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EXHIBIT 10.32.3
FIFTH AMENDMENT TO THE
WESTERN DIGITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
This Fifth Amendment (the "Amendment") to the Western Digital
Corporation Retirement Savings and Profit Sharing Plan (the "Plan") is made this
13th day of November 1997 by Western Digital Corporation (the "Company"), the
sponsoring employer of the Plan.
WHEREAS, the terms of the Plan are set forth in an amended and restated
Plan document, dated June 23, 1995, as thereafter amended by the First Amendment
dated June 30, 1995, by the Second Amendment dated March 27, 1996, by the Third
Amendment dated January 9, 1997 and by the Fourth Amendment dated March 20,
1997; and
WHEREAS, the Company has reserved the right to amend the Plan by action
of its Board of Directors; and
WHEREAS, it is deemed desirable to amend the Plan in certain respects;
NOW, THEREFORE, the Plan is amended as follows:
1. Section 2.14 "Eligible Employee" shall be amended to read in its
entirety as follows:
2.14 ELIGIBLE EMPLOYEE
2.14.1 "Eligible Employee" shall mean any Employee of an
Employer who is paid from the Employer's United
States payroll, except as provided in Subsection
2.14.2 below.
2.14.2 The term "Eligible Employee" shall not include any
person in one or more of the following categories:
2.14.2.1 Any person who is covered by a collective
bargaining agreement to which an Employer is
a party, unless the collective bargaining
agreement provides for coverage under this
Plan.
2.14.2.2 Any non-resident alien who receives no
earned income (within the meaning of Code
Section 911(d)(2)) from Employer that
constitutes income from sources within the
United States (within the meaning of Code
Section 861(a)(3)).
2.14.2.3 Any person who is a "leased employee" within
the meaning of Code Section 414(n).
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Retirement Savings and Profit Sharing Plan
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2.14.2.4 Any person who is an "employee" within the
meaning of Code Section 401(c)(3).
2.14.2.5 Any person who is recorded on the books and
records of an Employer or an Affiliated
Company as an independent contractor or
consultant, a worker provided by a temporary
staffing agency, a temporary employee, or an
individual with respect to whom a written
agreement governing the relationship between
such person and an Employer or Affiliated
Company provides in substance that such
person shall not be an Eligible Employee
hereunder.
2.14.3 The preceding provisions of this Section 2.14 shall
be given effect notwithstanding any classification or
reclassification of a person as an employee or common
law employee of an Employer or Affiliated Company or
as a member of any other category of person not
excluded under the preceding provisions of this
Section 2.14 by reason of action taken by any tax, or
other governmental authority. In the event that a
person rendering services to an Employer or to an
Affiliated Company in an excluded category is
classified or reclassified by reason of action taken
by any tax, or other governmental authority, or by an
Employer or Affiliated Company, such individual shall
continue to be excluded under this Plan unless
specifically included hereunder by the terms of an
amendment to this Plan or by the terms of a written
instrument executed by such person and an Employer.
2.14.4 The categories of excluded persons described above in
this Section 2.14 are not mutually exclusive, it
being contemplated that certain categories described
above may include persons in one or more other
categories, with the result that an individual may be
excluded under more than one category set forth
herein.
This Amendment shall be effective as of June 23, 1995.
2. Section 2.15 "Employee" shall be amended to read in its entirety as
follows:
2.15 EMPLOYEE
2.15.1 "Employee" shall mean each person currently employed
in any capacity by an Employer or Affiliated Company,
any portion of whose Compensation paid by an Employer
or an Affiliated Company is subject to withholding
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Fifth Amendment to
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Retirement Savings and Profit Sharing Plan
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of income tax and/or for whom Social Security
contributions are made by an Employer or an
Affiliated Company.
2.15.2 "Employee" shall include a person deemed to be
employed by an Employer or an Affiliated Company,
pursuant to Code Section 414(n). Notwithstanding the
foregoing, if such leased employees constitute less
than twenty percent (20%) of the Company's non-highly
compensated work force within the meaning of Section
414(n)(5)(C)(ii) of the Code, the term "Employee"
shall not include those leased employees covered by a
plan described in Section 414(n)(5) of the Code
unless otherwise provided by the terms of the Plan.
2.15.3 Although Eligible Employees are the only class of
individuals eligible to participate in this Plan, the
term "Employee" is used to refer to persons employed
in a non-eligible Employee capacity as well as
Eligible Employee category. Thus, those provisions of
this Plan that are not limited to Eligible Employees,
such as those relating to certain service computation
rules, apply to both Eligible and non-Eligible
Employees.
This Amendment shall be effective as of June 23, 1995.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed by its duly authorized officer on this 13th day of November 1997.
WESTERN DIGITAL CORPORATION
By: ____________________________________
Michael A. Cornelius
Vice President, Law & Administration,
Secretary
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