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EXHIBIT 10.10.1
Western Digital Corporation
Deferred Compensation Plan
Master Plan Document
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TABLE OF CONTENTS
Page
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ARTICLE 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 Selection, Enrollment, Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3 Deferral Commitments/Interest Crediting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 4 Short-Term Payout: Unforseeable Financial Emergencies: Withdrawal Election . . . . . . . . . . . . . . 9
ARTICLE 5 Retirement Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 6 Pre-Retirement Survivor Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 7 Termination Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 8 Disability Waiver and Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 9 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 10 Leave of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 11 Termination Amendment or Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 12 Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 13 Other Benefits and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 14 Claims Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 15 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 16 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Western Digital Corporation
Deferred Compensation Plan
Master Plan Document
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WESTERN DIGITAL CORPORATION
DEFERRED COMPENSATION PLAN
Amended and Restated Effective January 9, 1997
PURPOSE
The purpose of this Plan is to provide specified benefits to a select
group of management, highly compensated Employees and Directors who may
contribute materially to the continued growth, development and future business
success of Western Digital Corporation, a Delaware corporation, [and its
subsidiaries] that sponsor this Plan. This Plan shall be unfunded for tax
purposes and for purposes of Title I of ERISA. The Plan was originally adopted
effective May 16, 1994 and is hereby amended and restated in its entirety,
effective January 9, 1997.
ARTICLE 1
Definitions
For purposes hereof, the following phrases or terms shall have the following
indicated meanings:
1.1 "Account Balance" shall mean the sum of (i) the Deferral Amount, plus
(ii) interest credited in accordance with all the applicable interest
crediting provisions of this Plan, less (iii) all distributions. This
account shall be a bookkeeping entry only and shall be utilized solely
as a device for the measurement and determination of the amounts to be
paid to a Participant pursuant to this Plan.
1.2 "Annual Deferral Amount" shall mean that portion of a Participant's
Base Annual Salary, Management Incentive Compensation Plan and Profit
Sharing Plan (Cash Element) and/or Directors Fees to be paid during a
Plan Year that a Participant elects to have and is deferred, in
accordance with Article 3, for such Plan Year and any Company
contributions under Section 3.2 hereof that is credited for such Plan
Year. In the event of a Participant's Retirement, Disability (if
deferrals cease in accordance with Section 8.1), death or a
Termination of Employment prior to the end of a Plan Year, such year's
Annual Deferral Amount shall be the actual amount deferred and
withheld prior to such event and any Company contributions in respect
of such period.
1.3 "Base Annual Salary" shall mean the annual compensation, excluding
bonuses, commissions, overtime, relocation expenses, incentive
payments, non-monetary awards, other fees, and automobile allowances,
paid to a Participant for employment services rendered to any
Employer, before reduction for compensation deferred pursuant to all
qualified, non-qualified and Code Section 125 plans of any Employer.
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Deferred Compensation Plan
Master Plan Document
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1.4 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled
to receive benefits under this Plan upon the death of a Participant.
1.5 "Beneficiary Designation Form" shall mean the form established from
time to time by the Committee that a Participant completes, signs and
returns to the Committee to designate one or more Beneficiaries and
attached hereto as Exhibit A.
1.6 "Board" shall mean the board of directors of the Company.
1.7 "Change in Control" means and shall be deemed to occur if any of the
following events occur:
(a) any Person (other than an Exempt Person), alone or together
with its Affiliates and Associates, including any group of
Persons which is deemed a "person" under Section 13(d)(3) of
the Exchange Act, becomes the Beneficial Owner, directly or
indirectly, of thirty-three and one-third percent or more of
(i) the then-outstanding shares of the Company's common stock
or (ii) securities representing thirty-three and one-third
percent or more of the combined voting power of the Company's
then outstanding voting securities;
(b) a change, during any period of two consecutive years, of a
majority of the Board of the Company as constituted as of the
beginning of such period, unless the election, or nomination
for election by the Company's stockholders, of each director
who was not a director at the beginning of such period was
approved by vote of at least two-thirds of the Incumbent
Directors then in office (for purposes hereof, "Incumbent
Directors" shall consist of the directors holding office as of
the effective date of this Plan and any person becoming a
director subsequent to such date whose election, or nomination
for election by the Company's stockholders, is approved by a
vote of at least a majority of the incumbent Directors then in
office);
(c) consummation of any merger, consolidation, reorganization or
other extraordinary transactions (or series of related
transactions) involving the Company which results in the
stockholders of the Company having power to vote in the
ordinary election of directors immediately prior to such
transaction (or series of related transactions) failing to
beneficially own at least a majority of the securities of the
Company having the power to vote in the ordinary election of
directors which are outstanding after giving effect to such
transaction (or series of related transactions); or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or the sale of substantially all of
the assets of the Company; or
(e) substantially all of the assets of the Company are sold or
otherwise transferred to parties that are not within a
"controlled group of corporations" (as defined in Code Section
1563) in which the Company is a member.
