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As filed with the Securities and Exchange Commission on March 8, 2001
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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20511 LAKE FOREST DRIVE
LAKE FOREST, CALIFORNIA 92630-7741
(949) 672-7000
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
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WESTERN DIGITAL CORPORATION
AMENDED AND RESTATED STOCK OPTION PLAN FOR
NON-EMPLOYEE DIRECTORS
(Full Title of Plan)
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MICHAEL A. CORNELIUS
VICE PRESIDENT, LAW & ADMINISTRATION AND SECRETARY
WESTERN DIGITAL CORPORATION
20511 LAKE FOREST DRIVE
LAKE FOREST, CALIFORNIA 92630-7741
(949) 672-7000
(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(2) PRICE(2) FEE
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Common Stock,
par value $0.01 per share 1,000,000(3) $3.905 $3,905,000 $976.25
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(1) Each share of Common Stock includes a right to purchase one one-thousandth
of a share of Series A Junior Participating Preferred Stock pursuant to the
Rights Agreement between Western Digital Corporation and American Stock
Transfer and Trust Company, as Rights Agent, as amended. Pursuant to Rule
416(a), this Registration Statement also covers shares issued pursuant to
antidilution provisions set forth in the Amended and Restated Stock Option
Plan for Non-Employee Directors.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) and based on the average of the high
and the low price of the Common Stock of Western Digital Corporation as
reported on March 5, 2001 on the New York Stock Exchange.
(3) 2,600,000 shares are issuable under the Plan. In addition to the 1,000,000
shares registered hereby, 400,000 shares of Western Digital Corporation
Common Stock issuable under the Plan were previously registered under the
Registration Statement on Form S-8, Registration No. 33-9853, as filed with
the Securities and Exchange Commission on October 30, 1986 (which 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 Western
Digital Corporation's stock dividend of one share of each share outstanding
on May 20, 1997); 600,000 shares of Western Digital Corporation Common
Stock issuable under the Plan were previously registered under
Post-Effective Amendment No. 3 to the Registration Statement on Form S-8
(Registration No. 33-9853), as filed with the Securities and Exchange
Commission on September 28, 1988 (which includes 300,000 shares of Common
Stock registered on Post-Effective Amendment No. 3 to the Form S-8
Registration Statement and 300,000 shares of Common Stock registered on the
Post-Effective Amendment No. 3 to the Form S-8 Registration Statement
pursuant to Rule 416 in connection with Western Digital Corporation's stock
dividend of one share of each share outstanding on May 20, 1997); and
600,000 shares of Western Digital Corporation Common Stock issuable under
the Plan were previously registered under Post-Effective Amendment No. 4 to
the Registration Statement on Form S-8 (Registration No. 33-9853) as filed
with the Securities and Exchange Commission on February 6, 1990 (which
includes 300,000 shares of Common Stock registered on Post-Effective
Amendment No. 4 to the Form S-8 Registration Statement and 300,000 shares
of Common Stock registered on Post-Effective Amendment No. 4 to the Form
S-8 Registration Statement pursuant to Rule 416 in connection with Western
Digital Corporation's stock dividend of one share of 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"), and relates to an
additional 1,000,000 shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), issuable to the Company's non-employee directors
under the Company's Amended and Restated Stock Option Plan for Non-Employee
Directors (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 I 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 previously have been filed by the Company
with the Securities and Exchange Commission (the "Commission"), are incorporated
herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for fiscal year ended
June 30, 2000;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 29, 2000, and December 29, 2000;
(c) The Company's Current Reports on Form 8-K dated July 27, 2000,
September 6, 2000, October 26, 2000, January 25, 2001, and February
2, 2001;
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
33-54968), including any amendment or report filed for the purpose
of updating such description; and
(e) The description of the Company's Rights contained in the Company's
Registration Statement on Form 8-A (File No. 001-08703), including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment hereto that indicates that all securities
offered hereunder have been sold or that 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 that 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Western Digital Corporation is a Delaware corporation. 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 acted in good faith and in a manner he 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 conduct was
unlawful.
