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As filed with the Securities and Exchange Commission on December 3, 1997
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WESTERN DIGITAL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 95-2647125
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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8105 IRVINE CENTER DRIVE
IRVINE, CALIFORNIA 92618
(714) 932-5000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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WESTERN DIGITAL CORPORATION
DEFERRED COMPENSATION PLAN
(Full title of plan)
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MICHAEL A. CORNELIUS
VICE PRESIDENT LAW & ADMINISTRATION AND SECRETARY
WESTERN DIGITAL CORPORATION
8105 IRVINE CENTER DRIVE
IRVINE, CALIFORNIA 92618
(714) 932-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE PRICE (2) FEE
- -------------------------------- --------------- --------------- -------------- -------------
WESTERN DIGITAL CORPORATION $40,000,000 100% $40,000,000 $11,800
DEFERRED COMPENSATION PLAN
OBLIGATIONS (3)
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(1) The Western Digital Corporation Deferred Compensation Plan Obligations are
unsecured obligations of Western Digital Corporation to pay deferred
compensation in the future in accordance with the terms of the Western Digital
Corporation Deferred Compensation Plan.
(2) Estimated solely for purposes of calculating registration fees.
(3) Certain amounts granted to participants under the Company's Non-Employee
Directors Stock-For-Fees Plan and deferred pursuant to the Company's Deferred
Compensation Plan shall be distributed in the form of Company Common Stock.
400,000 shares of Common Stock were previously registered on the Company's Form
S-8 Registration Statement No. 33-60168, filed with the Securities and Exchange
Commission on March 29, 1993, with respect to the Company's Non-Employee
Directors Stock-For-Fees Plan (includes 200,000 shares of Common Stock
registered on the Form S-8 Registration Statement and 200,000 shares of Common
Stock registered on the Form S-8 Registration Statement pursuant to Rule 416 in
connection with the Company's stock dividend of one share for each share
outstanding on May 20, 1997).
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Western Digital
Corporation, a Delaware corporation (the "COMPANY"), relating to $40,000,000 of
unsecured obligations of the Company to pay deferred compensation in the future
(the "OBLIGATIONS") in accordance with the terms of the Company's Deferred
Compensation Plan (the "PLAN").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part 1 of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed previously by the Company
with the Securities and Exchange Commission, are incorporated herein by
reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the year ended June 28,
1997; and
(ii) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 27, 1997.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment hereto which indicates that all securities offered
hereunder have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
For purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
$40,000,000 of Obligations are being registered under this Registration
Statement to be offered to a select group of management and highly compensated
employees and directors of the Company and any of its subsidiaries that have
been selected by the Board of Directors of the Company (the "BOARD") to
participate in the Plan and have adopted the Plan as a sponsor. The Obligations
are general unsecured and unfunded obligations of the Company to pay deferred
compensation in the future in accordance with the terms of the Plan.
The amount of compensation deferred by each participant in the Plan is
determined in accordance with the Plan based upon elections by each participant.
To participate in the Plan, participants must defer a minimum of $2,000 annually
and may elect to defer, on an annual basis, up to a maximum of 100% of such
participant's base annual salary, annual bonus and director's fees ("ANNUAL
DEFERRAL AMOUNT"). Obligations will consist of an amount equal to (A) each
participant's "DEFERRAL ACCOUNT" under the Plan which includes (i) the sum of
the participant's Annual Deferral Amounts plus (ii) amounts credited to the
participant's Deferral Account based on the participant's selection from
measurement fund alternatives in accordance with and subject to the rules and
procedures established from time to time by the Board or a committee appointed
by the Board (the "COMMITTEE"), less (iii) all distributions made to the
participant or his or her beneficiary pursuant to the Plan that relate to the
participant's Deferral Account and (B) each participant's "COMPANY CONTRIBUTION
ACCOUNT" under the Plan which includes (i) the sum of any credits made by the
Board, in its sole discretion, as of the last day of the fiscal year of the Plan
to such account plus (ii) amounts credited to the participant's Company
Contribution Account based on the participant's selection from measurement fund
alternatives in accordance with and subject to the rules and procedures
established from time to time by the Board or the Committee, less (iii) all
distributions made to the participant or his or her beneficiary pursuant to the
Plan that relate to the participant's Company Contribution Account.