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Master Plan Document
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1.8 "Claimant" shall have the meaning set forth in Section 14.1.
1.9 "Code" shall mean the Internal Revenue Code of 1986, as may be amended
from time to time.
1.10 "Committee" shall mean the committee described in Article 12.
1.11 "Company" shall mean Western Digital Corporation, a Delaware
corporation.
1.12 "Company Common Stock" shall mean authorized and unissued shares or
treasury shares of the Company's Common Stock.
1.13 "Crediting Rate" shall mean, for each Plan Year, an annual interest
rate determined by the Committee prior to the beginning of each Plan
Year.
1.14 "Deferral Amount" shall mean the sum of all of a Participant's Annual
Deferral Amounts, but taking into account only the vested portion of
any Company contributions.
1.15 "Deduction Limitation" shall mean the following described limitation
on the annual benefit that may be distributed pursuant to the
provisions of this Plan. The limitation shall be applied to
distributions under this Plan as set forth in this Plan. If the
Company determines in good faith prior to a Change in Control that
there is a reasonable likelihood that any compensation paid to a
Participant for a taxable year of the Company would not be deductible
by the Company solely by reason of the limitation under Code Section
162(m), then to the extent deemed necessary by the Company to ensure
that the entire amount of any distribution to the Participant pursuant
to this Plan prior to the Change in Control is deductible, the Company
may defer all or any portion of the distribution. Any amounts
deferred pursuant to this limitation shall continue to be credited
with interest in accordance with Section 3.5 below. The amounts so
deferred and interest thereon shall be distributed to the Participant
or his or her Beneficiary (in the event of the Participant's death) at
the earliest possible date, as determined by the Company in good
faith, on which the deductibility of compensation paid or payable to
the Participant for the taxable year of the Company during which the
distribution is made will not be limited by Section 162(m), or if
earlier, the effective date of a Change in Control.
1.16 "Director" shall mean any member of the board of directors of any
Employer.
1.17 "Directors Fees" shall mean the annual fees paid by any Employer,
including retainer fees and meetings fees, as compensation for serving
on the board of directors, and after January 8, 1997, shall include
shares of Company Common Stock granted to Non-Employee Directors on a
mandatory or elective basis under the terms of the Stock Plan.
1.18 "Disability" shall mean a period of disability during which a
Participant qualifies for benefits under the Participant's Employer's
long-term disability plan, or, if a Participant does not participate
in such a plan, a period of disability during which the Participant
would have qualified for benefits under such a plan had the
Participant been a participant in such a plan, as
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Western Digital Corporation
Deferred Compensation Plan
Master Plan Document
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determined in the sole discretion of the Committee. If the
Participant's Employer does not sponsor such a plan or discontinues to
sponsor such a plan, Disability shall be determined by the Committee
in its sole discretion.
1.19 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.20 "Election Form" shall mean the form established from time to time by
the Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan and attached hereto as
Exhibit B.
1.21 "Employee" shall mean a person who is an employee of any Employer.
1.22 "Employer(s)" shall mean the Company and/or any of its subsidiaries
that have been selected by the Board to participate in the Plan.
1.23 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as may be amended from time to time.
1.24 "Management Incentive Compensation Plan" shall mean compensation paid
annually to a Participant as an Employee under the Western Digital
Corporation Management Incentive Plan.
1.25 "Participant" shall mean any Employee or Director (i) who is selected
to participate in the Plan, (ii) who elects to participate in the
Plan, (iii) who signs a Plan Agreement, an Election Form and a
Beneficiary Designation Form, (iv) whose signed Plan Agreement,
Election Form and Beneficiary Designation Form are accepted by the
Committee, (v) who commences participation in the Plan, (vi) whose
Plan Agreement has not terminated, and (vii) whose Account Balance has
not been paid in full.
1.26 "Plan" shall mean the Company's Deferred Compensation Plan, which
shall be evidenced by this instrument and by each Plan Agreement, as
may be amended from time to time.
1.27 "Plan Agreement" shall mean a written agreement, as may be amended
from time to time. which is entered into by and between an Employer
and a Participant. Each Plan Agreement executed by a Participant
shall provide for the entire benefit to which such Participant is
entitled to under the Plan, and the Plan Agreement bearing the latest
date of acceptance by the Committee shall govern such entitlement.
1.28 "Years of Plan Participation" shall mean the total number of full Plan
Years a Participant has been a Participant in the Plan. For purposes
of a Participant's first Plan Year of participation only, any partial
Plan Year of participation shall be treated as a full Plan Year.
1.29 "Plan Year" shall, for the first Plan Year, begin on May l6, 1994, and
end on December 31, 1994. For each Plan Year thereafter, the Plan
Year shall begin on January 1 of each year and continue through
December 31.
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Deferred Compensation Plan
Master Plan Document
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1.30 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.31 "Profit Sharing Plan (Cash Element)" shall mean that portion of
compensation paid in cash annually to a Participant as an Employee
under the Western Digital Corporation Profit Sharing Plan.
