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EXHIBIT 10.21.1
AMENDED AND RESTATED WESTERN DIGITAL CORPORATION
NON-EMPLOYEE DIRECTORS STOCK-FOR-FEES PLAN
This plan was implemented in 1992, and was amended and restated
effective as of January 9, 1997 to require directors to take half their annual
retainer fee in stock, permit deferrals of cash or stock under the plan, and
make certain other changes to conform the plan to the new version of Rule 16b-3
and ease administration.
1. Purpose. The purposes of this Western Digital Corporation
Non-Employee Director Stock-For-Fees Plan (the "PLAN") are to advance the
interests of Western Digital Corporation (the "COMPANY") and its stockholders
by increasing ownership by the Company's non-employee directors of the
Company's Common Stock, thereby aligning their interests more closely with the
interests of the Company's other stockholders, and to make available to the
Company the cash that would otherwise have been paid to non-employee directors
receiving Common Stock in lieu of fees hereunder.
2. Administration. The Plan shall be administered by the
Company, which shall have the power to construe the Plan, to resolve all
questions arising under the Plan, to adopt and amend such rules and regulations
for the administration of the Plan as it may deem desirable, and otherwise to
carry out the terms of the Plan, but only to the extent not contrary to the
express provisions of the Plan. The determinations, interpretations, and other
actions of the Company of or under the Plan or with respect to any Common Stock
granted pursuant to the Plan shall be final and binding for all purposes and on
all persons. Neither the Company nor any officer or employee thereof shall be
liable for any action or determination taken or made under the Plan in good
faith. Notwithstanding the foregoing, the Company shall have no authority or
discretion as to the persons who will receive Common Stock granted pursuant to
the Plan, the number of shares of Common Stock to be issued under the Plan, the
time at which such grants are made, the number of shares of Common Stock to be
granted at any particular time, or any other matters that are specifically
governed by the provisions of the Plan.
3. Participation in the Plan. Directors of the Company who are
not employees of the Company or any subsidiary of the Company ("ELIGIBLE
DIRECTORS") shall be eligible to participate in the Plan. Each Eligible
Director shall, if required by the Company, enter into an agreement with the
Company in such form as the Company shall determine consistent with the
provisions of the Plan for purposes of implementing the Plan or effecting its
purposes. In the event of any inconsistency between the provisions of the Plan
and any such agreement, the provisions of the Plan shall govern.
4. Stock Subject to the Plan.
(a) Number of Shares. The shares that may be issued
under the Plan shall be authorized and unissued shares or treasury shares of
the Company's Common Stock (the "COMMON STOCK"). The maximum aggregate number
of shares that may be issued under the Plan shall be two hundred thousand
(200,000), subject to adjustment upon changes in capitalization of the Company
as provided in Section 4(b). The maximum aggregate number of shares issuable
under the Plan may be increased from time to time by approval of the Company's
Board of Directors, and by the stockholders of the Company if stockholder
approval is required pursuant to the applicable rules of any stock exchange,
or, in the opinion of the Company's counsel, any other law or regulation
binding upon the Company.
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(b) Adjustments. If the Company shall at any time
increase or decrease the number of its issued and outstanding shares of Common
Stock (whether by reason of reorganization, merger, consolidation,
recapitalization, stock dividend, stock split, combination of shares, exchange
of shares, change in corporate structure, or otherwise), then the number of
shares of Common Stock still available for issue hereunder shall be increased
or decreased appropriately and proportionately.
5. Mandatory Stock Payments and Elections. For each calendar
year beginning with 1997, one-half of the annual retainer fee payable to each
Eligible Director shall be paid in the form of Common Stock rather than cash.
Each Eligible Director may make an "ELECTION" to receive Common Stock in lieu
of any or all of (i) the remaining half of the annual retainer fee otherwise
payable to him or her in cash for that calendar year, and/or (ii) the meeting
attendance fees otherwise payable to him or her in cash for that calendar year.