The following portions of a participant's Deferral Account and Company
Contribution Account shall be distributed in the form of Company Common Stock,
as a lump sum at the time distribution to the participant is to commence: (i)
that portion of a participant's Deferral Account balance attributable to his or
her deferral of directors' fees paid in the form of shares of Company Common
Stock and granted to non-employee directors pursuant to the terms of the Western
Digital Corporation Non-Employee Directors Stock-For-Fees Plan (the "DIRECTORS'
PLAN") and (ii) that portion of a participant's Company Contribution Account
balance attributable to the 15% premium award granted to non-employee directors
as an annual Company Contribution Amount each year pursuant to the Directors'
Plan, which amount shall be credited at such times as the Company shall
determine.
Participants may receive distributions from their account balances under the
following circumstances:
1. Subject to certain limitations, a participant may elect to receive a
future "SHORT-TERM PAYOUT" from the Plan with respect to the Annual Deferral
Amount. The Short-Term Payout shall be a lump sum payment in an amount that is
equal to the Annual Deferral Amount for the year for which the Short-Term Payout
was elected, plus amounts credited or debited, if any. Subject to the other
terms and conditions of the Plan, each Short-Term Payout elected shall be paid
within 60 days of the first day of the fiscal year of the Plan (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.
2. If a participant experiences an extraordinary and unforeseeable
financial emergency that arises as a result of events beyond the control of the
participant and that places an immediate and heavy financial need that cannot be
relieved by certain other resources of the participant, as specified in the
Plan, the participant may petition the Board or the Committee to (a) suspend any
deferrals required to be made by the participant or (b) receive a partial or
full payout from the Plan, provided that any payout shall not exceed the lesser
of the participant's vested account balance or the amount needed to satisfy the
financial emergency. If, subject to the sole discretion of the Board or 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.
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3. In connection with the commencement of participation in the Plan, a
participant shall elect to receive retirement benefits in a lump sum or pursuant
to an annual installment of 5, 10, 15 or 20 years. The participant may change
his or her election to an allowable alternative payout period, provided the
change in election is submitted at least three years prior to the participant's
retirement and is accepted by the Board, or the Committee, in its sole
discretion. 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 beneficiary (a) over the remaining
period or (b) in a single lump sum if requested by the beneficiary and allowed
in the sole discretion of the Board or the Committee. If the participant dies
before he or she retires, the participant's beneficiary shall receive an amount
equal to the participant's vested account balance.
4. A participant who is determined by the Board or the Committee to be
suffering from a disability, shall be excused thereafter from making deferrals
committed pursuant to his or her election for the Plan Year during which the
participant first suffers the disability.
5. If a participant's employment with or service as a director of the
Company and/or any of its subsidiaries participating in the Plan is terminated
prior to the participant's retirement, death or disability, the participant
shall receive an amount equal to the participant's vested account balance, which
amount shall be paid in a lump sum within 60 days after the termination of
employment or service as a director.
6. A participant may elect, at any time, to withdraw all of his or her
vested account balance, subject to a 10% withdrawal penalty.
The Obligations are unassignable and non-transferable and neither a
participant nor any other person shall have any right to commute, sell, assign,
transfer, pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate, alienate or convey in advance of actual receipt, the amounts, if
any, payable under the Plan.
An irrevocable trust has been established to pay the Obligations. The
trustee of the trust shall be authorized, upon written instructions from the
Board, the Committee or an investment manager appointed by the Committee, to
invest and reinvest the assets of the trust in accordance with the trust
agreement.
The Plan is administered by the Board or the Committee, which has the
power to make, amend, interpret and enforce all appropriate rules and
regulations for the administration of the Plan and to resolve all questions
arising under the Plan.
The Company may terminate the Plan at any time and may amend the Plan
from time to time by action of the Board; provided, however, that no such
amendment shall be effective to decrease or restrict the value of a
participant's vested account balance in existence at the time the amendment is
made.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
(the "GCL") provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
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Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards to
those set forth above, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
actually and reasonably incurred by him or her in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against such officer
or director and incurred by him or her in any such capacity or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liabilities under Section 145.
As permitted by Section 102(b)(7) of the GCL the Company's Certificate
of Incorporation provides that a director shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director. However, such provision does not eliminate or limit the liability of a
director for acts or omissions not in good faith or for breaching his or her
duty of loyalty, engaging in intentional misconduct or knowingly violating the
law, paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
breach of fiduciary duty.
The Company's Bylaws require that directors and officers be indemnified
to the maximum extent permitted by Delaware law.