1.32 "Retirement", "Retires" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason
other than a leave of absence, death or Disability on or after the
attainment of age fifty-five (55); and shall mean, with respect to a
Director who is not an Employee, severance of his or her directorships
with all Employers on or after the latter of (a) the attainment of age
seventy (70), or (b) in the sole discretion of the Committee, an age
later than age seventy (70). if a Participant is both an Employee and
a Director, Retirement shall not occur until he or she Retires as both
an Employee and a Director, which Retirement shall be deemed to be a
Retirement as a Director; provided, however, that such a Participant
may elect, prior to Retirement and in accordance with the policies and
procedures established by the Committee, to Retire for purposes of
this Plan at the time he or she Retires as an Employee, which
Retirement shall be deemed to be a Retirement as an Employee.
1.33 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.34 "Short-Term Payout" shall mean the payout set forth in Section 4.1.
1.35 "Stock Plan" shall mean the Western Digital Corporation Non-Employee
Directors Stock-For-Fees Plan as amended and restated effective
January 9, 1997.
1.36 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.37 "Termination of Employment" shall mean the ceasing of employment with
all Employers, or service as a Director of all Employers, voluntarily
or involuntarily, for any reason other than Retirement, Disability,
death or an authorized leave of absence. If a Participant is both an
Employee and a Director, a Termination of Employment shall occur only
upon the termination of the last position held; provided, however,
that such a Participant may elect, in accordance with the policies and
procedures established by the Committee, to be treated for purposes of
this Plan as having experienced a Termination of Employment at the
time he or she ceases employment with an Employer as an Employee.
1.38 "Trust" shall mean the grantor trust, within the meaning of Code
Section 671, established pursuant to that certain Master Trust
Agreement, dated as of May 16, 1994, between the Company and the
trustee named therein, as amended from time to time.
1.39 "Unforeseeable Financial Emergency" shall mean an immediate and heavy
financial need that cannot be relieved by any other resources
including (i) reimbursement or compensation by insurance or otherwise,
(ii) reasonable liquidation of the Participant's assets if doing so
would
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Deferred Compensation Plan
Master Plan Document
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not cause a hardship in itself, (iii) a suspension of elective
contributions to the Company's qualified 401(k) plan, (iv)
distributions or nontaxable loans from the Company's other plans or
any other employer's plans; (v) loans from commercial sources at
reasonable commercial terms, (vi) bank accounts, or (vii) reasonable,
periodic payment arrangements with a creditor. An immediate and heavy
financial need exists due to a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant, loss of
the Participant's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant, but do not include
children's education expenses or home purchase or improvement
expenses.
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be limited to
a select group of management, highly compensated Employees and
Directors of the Employers. From that group, the Committee shall
select, in its sole discretion, Employees and Directors to participate
in the Plan.
2.2 Enrollment Requirements. As a condition to participation, for the
first Plan Year of the Plan each selected Employee or Director shall
complete, execute and return to the Committee an time prior to May 16,
1994, a Plan Agreement, an Election Form and a Beneficiary Designation
Form. Individuals initially selected to participate after May 16,
1994 may commence participation by completing, executing and returning
to the Committee a Plan Agreement, Election Form and Beneficiary
Designation Form, provided such documents are returned within 30 days
of selection. In addition, the Committee shall establish from time to
time such other enrollment requirements as it determines in its sole
discretion are necessary.
2.3 Eligibility; Commencement of Participation. Provided an Employee or
Director selected to participate in the Plan has met all enrollment
requirements set forth in this Plan and required by the Committee,
including timely returning all required documents to the Committee,
that Employee or Director shall commence participation in the Plan on
May 16, 1994, or, in the case of those selected for participation
after that date, the May 1, or January l immediately following the
date on which the Employee or Director completes all enrollment
requirements, provided that a Director who is elected or appointed
other than at an annual stockholders meeting may commence
participation on the date he or she joins the Board, subject to new
elections for each succeeding Plan Year pursuant to Section 3.3. If
an Employee or a Director fails to meet in a timely fashion all such
requirements, that Employee or the Director shall not be eligible to
participate in the Plan until the first day of the Plan Year following
the delivery to and acceptance by the Committee of the required
documents.
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Deferred Compensation Plan
Master Plan Document
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ARTICLE 3
Deferral Commitments/Interest Crediting
3.1 Minimum Deferral.
For each Plan Year, a Participant may elect to defer Base Annual
Salary, annual cash payments under the Management Incentive
Compensation Plan and the Profit Sharing Plan (Cash Element) and/or
Directors Fees in the following minimum amounts for each deferral
elected, up to a maximum of 100 percent of each:
Minimum
Deferral Amount
-------- ------
Aggregate of Base Annual Salary, Management
Incentive Plan, and Profit Sharing Plan (Cash
Element) $2,000
Directors Fees $2,000 (including
-------------- shares of Company
Common Stock of
equivalent value as
determined under
Section 3.8 hereof)
If no election is made, the amount deferred shall be zero.
