Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MAXTOR CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 77-0123732
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(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
211 River Oaks Parkway
San Jose, California 95134
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(Address of principal executive offices) (Zip code)
MAXTOR CORPORATION
1995 STOCK OPTION PLAN
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(Full title of the plan)
Glenn H. Stevens
Vice President and General Counsel
MAXTOR CORPORATION
211 River Oaks Parkway
San Jose, California 95134
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408)
432-1700
This registration statement shall hereafter become effective in
accordance with Rule 462 promulgated under the Securities Act of
1933, as amended.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price (1) fee (1)
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Common Stock 2,000,000 $3.78125 $6,750,000.00 $2607.76
($0.01 par shares
value)
(1) Estimated pursuant to Rule 457 solely for purposes of
calculating the registration fee. The price is based upon the
average of the high and low prices of the Common Stock on November 7,
1994, as reported on the National Association of Securities Dealers
Automated Quotations system.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Maxtor Corporation (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K, filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), containing audited financial
statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-B, filed pursuant to
Section 12 of the Exchange Act, as filed with the Commission on
December 23, 1986, including any amendment or report filed for the
purpose of updating such description.
(d) The description of the Company's Common Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A as
filed with the Commission on February 16, 1988.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this registration statement
which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to
be incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such documents.
Item 4. Description of Securities
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The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Legal Opinion. The validity of the shares of Common Stock to be
offered hereunder has been passed upon for the Company by Gray Cary
Ware & Freidenrich, A Professional Corporation. Gregory M. Gallo, an
attorney and a member with Gray Cary Ware & Freidenrich, A
Professional Corporation, and its predecessor since 1973, has been a
director of the Company since December 1987. As of November 7, 1994,
attorneys of Gray Cary Ware & Freidenrich, a Professional
Corporation, owned 63,500 shares (including shares subject to
options) of the common stock of the Company.
Item 6. Indemnification of Directors and Officers
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Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for
monetary damages for breach or alleged breach of the directors'
fiduciary "duty of care." While the relevant statute does not change
directors' duty of care, it enables corporations to limit available
relief to equitable remedies such as injunction or rescission. The
statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or
knowing violations of law, illegal payment of dividends or approval
of any transaction from which a director derives an improper personal
benefit.
The Certificate of Incorporation and the By-Laws of the Company
provide for mandatory indemnification of its officers, directors and
key employees to the full extent permitted by Section 145 of the
General Corporation Law of the State of Delaware. The Company also
has entered into indemnification agreements with its officers and
directors which provide, among other things, mandatory
indemnification of such individuals in situations in which
indemnification is only permissive under Section 145. Section 145 of
the General Corporation Law of the State of Delaware provides for
indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended (the "Securities Act").
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) Rule 415 Offering
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 registration statement is on Form S-3 or Form S-8, and
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 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) Filing incorporating subsequent Exchange Act documents by
reference
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 Section
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 Exchange Act) 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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arises 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 Securities and Exchange 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
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant 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
Longmont, Colorado, on November 8, 1994.
MAXTOR CORPORATION
By: /s/ Glenn H. Stevens
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Glenn H. Stevens
Vice President and General Counsel
POWER OF ATTORNEY
The officers and directors of Maxtor Corporation whose signatures
appear below hereby constitute and appoint J. Larry Smart and Glenn
H. Stevens, and each of them, their true and lawful attorneys and
agents, with full power of substitution, each with power to act
alone, to sign and execute on behalf of the undersigned any amendment
or amendments to this registration statement on Form S-8, and each of
the undersigned does hereby ratify and confirm all that each of said
attorney and agent, or their and his substitutes, shall do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the
following persons in the capacities and on the dates indicated:
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Signature Title Date
/s/ J. Larry Smart President, Chief Executive Officer 11/8/94
- ------------------ and Director (Principal Executive --------
J. Larry Smart Officer)
/s/ Walter D. Amaral Vice President, Finance and Chief 11/8/94
- -------------------- Financial Officer (Principal --------
Walter D. Amaral Financial Officer)
/s/ R. Balanson Executive Vice President, Chief 11/8/94
- --------------- Technical Officer and Director -------
Richard Balanson
/s/ M. H. Chung Chairman of the Board 11/8/94
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M. H. Chung
/s/ Gregory M. Gallo Director 11/8/94
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Gregory M. Gallo
Director
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Charles Hill
/s/ I. B. Jeon Director 11/8/94
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I. B. Jeon
/s/ C. S. Park Director 11/8/94
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C. S. Park
/s/ Ryal R. Poppa Director 11/8/94
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Ryal R. Poppa
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is
incorporated by reference to the exhibits to the Company's
quarterly report on Form 10-Q filed February 8, 1994
4.2 Amended and Restated By-Laws of the Company are incorporated by
reference to the exhibits to the Company's quarterly report on
Form 10-Q filed February 8, 1994
4.3 Stockholders' Rights Agreement is incorporated by reference to
the exhibits to the Company's current report on Form 8-K
(No. 0-14016) effective February 8, 1988
5 Opinion regarding legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this
registration statement)
Exhibit 5
October 20, 1994
Securities and Exchange Commission M0486-914801
450 Fifth Street, N.W.
Washington, DC 20549
Re: Maxtor Corporation 1995 Stock Option Plan
Registration Statement on Form S-8
Gentlemen and Ladies:
As legal counsel for Maxtor Corporation, a Delaware corporation
(the "Company"), we are rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to
2,000,000 shares of the Common Stock of the Company, $0.01 par value,
which may be issued pursuant to the exercise of options granted under
the Maxtor Corporation 1995 Stock Option Plan (the "Plan").
We have examined all instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion
hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity to the originals of
all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State
of California, the corporation laws of the State of Delaware and the
federal law of the United States. As to matters of Delaware
corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard,
unofficial compilations. We have not obtained opinions of counsel
licensed to practice in jurisdictions other than the State of
California.
Based on such examination, we are of the opinion that the
2,000,000 shares of Common Stock which may be issued upon the
exercise of options granted under the Plan are duly authorized shares
of the Company's Common Stock, and, when issued against payment of
the purchase price therefor in accordance with the provisions of the
Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name
wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
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GRAY CARY WARE & FREIDENRICH
A Professional Corporation
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1995 Stock Option Plan of
Maxtor Corporation of our report dated April 22, 1994, with respect
to the consolidated financial statements and schedules of Maxtor
Corporation included in its Annual Report (Form 10-K) for the year
ended March 26, 1994, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
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Ernst & Young LLP
San Jose, California
November 4, 1994