Such Election for any calendar year must be in writing and must be delivered to
the Secretary of the Company not later than the end of the immediately
preceding calendar year. In addition, newly elected or appointed Eligible
Directors shall make an interim Election as of the date they join the board,
which interim Election shall govern until the immediately ensuing calendar
year. Separate Elections must be made for each calendar year; if an Eligible
Director does not make a written Election for any particular calendar year,
then such Eligible Director shall be deemed to have elected to receive all
meeting fees and half of his or her retainer fee for that calendar year in
cash.
6. Issuance of Common Stock.
(a) Timing and Amounts of Issuances.
(i) Common Stock issuable to an Eligible Director in
lieu of annual retainer or meeting fees shall be issued not later than ten days
after the date such annual retainer or meeting fees, as the case may be, would
have been paid if paid in cash.
(ii) The number of shares of Common Stock issuable
in lieu of cash annual retainer fees (whether or not deferred) shall be
determined by dividing the amount of cash fees being replaced by Common Stock
by the Fair Market Value (as defined below) of the Common Stock on the first
trading day of the calendar year for which the annual retainer is being paid
(or January 9 in the case of 1997) or, in the case of an annual retainer being
paid to a newly appointed or elected Eligible Director for a partial year, on
the date such Eligible Director joins the board.
(iii) The number of shares of Common Stock issuable
in lieu of cash meeting fees whether or not deferred) shall be determined by
dividing the amount of cash fees being replaced by Common Stock by the Fair
Market Value of the Common Stock on the date of the meeting for which the fee
is paid.
(b) Fractional of Shares. No fractional shares shall be
issued under the Plan. The portion of annual retainer or meeting fees that
would be paid in Common Stock but for the proscription on fractional shares
shall be paid in cash along with any portion of the fee (or the next subsequent
fee) that the Eligible Director has elected to receive in cash. For directors
electing no cash for a particular calendar year, fractional share equivalent
cash balances shall be held by the Company until the end of that calendar year
and then distributed in cash to the Eligible Director without interest.
(c) Fair Market Value. For the purposes of the Plan, the
"FAIR MARKET VALUE" of the Common Stock as of any issuance or deferral date
shall be the closing price of the Common Stock on the New York Stock Exchange
(or another national stock exchange or the
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NASDAQ National Market System, if the Common Stock trades thereon but not on
the NYSE) as of such date (or, if no such shares were traded on such date, as
of the next preceding day on which there was such a trade, provided that the
closing price on such preceding date is not less than 100% of the fair market
value of the Common Stock, as determined in good faith by the Company, on the
date of issuance). If at any time the Common Stock is no longer traded on a
national stock exchange or the NASDAQ National Market System, the Fair Market
Value of the Common Stock as of any issuance date shall be as determined by the
Company in good faith in the exercise of its reasonable discretion.
(d) Issuance of Certificates. As promptly as practicable
following each issuance of Common Stock hereunder, the Company shall issue to
the recipient Eligible Director a stock certificate or certificates registered
in his or her name representing the number of shares of Common Stock issued.
7. Deferral.
(a) Election to Defer. An Eligible Director may elect to
defer the receipt of any cash or stock annual retainer or meeting fees payable
during the period to which an Election applies. Any such deferral election by
an Eligible Director shall specify whether the fees to be deferred are fees
that the Eligible Director is required or has elected to receive in Common
Stock, and shall be made and take effect at the times specified in the
Company's Deferred Compensation Plan (the "DEFERRED COMPENSATION PLAN"). The
deferral shall not change the form (cash versus Common Stock) in which the fee
is to be paid at the end of the deferral period, notwithstanding the fact that
during the deferral period fees ultimately payable in Common Stock may be
general unsecured obligations of the Company to the Eligible Director.