3.2 Company Contribution. For each Plan Year, the Board, in its
discretion may elect to credit to each Employee Participant's Account
Balance an additional amount to be determined by it, in its
discretion. Such contributions shall become vested and nonforfeitable
in accordance with the provisions governing employer contributions
under the Company's qualified 401(k) plan. Notwithstanding the
foregoing, but except as provided in Section 4.3 hereof, a Participant
shall acquire a fully vested and nonforfeitable interest in all
Company contributions hereunder upon his or her Retirement,
Disability, or upon the occurrence of a Change in Control, whichever
is earliest. In addition, the Company shall credit to the Account
Balances of Participants who are non-employee Directors a number of
shares of Company Common Stock representing the 15 percent premium
awarded under Section 7(b) of the Stock Plan.
3.3 Election to Defer; Effect of Election Form. In connection with a
Participant's commencement of participation in the Plan, the
Participant shall make a deferral election by delivering to the
Committee a completed and signed Election Form, which election and
form must be accepted by the Committee for valid election to exist.
For each succeeding Plan Year, a new Election Form must be delivered
to the Committee, in accordance with its rules and procedures, before
the end of the Plan Year preceding the Plan Year for which the
election is made; provided that any deferral election in respect of
Directors Fees or Company Common Stock otherwise
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Master Plan Document
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payable under the Stock Plan for the 1997 Plan Year may be made on or
before January 31, 1997. If no Election Form is timely delivered for
a Plan Year, no Annual Deferral Amount shall be withheld for that Plan
Year.
3.4 Withholding of Deferral Amounts. For each Plan Year, the Base Annual
Salary portion of the Annual Deferral Amount shall be withheld each
payroll period in equal amounts from the Participant's Base Annual
Salary. The Management Incentive Compensation Plan and Profit Sharing
Plan (Cash Element) and/or Directors Fees portion of the Annual
Deferral Amount shall be withheld at the time such amounts are or
otherwise would be paid to the Participant.
3.5 Interest Crediting Prior to Distribution. The Plan shall credit
monthly at the end of each month each Account Balance an amount equal
to such balance multiplied by one-twelfth of the applicable Crediting
Rate.
3.6 Installment Distributions. In the event a benefit is paid in
installments under Articles 5, 6 or 8, installment payment amounts
shall be determined in the following manner:
(a) Interest Rate. The interest rate to be used to calculate
installment payment amounts shall be a fixed interest rate
that is determined by averaging the Crediting Rates for the
Plan Year in which installment payments commence and the four
(4) preceding Plan Years. If a Participant has completed
fewer than five (5) Plan Years, this average shall be
determined using the Crediting Rates for the Plan Years during
which the Participant participated in the Plan.
(b) "Deemed" Installment Payments. For purposes of calculating
installment payment amounts only (and notwithstanding the fact
that installment payments shall actually be paid monthly),
installment payments for each 12 month period, starting with
the date that the Participant became eligible to receive a
benefit under this Plan (the "Eligibility Date") and
continuing thereafter for each additional 12 month period
until the Participant's Account Balance is paid in full, shall
be deemed to have been paid in one sum as of the first day of
each such 12 month period. (The result of this is that
interest crediting shall be made on an annual basis after
taking into account the "deemed" annual installment payment
for the 12 month period.)
(c) Amortization. Based on the interest rate determined in
accordance with Section 3.6(a) above and the "deemed" form of
installment payments determined in accordance with Section
3.6(b) above, the Participant's Account Balance shall be
amortized in equal annual installment payments over the term
of the specified payment period (starting as of the
Eligibility Date and stated in years rather than months).
(d) Monthly Payments. The annual installment payment determined
in Section 3.6(c) above shall be divided by 12, and the
resulting number shall be the monthly installment payment that
is to be paid each month during the specified monthly
installment payment period in accordance with the other terms
and conditions of this Plan.
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3.7 FICA and Other Taxes. For each Plan Year in which an Annual Deferral
Amount is being withheld, the Participant's Employer(s) shall ratably
withhold from that portion of the Participant's Base Annual Salary or
Directors Fees that is not being deferred, the Participant's share of
FICA and other employment taxes. If necessary, the Committee shall
reduce the Annual Deferral Amount in order to comply with this Section
3.7.
3.8 Special Rule for Company Common Stock. Notwithstanding any other
provision hereof to the contrary, for purposes of the interest
crediting provisions hereof (including but not limited to Sections 3.5
and 3.6(a)), an Account Balance shall not include amounts credited
thereto as shares of Company Common Stock. Such shares shall always
be valued at the closing price of such shares on the exchange on which
such shares are traded as of the relevant date. A distribution of
such shares shall be in the form of Company Common Stock equal to the
number of shares credited to the particular Account Balance.
Notwithstanding any other provisions herein to the contrary, all
distributions of the Company Common Stock portion of an Account
Balance shall be made in a lump sum at the time the distribution is to
commence.
