminated.
(b) Change in Control Events. Notwithstanding Section 5(a), upon the
occurrence of a Change in Control Event (as defined in Section 7.3 of the Plan),
subject to Section 6 below and Participant then being an Eligible Person, the
Cash Award Payment Amount, based on a Cash Award Performance Percentage of 100%
(or such greater percentage as the Committee, in its sole discretion, may deem
appropriate in the circumstances), multiplied by the Target Cash Award shall
become payable hereunder to Participant. Such Cash Award Payment Amount (after
giving effect to the foregoing sentence) shall be paid, net of amounts withheld
in satisfaction of the requirements of Section 8(b) below, to Participant or, in
the event of Participant's death, to Participant's legal representative, as soon
as practicable following the Change in Control Event. Notwithstanding the
foregoing provisions, if the Change in Control Event giving rise to payment of
the Cash Award Payment Amount is not also a "change in control event" as such
term is defined under Section 409A of the Code ("Section 409A") and regulations
or other guidance promulgated thereunder, then payment with respect to the Cash
Award shall not be made until the end of the Measurement Period as originally
scheduled.
6. ADJUSTMENTS; PERFORMANCE-BASED COMPENSATION
(a) Adjustments. In determining the Cash Award Performance Percentage
and the Cash Award Payment Amount with respect to the Measurement Period, the
Committee may adjust the Performance Goals previously determined by the
Committee to the extent permitted pursuant to Section 5.2.2 of the Plan.
(b) Reduction of Cash Award Payment Amount. Notwithstanding Section 3 or
any other term of this Agreement, the Committee may in its sole and absolute
discretion reduce the Cash Award Payment Amount, if the Committee determines
that such reduction is necessary or advisable due to current business conditions
or for any other reason, including the Committee's judgment that the Performance
Goals have become an inappropriate measure of achievement, a change in the
employment status, position or duties of the Participant, unsatisfactory
performance of the Participant, or the Participant's service for less than the
Measurement Period.
(c) Performance-Based Compensation. Cash Awards are intended to be
Performance-Based Awards based on Business Criteria, as described in Section 5.2
of the Plan. Compensation attributable to the Agreement is intended to
constitute qualified performance-based compensation under Section 162(m) of the
Code and the regulations thereunder. This Agreement shall be construed and
administered by the Committee in a manner consistent with this intent.
7. ACKNOWLEDGMENT OF NATURE OF PLAN AND CASH AWARDS
In accepting the Cash Award, Participant acknowledges that:
(a) the Plan is established voluntarily by the Corporation, it is
discretionary in nature and may be modified, amended, suspended or terminated by
the Corporation at any time, as provided in the Plan;
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(b) the Award of this Cash Award is voluntary and occasional and does
not create any contractual or other right to receive future awards of Cash
Awards, or benefits in lieu of Cash Awards even if Cash Awards have been awarded
repeatedly in the past;
(c) all decisions with respect to future awards, if any, will be at the
sole discretion of the Corporation; and
(d) Participant's participation in the Plan is voluntary.
8. TAXES
(a) Responsibility for Tax-Related Items. Regardless of any action the
Corporation or Participant's actual employer takes with respect to any or all
income tax (including federal, state and local taxes), social insurance, payroll
tax or other tax-related withholding ("TAX RELATED ITEMS"), Participant
acknowledges that the ultimate liability for all Tax Related Items legally due
by Participant is and remains Participant's responsibility and that the
Corporation and/or the Participant's actual employer (i) make no representations
or undertakings regarding the treatment of any Tax Related Items in connection
with any aspect of the Cash Award, including the grant of the Cash Award, the
determination of the Cash Award Payment Amount or the payment of the Cash Award
Payment Amount; and (ii) do not commit to structure the terms of the grant or
any aspect of the Cash Award to reduce or eliminate the Participant's liability
for Tax Related Items.
(b) Withholding Taxes. The Corporation (or any of its Subsidiaries last
employing the Participant) shall be entitled to withhold from any Cash Award
Payment Amount an amount necessary to satisfy any withholding obligations of the
Corporation or any Subsidiary with respect to such payment.
9. NONTRANSFERABILITY
Prior to the time that a Cash Award Payment Amount is paid to
Participant, no Cash Award or right to receive a Cash Award Payment Amount, any
interest therein, nor any amount payable in respect thereof, may be sold,
assigned, transferred, pledged or otherwise disposed of, alienated or
encumbered, either voluntarily or involuntarily. The transfer restrictions in
the preceding sentence shall not apply to (a) transfers to the Corporation, or
(b) subject to Section 5(a), transfers by will or the laws of descent and
distribution.
10. NO RIGHT TO EMPLOYMENT
Nothing contained in this Agreement or the Plan constitutes an
employment or service commitment by the Corporation or any of its Subsidiaries,
affects the Participant's status, if he or she is an employee, as an employee at
will who is subject to termination without cause, confers upon the Participant
any right to remain employed by or in service to the Corporation or any
Subsidiary, interferes in any way with the right of the Corporation or any
Subsidiary at any time to terminate such employment or service, or affects the
right of the Corporation or any Subsidiary to increase or decrease the
Participant's other compensation.