(b) Premium. The Company shall pay a 15% premium to each
Eligible Director who elects to defer annual retainer or meeting fees to be
received in Common Stock. The number of shares of Common Stock deferred and
the premium thereon shall be calculated by multiplying the amount of cash fees
being replaced by Common Stock and deferred by 1.15, and then dividing that
product by the Fair Market Value of the Common Stock on the date set forth in
Section 6(a)(ii) or Section 6(a)(iii) for annual retainer or meeting fees,
respectively. Any premium Common Stock shall be subject to the same deferral
election, and deliverable to the Eligible Director on the same terms, as the
Common Stock upon which the premium is paid.
(c) Plan Shares. All shares issued or issuable under the
Plan, including deferred shares and shares issuable as premiums on deferrals,
shall be deducted from the shares available under the Plan at the time first
issued or deferred, provided that shares deferred and not ultimately issued and
delivered to the Eligible Director shall be returned to the pool of available
shares under the Plan.
(d) Deferred Compensation Plan. Deferral of Eligible
Directors' fees, whether payable in cash or Common Stock and including any
premiums, shall be administered pursuant to the Deferred Compensation Plan.
8. Securities Laws.
(a) Investment Representations. The Company may require
any Eligible Director to whom an issuance of securities is made or a deferred
delivery obligation is undertaken as a condition of receiving securities
pursuant to such issuance or obligation to give written assurances in substance
and form satisfactory to the Company and its counsel to the effect the such
person is acquiring the securities for his own account for investment and not
with any
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present intention of selling or otherwise distributing the same in violation of
applicable securities laws, and to such other effects as the Company deems
necessary or appropriate to comply with Federal and applicable state securities
laws.
(b) Listing, Registration, and Qualification. Anything
to the contrary herein notwithstanding, each issuance of securities shall be
subject to the requirement that, if at any time the Company or its counsel
shall determine that the listing, registration, or qualification of the
securities subject to such issuance upon any securities exchange or under any
state or federal law, or the consent or approval of any governmental or
regulatory body, is necessary or advisable as a condition of, or in connection
with, such issuance of securities, such issuance shall not occur in whole or in
part unless such listing, registration, qualification, consent, or approval
shall have been effected or obtained on conditions acceptable to the Company.
Nothing herein shall be deemed to require the Company to apply for or to obtain
such listing, registration, or qualification.
(c) Restrictions on Transfer. The securities issued
under the Plan shall be restricted by the Company as to transfer unless the
grants are made under a registration statement that is effective under the
Securities Act of 1933, as amended, or unless the Company receives an opinion
of counsel satisfactory to the Company to the effect that registration under
state or federal securities laws is not required with respect to such transfer.
9. Withholding Taxes. Whenever shares of Common Stock are to be
issued under the Plan, the Company shall have the right prior to the delivery
of any certificate or certificates for such shares to require the recipient to
remit to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements attributable to the issuance. In the absence of
payment by a grantee to the Company of an amount sufficient to satisfy such
withholding taxes, or an alternative arrangement with the grantee that is
satisfactory to the Company, the Company may make such provisions as it deems
appropriate for the withholding of any such taxes which the Company determines
it is required to withhold.
10. Amendment of the Plan. The Board of Directors of the Company
may suspend or terminate the Plan or any portion thereof at any time, and may
amend the Plan from time-to-time in any respect the Board of Directors may deem
to be in the best interests of the Company; provided, however, that no such
amendment shall be effective without approval of the stockholders of the
Company if stockholder approval of the amendment is then required pursuant to
the applicable rules of any securities exchange, or, in the opinion of the
Company's counsel, any other law or regulation binding on the Company.
11. Effective Date and Duration of the Plan. The Plan shall,
subject to approval by the Company's stockholders at the Company's 1992 Annual
Meeting, be effective January 1, 1993. The Plan shall terminate at 11:59 p.m.
on December 31, 2002, unless sooner terminated by action of the Board of
Directors. Elections may be made under the Plan prior to its effectiveness,
but no issuances under the Plan shall be made before its effectiveness or after
its termination.
12. Governing Laws. The Plan and all rights and obligations under
the Plan shall be construed in accordance with and governed by the laws of the
State of California, excluding its conflicts of laws principles.
OA921120.009
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