ARTICLE 4
Short-Term Payout: Unforeseeable Financial Emergencies: Withdrawal Election
4.1 Short-Term Payout. Subject to the Deduction Limitation, in connection
with each election to defer an Annual Deferral Amount, a Participant may
elect to receive a future "Short-Term Payout" from the Plan with respect
to that Annual Deferral Amount. The Short-Term Payout shall be a lump
sum payment in an amount that is equal to the Annual Deferral Amount
plus interest credited in the manner provided in Section 3.5 above on
that amount. Subject to the other terms and conditions of this Plan,
each Short-Term payout elected shall be paid within 60 days of the first
day of the Plan Year that is a number of years (not less than three, as
specified by the Participant) after the first day of the Plan Year in
which the Annual Deferral Amount is actually deferred.
4.2 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies.
If the Participant experiences an Unforeseeable Financial Emergency,
the Participant may petition the Committee to (a) suspend any
deferrals required to be made by a Participant and/or (b) receive a
partial or full payout from the Plan, provided that any partial payout
shall not exceed the portion of the Account Balance attributable to
other than Company Common Stock. In no event may the payout exceed
the lesser of the Participant's Account Balance, calculated as if such
Participant were receiving a Termination Benefit, or the amount
reasonably needed to satisfy the Unforeseeable Financial Emergency.
Only one such withdrawal may be made in any 24 month period, if,
subject to the sole discretion of the Committee, the petition for a
suspension and/or payout is approved, suspension shall take effect
upon the date of approval and any payout shall be made within 60 days
of the date of approval. A request for a withdrawal under this
Section 4.2 must be accompanied by (x) a letter signed by the
Participant describing all the circumstances and the resources he has
available to meet the need and a certification that the resources
listed in Section 1.39 hereof and all others are
unavailable/insufficient/non-existent to meet the need, (y) copies of
the appropriate official
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documentation (e.g., bills, evictions or foreclosure notices or
documents showing that such are impending), and (z) statement of
monthly household income and expenses (with explanations for unusual
items).
4.3 Withdrawal Election. A Participant may elect, at any time, to
withdraw all of his or her Account Balance prior to the time such
Account Balance is otherwise due and payable in whole or in part,
subject to a 10% withdrawal penalty (the net amount shall be referred
to as the "Withdrawal Amount"). No partial withdrawals of that
balance shall be allowed. The Participant shall make this election by
giving the Committee advance written notice of the election in a form
determined from time to time by the Committee. The penalty shall be
equal to 10% of the portion of the Participant's Account Balance,
determined immediately prior to the withdrawal, that is not otherwise
due and payable. The Participant shall be paid the Withdrawal Amount
within 60 days of his or her election.
Once the Withdrawal Amount is paid, the Participant's participation in
the Plan shall terminate and the Participant shall not be eligible to
participate in the Plan in the future. The payment of this Withdrawal Amount
shall not be subject to the Deduction Limitation.
ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. Subject to the Deduction Limitation, a
Participant who Retires shall receive, as a Retirement Benefit, his or
her Account Balance.
5.2 Payment of Retirement Benefits. A Participant, in connection with his
or her commencement of participation in the Plan, shall elect on an
Election Form to receive the Retirement Benefit in a lump sum or in
equal monthly payments (the latter determined in accordance with
Section 3.6 above) over a period of 60, 120, 180, or 240 months. The
Participant may change his or her election to an allowable alternative
payout period by submitting a new Election Form to the Committee,
provided that any such Election Form is submitted at least 3 years
prior to the Participant's Retirement and is accepted by the Committee
in its sole discretion. The Election Form most recently accepted by
the Committee shall govern the payout of the Retirement Benefit. The
lump sum payment shall be made, or installment payments shall
commence, no later than 60 days after the date the Participant
Retires.
5.3 Death Prior to Completion of Retirement Benefits. If a Participant
dies after Retirement but before the Retirement Benefit is paid in
full, the Participant's unpaid Retirement Benefit payments shall
continue and shall be paid to the Participant's Beneficiary (a) over
the remaining number of months and in the same amounts as that benefit
would have been paid to the Participant had the Participant survived,
or (b) in a lump sum, if requested by the Beneficiary and allowed in
the sole discretion of the Committee, that is equal to the
Participant's unpaid remaining Account Balance.
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ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation,
if a Participant dies before he or she Retires, experiences a
Termination of Employment or suffers a Disability, the Participant's
Beneficiary shall receive a Pre-Retirement Survivor Benefit equal to
the Participant's Account Balance.
6.2 Payment of Pre-Retirement Survivor Benefits. A Participant, in
connection with his or her commencement of participation in the Plan,
shall elect on an Election Form whether the Pre-Retirement Survivor
Benefit shall be received by his or her Beneficiary in a lump sum or
in equal monthly payments (the latter determined in accordance with
Section 3.6 above) over a period of 60, 120, 180, or 240 months. The
Participant may change this election to an allowable alternative
payout period by submitting a new Election Form to the Committee,
which form must be accepted by the Committee in its sole discretion.