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
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 shall be indemnified against expenses
actually and reasonably incurred by him 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
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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 agreements, 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
agreements, 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 Securities Exchange Act of 1934 or analogous
provisions of law, or (iii) committed certain acts of dishonesty. Absent the
indemnity agreements, 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 stated in the policy.
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
to the Company's Quarterly Report on Form 10-Q for the quarter
ended October 2, 1999, as filed with the Securities and Exchange
Commission on November 16, 1999).
4.3 Rights Agreement between Western Digital Corporation and American
Stock Transfer and Trust Company, as Rights Agent (incorporated
by reference to the Company's Registration Statement on Form 8-A,
as filed with the Securities and Exchange Commission on November
19, 1998).
4.4 Amendment to Rights Agreement between Western Digital Corporation
and American Stock Transfer and Trust Company, as Rights Agent,
dated September 30, 1999 (incorporated by reference to the
Company's Annual Report on Form 10-K for fiscal year ended June
30, 2000, as filed with the Securities and Exchange Commission on
September 28, 2000).
4.5 Form of Common Stock Certificate (incorporated by reference to
the Company's Registration Statement on Form 8-B (File No.
001-08703), as filed with the Securities and Exchange Commission
on April 3, 1987).
4.6 Western Digital Corporation Amended and Restated Stock Option
Plan for Non-Employee Directors (incorporated by reference to the
Company's Definitive Revised Proxy Statement on Form 14A filed on
October 18, 2000).
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of KPMG 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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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;
(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in this 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by a 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 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 Lake Forest, State of California, on March 8, 2001.
WESTERN DIGITAL CORPORATION
By: /s/ Matthew E. Massengill
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Matthew E. Massengill
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
MATTHEW E. MASSENGILL 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 all that 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 and on the dates indicated.
NAME AND SIGNATURE TITLE DATE
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/s/ Matthew E. Massengill President and Chief Executive Officer March 8, 2001
- ------------------------------------ (Principal Executive
Matthew E. Massengill Officer) and Director
/s/ Teresa A. Hopp Senior Vice President, Finance March 8, 2001
- ------------------------------------ and Chief Financial Officer
Teresa A. Hopp (Principal Financial and Accounting
Officer)
/s/ Thomas E. Pardun Chairman of the Board March 8, 2001
- ------------------------------------
Thomas E. Pardun
/s/ Peter D. Behrendt Director March 3, 2001
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Peter D. Behrendt
/s/ I.M. Booth Director March 8, 2001
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I.M. Booth
/s/ Kathleen A. Cote Director March 1, 2001
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Kathleen A. Cote
Director March __, 2001
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Henry T. DeNero
Director March __, 2001
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Roger H. Moore
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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
to the Company's Quarterly Report on Form 10-Q for the quarter
ended October 2, 1999, as filed with the Securities and Exchange
Commission on November 16, 1999).
4.3 Rights Agreement between Western Digital Corporation and American
Stock Transfer and Trust Company, as Rights Agent (incorporated
by reference to the Company's Registration Statement on Form 8-A,
as filed with the Securities and Exchange Commission on November
19, 1998).
4.4 Amendment to Rights Agreement between Western Digital Corporation
and American Stock Transfer and Trust Company, as Rights Agent,
dated September 30, 1999 (incorporated by reference to the
Company's Annual Report on Form 10-K for fiscal year ended June
30, 2000, as filed with the Securities and Exchange Commission on
September 28, 2000).
4.5 Form of Common Stock Certificate (incorporated by reference to
the Company's Registration Statement on Form 8-B (File No.
001-08703), as filed with the Securities and Exchange Commission
on April 3, 1987).
4.6 Western Digital Corporation Amended and Restated Stock Option
Plan for Non-Employee Directors (incorporated by reference to the
Company's Definitive Revised Proxy Statement on Form 14A filed on
October 18, 2000).
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of KPMG 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).