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EXHIBIT 10.32.6
EIGHTH AMENDMENT TO THE
WESTERN DIGITAL CORPORATION
SAVINGS AND PROFIT SHARING PLAN
This Eighth Amendment (the "Amendment") to the Western Digital
Corporation Savings and Profit Sharing Plan (the "Plan") is made this 6th day of
April, 2001 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; the Second Amendment dated March 27, 1996; the Third
Amendment dated January 9, 1997; the Fourth Amendment dated March 20, 1997; the
Fifth Amendment dated November 13, 1997; the Sixth Amendment dated January 27,
2000; and the Seventh Amendment dated March 30, 2000; and
WHEREAS, Section 17.1 of the Plan authorizes the Company to amend the
Plan by action of its Board of Directors; and
WHEREAS, contemporaneous with the execution hereof, the Company, Western
Digital Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of
the Company ("Holdings") and WD Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Holdings ("Merger Sub"), are entering into an
Agreement and Plan of Merger to Form Holding Company, dated April 6, 2001 (the
"Merger Agreement"), pursuant to which (i) Merger Sub will be merged into the
Company, (ii) all of the Company's outstanding capital stock will be converted
on a share for share basis into capital stock of Holdings, (iii) the
stockholders of the Company will become stockholders of Holdings, and (iv) the
Company will become a wholly-owned subsidiary of Holdings (the "Merger"); and
WHEREAS, by virtue of the Merger, all of the Company's outstanding
capital stock will be converted, on a share for share basis, into capital stock
of Holdings, and as a result, each stockholder of the Company will become the
owner of an identical number of shares of capital stock of Holdings; and
WHEREAS, in connection with the Merger, Holdings will change its name to
"Western Digital Corporation" and the Company will change its name to "Western
Digital Technologies, Inc."; and
WHEREAS, the Company desires to assign sponsorship of the Plan, its
appointment as Plan administrator under the Plan, and all other Plan related
rights and obligations to Holdings, and Holdings is desirous of accepting such
assignment; and
NOW, THEREFORE, the Plan is amended as follows:
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1. The Company hereby assigns to Holdings, and Holdings hereby assumes
sponsorship of the Plan, appointment as Plan administrator, and all of the other
rights and obligations of the Company under the Plan.
2. Section 7.4 of the Plan is hereby amended by deleting such section in
its entirety and inserting in lieu thereof the following:
7.4. SECURITIES TRANSACTIONS. The Trustee may acquire Stock in the open
market or from the Company or any other person, including a party in interest.
No commission will be paid in connection with the Trustee's acquisition of Stock
from a party in interest. Neither the Company, nor any Employer, nor the
Committee, nor any Trustee have any responsibility or duty to time any
transaction involving Stock in order to anticipate market conditions or changes
in Stock value. Neither the Company, nor any Employer, nor the Committee, nor
any Trustee have any responsibility or duty to sell Stock held in the Trust Fund
in order to maximize return or minimize loss.
3. The first sentence of Subsection 7.6.4 of the Plan is hereby amended
by deleting such sentence and inserting in lieu thereof the following:
In the event a court of competent jurisdiction shall issue an opinion or
order to the Plan, the Company, any Employer, or the Trustee, which
shall, in the opinion of counsel to the Company, the Employer or the
Trustee, invalidate under ERISA, in all circumstances or in any
particular circumstances, any provision or provisions of this Section
regarding the manner in which Stock held in the Trust shall be voted or
cause any such provision or provisions to conflict with ERISA, then,
upon notice thereof to the Company, the Employer, or the Trustee, as the
case may be, such invalid or conflicting provisions of this Section
shall be given no further force or effect.
4. The first sentence of Subsection 7.11.4 of the Plan is hereby amended
by deleting such sentence and inserting in lieu thereof the following:
With respect to any Offer received by the Trustee, the Trustee shall
distribute, at the Employer's expense, copies of all relevant material,
including, but not limited to, material filed with the Securities and
Exchange Commission with such Offer or regarding such Offer, and shall
seek confidential written instructions from each Participant who is
entitled to respond to such Offer pursuant to Subsections 7.11.1, 7.11.2
or 7.11.3.
5. The last sentence of Subsection 7.11.5 of the Plan is hereby amended
by deleting such sentence and inserting in lieu thereof the following:
The instruction form shall state that: (i) if the Participant fails to
return an instruction form to the Trustee by the indicated deadline, the
Stock with respect to which he is entitled to give instructions will not
be sold, exchanged or transferred pursuant to such Offer, (ii) the
Participant will be a named fiduciary (as described
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in Subsection 7.11.10 below) with respect to all shares for which he is
entitled to give instructions, and (iii) the Employer acknowledges and
agrees to honor the confidentiality of the Participant's instructions to
the Trustee.
6. The first sentence of Subsection 7.11.7 of the Plan is hereby amended
by deleting such sentence and inserting in lieu thereof the following:
The Employer shall furnish former Participants who have received
distributions of Stock so recently as to not be shareholders of record
with the information given to Participants pursuant to Subsections
7.11.4, 7.11.5, and 7.11.6 of this Section.
7. Subsection 7.11.9 of the Plan is hereby amended by deleting such
section and inserting in lieu thereof the following:
7.11.9. The Trustee shall not reveal or release a Participant's
instructions to the Company or to any Employer, its officers, directors,
employees, or representatives. If some but not all Stock held by the
Trust is sold, exchanged, or transferred pursuant to an Offer, the
Employer, with the Trustee's cooperation, shall take such action as is
necessary to maintain the confidentiality of Participant's records,
including, without limitation, establishment of a security system and
procedures which restrict access to Participant records and retention of
an independent agent to maintain such records. If an independent
record-keeping agent is retained, such agent must agree, as a condition
of its retention by the Employer, not to disclose the composition of any
Participant Accounts to the Company, the Employer, its officers,
directors, employees, or representatives. The Company and the Employer
acknowledge and agree to honor the confidentiality of Participants'
instructions to the Trustee.
8. The first sentence of Subsection 7.11.12 of the Plan is hereby
amended by deleting such sentence and inserting in lieu thereof the following:
In the event a court of competent jurisdiction shall issue to the Plan,
the Company, any Employer, or the Trustee an opinion or order, which
shall, in the opinion of counsel to the Company, the Employer or the
Trustee, invalidate, in all circumstances or in any particular
circumstances, any provision or provisions of this Section regarding the
determination to be made as to whether or not Stock held by the Trustee
shall be sold, exchanged or transferred pursuant to an Offer or cause
any such provision or provisions to conflict with securities laws, then,
upon notice thereof to the Company, the Employer or the Trustee, as the
case may be, such invalid or conflicting provisions of this Section
shall be given no further force or effect.
9. This Amendment shall be effective as of the consummation of the
Merger.
10. Except as expressly provided herein above, the provisions of the
Plan shall continue in full force and effect as set forth herein.
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IN WITNESS WHEREOF, the Company and Holdings have each caused this
Eighth Amendment to the Plan to be executed by its duly authorized officer on
this 6th day of April, 2001.
WESTERN DIGITAL CORPORATION
By: /s/ MICHAEL CORNELIUS
Name: Michael Cornelius
Title:
WESTERN DIGITAL HOLDINGS, INC.
By: /s/ MICHAEL CORNELIUS
Name: Michael Cornelius
Title:
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