The Election Form most recently accepted by the Committee prior to the
Participant's death shall govern the payout of the Participant's
Pre-Retirement Survivor Benefit. Despite the foregoing, if the
Participant's Account Balance at the time of his or her death is less
than $25,000, payment of the Pre-Retirement Survivor Benefit may be
made, in the sole discretion of the Committee, in a lump sum or in
installment payments that do not exceed five years in duration. The
lump sum payment shall be made, or installment payments shall
commence, no later than 60 days after the date the Committee is
provided with proof that is satisfactory to the Committee of the
Participant's death.
ARTICLE 7
Termination Benefit
7.1 Termination Benefits. Subject to the Deduction Limitation, if a
Participant experiences a Termination of Employment prior to his or
her Retirement, death or Disability, the Participant shall receive a
Termination Benefit, which shall be equal to the Participant's Account
Balance.
7.2 Payment of Termination Benefit. The Termination Benefit shall be paid
in a lump sum within 60 days of the Termination of Employment.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver.
(a) Eligibility. By participating in the Plan, all Participants
are eligible for this waiver.
(b) Waiver of Deferral. Credit for Plan Year of Disability. A
Participant who is determined by the Committee to be suffering
from a Disability shall be excused from fulfilling that
portion of the Annual Deferral Amount commitment that would
otherwise
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have been withheld from a Participant's Base Annual Salary,
Annual Bonus and/or Directors Fees for the Plan Year during
which the first suffers a Disability. During the period of
Disability, the Participant shall not be allowed to make any
additional deferral elections.
(c) Return to Work. If a Participant returns to employment or
service as a Director with an Employer after a Disability
ceases, the Participant may elect to defer an Annual Deferral
Amount for the Plan Year following his or her return to
employment or service and for every Plan Year thereafter while
a Participant in the Plan; provided such deferral elections
are otherwise allowed and an Election Form is delivered to and
accepted by the Committee for each such election in accordance
with Section 3.3 above.
8.2 Disability Benefit. A Participant suffering a Disability shall, for
benefit purposes under this Plan, continue to be considered to be
employed or in the service of an Employer as a Director and shall be
eligible for the benefits provided for in Articles 4, 5, 6 or 7 in
accordance with the provisions of those Articles. Notwithstanding the
above, the Committee shall have the right, in its sole and absolute
discretion and for purposes of this Plan only, to terminate a
Participant's employment or service as a Director at any time after
such Participant is determined to be permanently disabled (i) under
the Participant Employer's long-term disability plan (or would have
been determined to be permanently disabled had he or she participated
in that plan), or (ii) if such a plan does not exist, by the Committee
in its sole discretion.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as
contingent) to receive any benefits payable under the Plan to a
beneficiary upon the death of a Participant. The Beneficiary
designated under this Plan may be the same as or different from the
Beneficiary designation under any other plan of an Employer in which
the Participant participates.
9.2 Beneficiary Designation; Change; Spousal Consent. A Participant shall
designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the Committee or its
designated agent. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Committee's rules
and procedures, as in effect from time to time. If the Participant
names someone other than his or her spouse as a Beneficiary, a spousal
consent, in the form designated by the Committee, must be signed by
that Participant's spouse and returned to the Committee. Upon the
acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled. The
Committee shall be entitled to rely on the last Beneficiary
Designation Form filed by the Participant and accepted by the
Committee prior to his or her death.
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9.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and
acknowledged in writing by the Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the
benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the
Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the-right, exercisable in its discretion, to
cause the Participant's Employer to withhold such payments until this
matter is resolved to the Committee's satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to
the Participant, and that Participant's Plan Agreement shall terminate
upon such full payment of benefits.
ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take a paid leave of absence
from the employment of the Employer, the Participant shall continue to
be considered employed by the Employer and the Annual Deferral Amount
shall continue to be withheld during such paid leave of absence in
accordance Section 3.3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of
absence from the employment of the Employer, the Participant shall
continue to be considered employed by the Employer and the Participant
shall be excused from making deferrals until the earlier of the date
the leave of absence expires or the Participant returns to a paid
employment status. Upon such expiration or return, deferrals shall
resume for the remaining portion of the Plan Year in which the
expiration or return occurs, based on the deferral election, if any,
made for that Plan Year. if no election was made for that Plan Year,
no deferral shall be withheld.
ARTICLE 11
Termination Amendment or Modification
11.1 Termination. Any Employer reserves the right to terminate the Plan at
any time with respect to its participating Employees and Directors by
the actions of its board of directors. Upon the
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termination of the Plan, all Plan Agreements of a Participant shall
terminate and his, or her Account Balance, determined as if he or she
had experienced a Termination of Employment on the date of Plan
termination or, if Plan termination occurs after the date upon which
the Participant was eligible to Retire, the Participant had Retired on
the date of Plan termination, shall be paid to the Participant as
follows. Prior to a Change in Control, an Employer shall have the
right, in its sole discretion, and notwithstanding any elections made
by the Participant, to pay such benefits in a lump sum or in monthly
installments for up to 15 years, with interest credited during the
installment period as provided in Section 3.6. After a Change in
Control, the Employer shall be required to pay such benefits in a lump
sum. The termination of the Plan shall not adversely affect any
Participant or Beneficiary who has become entitled to the payment of
any benefits under the Plan as of the date of termination; provided
however, that the Employer shall have the right to accelerate
installment payments by paying the present value' equivalent of such
payments, using the Crediting Rate for the Plan Year in which the
termination occurs as the discount rate, in a lump sum or pursuant to
a different payment schedule.