11. ARBITRATION
Any controversy arising out of or relating to this Agreement (including
these Standard Terms) and/or the Plan, their enforcement or interpretation, or
because of an alleged breach, default, or misrepresentation in connection with
any of their provisions, or any other controversy arising out of or related to
the Cash Award, including, but not limited to, any state or federal statutory
claims, shall be submitted to arbitration in Orange County, California, before a
sole arbitrator selected from Judicial Arbitration and Mediation Services, Inc.,
Orange, California, or its successor ("JAMS"), or if JAMS is no longer able to
supply the arbitrator, such arbitrator shall be selected from the American
Arbitration Association, and shall be conducted in accordance with the
provisions of California Code of Civil Procedure Sections 1280 et seq. as the
exclusive forum for the resolution of such dispute; provided, however, that
provisional injunctive relief may, but need not, be sought by either party to
this Agreement in a court of law while arbitration proceedings are pending, and
any provisional injunctive relief granted by such court shall remain effective
until the matter is finally determined by the arbitrator. Final resolution of
any dispute through arbitration may include any remedy or relief which the
arbitrator deems just and equitable, including any and all remedies provided by
applicable state or federal statutes. At the conclusion of the arbitration, the
arbitrator shall issue a
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written decision that sets forth the essential findings and conclusions upon
which the arbitrator's award or decision is based. Any award or relief granted
by the arbitrator hereunder shall be final and binding on the parties hereto and
may be enforced by any court of competent jurisdiction. The parties acknowledge
and agree that they are hereby waiving any rights to trial by jury in any
action, proceeding or counterclaim brought by either of the parties against the
other in connection with any matter whatsoever arising out of or in any way
connected with any of the matters referenced in the first sentence above. The
parties agree that Corporation shall be responsible for payment of the forum
costs of any arbitration hereunder, including the arbitrator's fee. The parties
further agree that in any proceeding with respect to such matters, each party
shall bear its own attorney's fees and costs (other than forum costs associated
with the arbitration) incurred by it or him or her in connection with the
resolution of the dispute. By accepting the Cash Award, the Participant consents
to all of the terms and conditions of this Agreement (including, without
limitation, this Section 11).
12. GOVERNING LAW
This Agreement, including these Standard Terms, shall be interpreted and
construed in accordance with the laws of the State of Delaware (without regard
to conflict of law principles thereunder) and applicable federal law.
13. DEFERRALS; CONSTRUCTION
(a) To the extent permitted under the Corporation's Amended and Restated
Deferred Compensation Plan, as amended from time to time, Participant may elect
to defer receipt of any or all Cash Award Payment Amounts due hereunder. Such
election shall be made, and any such deferral shall be effected and
administered, in accordance with the Deferred Compensation Plan.
(b) This Agreement shall be construed and interpreted to comply with
Section 409A. The Corporation reserves the right to amend this Agreement to the
extent it reasonably determines is necessary in order to preserve the intended
tax consequences of the Cash Award in light of Section 409A and any regulations
or other guidance promulgated thereunder.
14. SEVERABILITY
If the arbitrator selected in accordance with Section 11 or a court of
competent jurisdiction determines that any portion of this Agreement (including
these Standard Terms) or the Plan is in violation of any statute or public
policy, then only the portions of this Agreement or the Plan, as applicable,
which are found to violate such statute or public policy shall be stricken, and
all portions of this Agreement and the Plan which are not found to violate any
statute or public policy shall continue in full force and effect. Furthermore,
it is the parties' intent that any order striking any portion of this Agreement
and/or the Plan should modify the stricken terms as narrowly as possible to give
as much effect as possible to the intentions of the parties hereunder.
15. ENTIRE AGREEMENT
This Agreement (including these Standard Terms) and the Plan together
constitute the entire agreement and supersede all prior understandings and
agreements, written or oral, of the parties hereto with respect to the subject
matter hereof. The Plan and this Agreement may be amended pursuant to Section
8.6 of the Plan. Such amendment must be in writing and signed by the
Corporation. The Corporation may, however, unilaterally waive any provision
hereof in writing to the extent such waiver does not adversely affect the
interests of the Participant hereunder, but no such waiver shall operate as or
be construed to be a subsequent waiver of the same provision or a waiver of any
other provision hereof.
16. SECTION HEADINGS
The section headings of this Agreement are for convenience of reference
only and shall not be deemed to alter or affect any provision hereof.
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EXHIBIT 10.3
EXHIBIT A
LONG-TERM CASH AWARD - EXECUTIVES
PERFORMANCE GOALS
[Performance Goals shall be expressed in terms of one or more of the following
corporate measures (or such other measures that may be defined as "Business
Criteria" pursuant to the Plan): earnings per share, cash flow (which means cash
and cash equivalents derived from either net cash flow from operations or net
cash flow from operations, financing and investing activities), total
stockholder return, gross revenue, revenue growth, operating income (before or
after taxes), net earnings (before or after interest, taxes, depreciation and/or
amortization), return on equity or on assets or on net investment, cost
containment or reduction, or any combination thereof. Each such Performance Goal
may be expressed on an absolute and/or relative basis, may employ comparisons
with past performance of the Corporation (including one or more divisions)
and/or the current or past performance of other companies, and in the case of
earnings-based measures, may employ comparisons to capital, stockholders' equity
and shares outstanding.]
A-1