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As filed with the Securities and Exchange Commission on January 11, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
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
(949) 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
AMENDED AND RESTATED
EMPLOYEE STOCK OPTION PLAN
(Full Title of Plan)
-------------------------
MICHAEL A. CORNELIUS
VICE PRESIDENT, LAW & ADMINISTRATION AND SECRETARY
WESTERN DIGITAL CORPORATION
8105 IRVINE CENTER DRIVE
IRVINE, CALIFORNIA 92618
(949) 932-5000
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
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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
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 10,000,000 $15.78125 $157,812,500 $43,871.88
par value $0.01 per share shares(3)
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers shares issued pursuant to antidilution
provisions set forth in the Amended and Restated Employee Stock Option Plan. In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Amended and Restated Employee Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon the average
of the high and low sale prices of the Company's Common Stock on the New York
Stock Exchange on January 5, 1999.
(3) Represents an increase in the number of shares authorized for
issuance under the Amended and Restated Employee Stock Option Plan.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Western Digital
Corporation, a Delaware corporation (the "Company"), to register an additional
10,000,000 shares of the Company's common stock, par value $0.01 per share,
issuable under the Company's Amended and Restated Employee Stock Option Plan,
and consists of only those items required by General Instruction E to Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions to Form S-8, Part I (Information Required
in the Section 10(a) Prospectus) is not filed as part of this Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In accordance with General Instruction E to Form S-8, the contents of
the Company's Registration Statement on Form S-8 (Registration No. 333-20359)
previously filed by the Company with the Securities and Exchange Commission on
January 24, 1997 is incorporated herein by reference and made a part hereof.
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 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
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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 Securities Exchange Act of 1934 or analogous
provisions of law, or (iii) committed certain acts of dishonesty. Absent the
indemnity agreement, 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 8. EXHIBITS.
Pursuant to General Instruction E, only those opinions and consents
required by Item 8 are provided, as follows.
Exhibit No. Description
- ----------- -----------
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
additional securities being registered.
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 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.
(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
Securities 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 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 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 January 11, 1999.
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 true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him and in his 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, with full powers 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 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.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ CHARLES A. HAGGERTY
- ---------------------------------- Chairman of the Board, President and January 11, 1999
Charles A. Haggerty Chief Executive Officer
(Principal Executive Officer)
/s/ DUSTON M. WILLIAMS
- ---------------------------------- Senior Vice President, Finance and January 11, 1999
Duston M. Williams Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ JAMES A. ABRAHAMSON
- ---------------------------------- Director January 11, 1999
James A. Abrahamson
/s/ PETER D. BEHRENDT
- ---------------------------------- Director January 11, 1999
Peter D. Behrendt
/s/ I.M. BOOTH
- ---------------------------------- Director January 11, 1999
I.M. Booth
/s/ IRWIN FEDERMAN
- ---------------------------------- Director January 11, 1999
Irwin Federman
/s/ ANDRE R. HORN
- ---------------------------------- Director January 11, 1999
Andre R. Horn
/s/ ANNE O. KRUEGER
- ---------------------------------- Director January 11, 1999
Anne O. Krueger
/s/ THOMAS E. PARDUN
- ---------------------------------- Director January 11, 1999
Thomas E. Pardun
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
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5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality
of the additional securities being registered.
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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EXHIBIT 5
GIBSON, DUNN & CRUTCHER LLP
LAWYERS
Jamboree Center
4 Park Plaza
Irvine, California 92614
January 8, 1999
(949) 451-3800 C 96182-00002
Western Digital Corporation
8105 Irvine Center Drive
Irvine, California 92618
Re: Registration Statement on Form S-8 Pursuant to General Instruction E
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement"), which is to be filed with
the Securities and Exchange Commission pursuant to General Instruction E of Form
S-8, to register an additional 10,000,000 shares of common stock, par value
$0.01 per share (the "Additional Securities"), of Western Digital Corporation, a
Delaware corporation (the "Company"), issuable under the Company's Amended and
Restated Employee Stock Option Plan (the "Plan").
For purposes of rendering this opinion, we have made such legal and
factual examinations as we have deemed necessary under the circumstances and, as
part of such examination, we have examined, among other things, originals and
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing, and assuming the
Registration Statement has become effective pursuant to the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), it is our opinion
that the Additional Securities will, when issued, delivered and paid for
pursuant to and in accordance with the Plan, be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
-----------------------------------
GIBSON, DUNN & CRUTCHER LLP
BWC/GCT
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 and related prospectus pertaining to the Western Digital
Corporation Amended and Restated Employee Stock Option Plan of our report dated
July 27, 1998, with respect to the consolidated balance sheets of Western
Digital Corporation as of June 27, 1998 and June 28, 1997, and the related
consolidated statements of operations, shareholders' equity and cash flows for
each of the years in the three-year period ended June 27, 1998, and the related
schedule, all of which are included in the Company's Annual Report on form 10-K
for the year ended June 27, 1998.
KPMG LLP
Orange County, California
January 6, 1999