11.2 Amendment. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to that Employer by the actions of its
board of directors; provided, however, that no amendment or
modification shall be effective to decrease or restrict the value of a
Participant's Account Balance in existence at the time the amendment
or modification is made, calculated as if the Participant had
experienced a Termination of Employment as of the effective date of
the amendment or modification, or, if the amendment or modification
occurs after the date upon which the Participant was eligible to
Retire, the Participant had Retired as of the effective date of the
amendment or modification. The amendment or modification of the Plan
shall not affect any Participant or Beneficiary who has become
entitled to the payment of benefits under the Plan as of the date of
the amendment or modification; provided, however, that the Employer
shall have the right to accelerate installment payments by paying the
present value equivalent of such payments, using the Crediting Rate
for the Plan Year of the amendment or modification as the discount
rate, in a lump sum or pursuant to a different payment schedule.
11.3 Effect of Payment. The full payment of the applicable benefit under
Articles 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries
under this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by a Committee
which shall consist of the Board, or such committee as the Board shall
appoint. Members of the Committee may be Participants under this
Plan. The Committee shall also have the discretion and authority to
(i) make, amend, interpret, and enforce all appropriate rules and
regulations for the administration of this Plan and (ii) decide or
resolve any and all questions including interpretations of this Plan,
as may arise in connection with the Plan.
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12.2 Agents. In the administration of this Plan, the Committee may, from
time to time, employ agents and delegate to them such administrative
duties as it sees fit (including acting through a duly appointed
representative) and-may from time to time consult with counsel who may
be counsel to any Employer.
12.3 Binding Effect of Decisions. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the
rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the
Plan.
12.4 Indemnity of Committee. All Employers shall indemnify and hold
harmless the members of the Committee against any and all claims,
losses, damages, expenses or liabilities arising from any action or
failure to act with respect to this Plan, except in the case of
willful misconduct by the Committee or any of its members.
12.5 Employer Information. To enable the Committee to perform its
functions, each Employer shall supply full and timely information to
the Committee on all matters relating to the compensation of its
Participants, the date and circumstances of the Retirement,
Disability, death or Termination of Employment of its Participants,
and such other pertinent information as the Committee may reasonably
require.
ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in
addition to any other benefits available to such Participant under any
other plan or program for employees of the Participant's Employer.
The Plan shall supplement and shall not supersede, modify or amend any
other such plan or program except as may otherwise be expressly
provided.
ARTICLE 14
Claims Procedures
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below
as a "Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within 60 days
after such notice was received by the Claimant. The claim must state
with particularity the determination desired by the Claimant. All
other claims must be made within 180 days of the date on which the
event that caused the claim to arise occurred. The claim must state
with particularity the determination desired by the Claimant.
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14.2 Notification of Decision. The Committee shall consider a Claimant's
claim within a reasonable time, and shall notify the Claimant in
writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole
or in part, to the Claimant's requested determination, and
such notice must set forth in a manner calculated to be
understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect the
claim, and an explanation of why such material or
information is necessary; and
(iv) an explanation of the claim review procedure set
forth in Section 14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice
from the Committee that a claim has been denied, in whole or in pan, a
Claimant (or the Claimant's duly authorized representative) may file
with the Committee a written request for a review of the denial of the
claim. Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant's duly authorized
representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other
special circumstances require additional time, in which case the
Committee's decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be understood
by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon
which the decision was based; and
(c) such other matters as the Committee deems relevant.
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14.5 Legal Action. A Claimant's compliance with the foregoing provisions
of this Article 14 is a mandatory prerequisite to a Claimant's right
to commence any legal action with respect to any claim for benefits
under this Plan.
ARTICLE 15
Trust
15.1 Establishment of the Trust. The Company shall establish the Trust,
and the Employers shall transfer over to the Trust such assets as the
Employers determine, in their sole discretion, are necessary to assist
in funding the Employer's future liabilities created with respect to
the Annual Deferral Amounts.
15.2 Interrelationship of the Plan and the Trust. The provisions of the
Plan and the Plan Agreement shall govern the rights of a Participant
to receive distributions pursuant to the Plan. The provisions of the
Trust shall govern the rights of the Employers, Participants and the
creditors of the Employers to the assets transferred to the Trust.
Each Employer shall at all times remain liable to carry out its
obligations under the Plan. Each Employer's obligations under the
Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the
Employer's obligations under this Agreement.