The Company may, from time to time, enter into indemnity agreements with
each of its directors and officers requiring that the Company pay on behalf of
each director and officer party thereto any amount that he or she is or becomes
legally obligated to pay because of any claim or claims made against him or her
because of any act or omission or neglect or breach of duty including any actual
or alleged error or misstatement or misleading statement, which he or she
commits or suffers while acting in his or her capacity as a director and/or
officer of the Company and solely because of his or her being a director and/or
officer. Under the GCL, absent such an indemnity agreement, indemnification of a
director or officer is discretionary rather than mandatory (except in the case
of a proceeding in which a director or officer is successful on the merits).
Consistent with the Company's Bylaw provision on the subject, the indemnity
agreements require the Company to make prompt payment of defense and
investigation costs and expenses at the request of the director or officer in
advance of indemnification, provided that the recipient undertakes to repay the
amounts if it is ultimately determined that he or she is not entitled to
indemnification for such expense and provided further that such advance shall
not be made if it is determined that the director or officer acted in bad faith
or deliberately breached his or her duty to the Company or its stockholders and,
as a result, it is more likely than not that it will ultimately be determined
that he or she is not entitled to indemnification under the terms of the
indemnity agreement. The indemnity agreements make the advance of litigation
expenses mandatory absent a special determination to the contrary, whereas under
the GCL absent such an indemnity agreement, such advance would be discretionary.
Under the indemnity agreement, the Company would not be required to pay or
reimburse the director or officer for his or her expenses in seeking
indemnification recovery against the Company. By the terms of the indemnity
agreement, its benefits are not available if the director or officer has other
indemnification or insurance coverage for the subject claim or, with respect to
the matters giving rise to the claim, (i) received a personal benefit, (ii)
violated Section 16(b) of the Exchange Act or analogous provisions of law, or
(iii) committed certain acts of dishonesty. Absent the indemnity agreement,
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indemnification that might be made available to directors and officers could be
changed by amendments to the Company's Certificate of Incorporation or Bylaws.
The Company has a policy of directors' liability insurance which insures
the directors and officers against the cost of defense, settlement or payment of
a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.4.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 29,
1997, as filed with the Securities and Exchange Commission on May
9, 1997).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2.2
to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 29, 1997, as filed with the Securities and Exchange
Commission on May 9, 1997).
4.3 Western Digital Corporation Deferred Compensation Plan, as
amended and restated effective January 1, 1998.
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto).
24 Power of Attorney (contained on signature page hereto).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for a filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on
December 3, 1997.
WESTERN DIGITAL CORPORATION
By: /s/ CHARLES A. HAGGERTY
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Charles A. Haggerty
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
CHARLES A. HAGGERTY and MICHAEL A. CORNELIUS his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as full to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the date indicated.
SIGNATURE TITLE DATE
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/s/ CHARLES A. HAGGERTY
- ----------------------- Chairman of the Board, President and December 3, 1997
Charles A. Haggerty Chief Executive Officer (Principal
Executive Officer)
/s/ DUSTON M. WILLIAMS
- ----------------------- Senior Vice President, Finance and December 3, 1997
Duston M. Williams Chief Financial Officer (Principal
Financial and Accounting Officer)
/s/ JAMES A. ABRAHAMSON
- ----------------------- Director
James A. Abrahamson December 3, 1997
/s/ PETER D. BEHRENDT
- ----------------------- Director
Peter D. Behrendt December 3, 1997
/s/ I.M. BOOTH
- ----------------------- Director
I.M. Booth December 3, 1997
/s/ IRWIN FEDERMAN
- ----------------------- Director
Irwin Federman December 3, 1997
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/s/ ANDRE R. HORN
- ---------------------- Director
Andre R. Horn December 3, 1997
- ---------------------- Director
Anne O. Krueger __________, 1997
- ---------------------- Director
Thomas E. Pardun __________, 1997
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EXHIBIT INDEX
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.4.1 to
the Company's Quarterly Report on Form 10-Q for the
quarter ended March 29, 1997, as filed with the
Securities and Exchange Commission on May 9, 1997).
4.2 Bylaws of the Company (incorporated by reference to
Exhibit 3.2.2 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 29, 1997, as filed with
the Securities and Exchange Commission on May 9, 1997).
4.3 Western Digital Corporation Deferred Compensation Plan,
as amended and restated effective January 1, 1998.
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in
Exhibit 5 hereto).
24 Power of Attorney (contained on signature page hereto).
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