ARTICLE 16
Miscellaneous
16.1 Unsecured General Creditor. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interests or claims in any property or assets of an Employer. Any and
all of an Employer's assets shall be, and remain, the general,
unpledged unrestricted assets of the Employer. An Employer's
obligation under the Plan shall be merely that of an unfunded and
unsecured promise to pay money in the future.
16.2 Employer's Liability. An Employer's liability for the payment of
benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Employer and a Participant. An Employer
shall have no obligation to a Participant under the Plan except as
expressly provided in the Plan and his or her Plan Agreement.
16.3 Nonassignability. Neither a Participant nor any other person shall
have any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are expressly
declared to be, unassignable and non-transferable, except that the
foregoing shall not apply to any family support obligations set forth
in a court order. No part of the amounts payable shall, prior to
actual payment, be subject to seizure or sequestration for the payment
of any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, nor be transferable by operation of
law in the event of a Participant's or any other person's bankruptcy
or insolvency.
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16.4 Not a Contract of Employment. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between any
Employer and the Participant. Such employment is hereby acknowledged
to be an "at will" employment relationship that can be terminated at
any time for any reason, with or without cause, unless expressly
provided in a written employment agreement. Nothing in this Plan
shall be deemed to give a Participant the right to be retained in the
service of any Employer, either as an Employee or a Director, or to
interfere with the right of any Employer to discipline or discharge
the Participant at any time.
16.5 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be
requested in order to facilitate the administration of the Plan and
the payments of benefits hereunder, including but not limited to
taking such physical examinations as the Committee may deem necessary.
16.6 Terms. Whenever any words are used herein in the masculine, they
shall be construed as though they were in the feminine in all cases
where they would so apply; and whenever any words are used herein in
the singular or in the plural, they shall be construed as though they
were used in the plural or the singular, as the case may be, in all
cases where they would so apply.
16.7 Captions. The captions of the articles, sections and paragraphs of
this Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
16.8 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the laws of the State of
California without regard to its conflicts of laws principles.
16.9 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the
address below:
Deferred Compensation Plan Committee
Western Digital Corporation
8105 Irvine Center Drive
Irvine, CA 92618
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing and
hand- delivered, or sent by mail, to the last known address of the
Participant.
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16.10 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns
and the Participant and the Participant's designated Beneficiaries.
16.11 Spouse's Interest. The interest in the benefits hereunder of a spouse
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
16.12 Validity. In case any provision of this Plan shall be illegal or
invalid for any reason, said illegality or invalidity shall not affect
the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal or invalid provision had never been
inserted herein.
16.13 Incompetent. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of
that person's property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the
care and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetency, incapacity or
guardianship, as it may deem appropriate prior to distribution of the
benefit. Any payment of a benefit shall be a payment for the account
of the Participant and the Participant's Beneficiary, as the case may
be, and shall be a complete discharge of any liability under the Plan
for such payment amount.
16.14 Court Order. The Committee is authorized to make any payments
directed by court order in any action in which the Plan or the
Committee has been named as a party.
16.15 Distribution in the Event of Taxation.
(a) General. If, for any reason, all or any portion of a
Participant's benefit under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee for a distribution of that portion of his or her
benefit that has become taxable. Upon the grant of such a
petition, which grant shall not be unreasonably withheld, a
Participant's Employer shall distribute to the Participant
immediately available funds in an amount equal to the taxable
portion of his or her benefit (which amount shall not exceed a
Participant's unpaid Account Balance under the Plan). If the
petition is granted, the tax liability distribution shall be
made within 90 days of the date when the Participant's
petition is granted. Such a distribution shall affect and
reduce the benefits to be paid under this Plan.
(b) Trust. If the Trust terminates in accordance with [Section
3.6(c) of the Trust] and benefits are distributed from the
Trust to a Participant in accordance with that Section, the
Participant's benefits under this Plan shall be reduced to the
extent of such distributions.
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16.16 Legal Fees To Enforce Rights After Change in Control. The Company is
aware that upon the occurrence of a Change in Control, the Board
(which might then be composed of new members) or a shareholder of the
Company, or of any successor corporation might then cause or attempt
to cause the Company or such successor to refuse to comply with its
obligations under the Plan and might cause or attempt to cause the
Company to institute, or may institute, litigation seeking to deny
Participants the benefits intended under the Plan. In these
circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should appear to any
Participant that the Company or any successor corporation has failed to
comply with any of its obligations under the Plan or any agreement
thereunder or, if the Company or any other person takes any action to
declare the Plan void or unenforceable or institutes any litigation or
other legal action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the Company
irrevocably authorizes such Participant to retain counsel of his or her
choice at the expense of the Company to represent such Participant in
connection with the initiation or defense or any litigation or other
legal action, whether by or against the Company or any director,
officer, shareholder or other person affiliated with the Company or any
successor thereto in any jurisdiction.
IN WITNESS WHEREOF, this instrument is executed this 20th day of
March, 1997.
By: WESTERN DIGITAL CORPORATION
----------------------------------
Name: Michael A. Cornelius
Title: Vice President
OA970550.073/14+
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