7
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
MAXTOR CORPORATION
------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0123732
- ----------------------------------- -----------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
211 River Oaks Parkway
San Jose, California 95134
--------------------------
(Address of principal executive offices) (Zip code)
MAXTOR CORPORATION
1992 EMPLOYEE STOCK PURCHASE PLAN
AND
MAXTOR CORPORATION
1996 OUTSIDE DIRECTORS STOCK OPTION PLAN
----------------------------------------
(Full title of the plan)
Glenn H. Stevens
Vice President and General Counsel
MAXTOR CORPORATION
211 River Oaks Parkway
San Jose, California 95134
---------------------------
(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)
- ----------------- ----------- ---------- --------------- ------------
Employee Stock
Purchase Plan
Common Stock 1,500,000 $3.7719 $5,657,850.00 $1,950.98
($0.01 par value)
Outside Directors
Stock Option Plan
Common Stock 340,000 $4.4375 $1,508,750.00 $ 520.26
($0.01 par value)
---------- -------------- ---------
Total 1,840,000 $7,166,600.00 $2,471.24
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to the shares issuable pursuant to the Outside
Directors Stock Option Plan, the price is based upon the average of the
high and low prices of the Common Stock on October 3, 1995, as reported on
the National Association of Securities Dealers Automated Quotations system.
As to shares issuable pursuant to the Employee Stock Purchase Plan, which
establishes a purchase price equal to 85% of the fair market value of the
Company's common stock, the price for such shares is 85% of the average
price determined in accordance with the preceding sentence.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------------------------------------------------
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
- ----------------------------------
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
- -----------------------------------------------
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 October 3, 1995, attorneys of Gray Cary Ware &
Freidenrich, a Professional Corporation, owned 52,789 shares (including
shares subject to options) of the common stock of the Company.
Item 6. Indemnification of Directors and Officers
- --------------------------------------------------
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
- --------------------------------------------
Inapplicable.
Item 8. Exhibits
- -----------------
See Exhibit Index.
Item 9. Undertakings
- ---------------------
(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, State of Colorado, on
October 9, 1995.
MAXTOR CORPORATION
By: /s/ Glenn H. Stevens
-------------------------------
Glenn H. Stevens
Vice President, General Counsel
and Secretary
POWER OF ATTORNEY
The officers and directors of Maxtor Corporation whose signatures appear
below hereby constitute and appoint C.S. Park 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:
Signature Title Date
- ----------------------- ------------------------------------- ----------
/s/ C. S. Park President, Chief Executive Officer 10/9/95
- --------------------- and Director (Principal Executive
C. S. Park Officer)
/s/ Nathan Kawaye Vice President, Finance, 10/9/95
- --------------------- Chief Accounting Officer
Nathan Kawaye
/s/ M. H. Chung Chairman of the Board 10/9/95
- ---------------------
M. H. Chung
/s/ Richard D. Balanson Director 10/9/95
- -----------------------
Richard D. Balanson
/s/ Charles F. Christ Director 10/9/95
- -----------------------
Charles F. Christ
/s/ Gregory M. Gallo Director 10/9/95
- -----------------------
Gregory M. Gallo
/s/ Charles Hill Director 10/9/95
- -----------------------
Charles Hill
/s/ I. B. Jeon Director 10/9/95
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I. B. Jeon
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 on
February 8, 1994
4.2 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
4.3 Stockholders' Rights Agreement is incorporated by
reference to the exhibits to the Company's current report
on Form 8-K (No. 0-14016) effective 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)
2
Exhibit 5
October 9, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Maxtor Corporation 1992 Employee Stock Purchase Plan and
Maxtor Corporation 1996 Outside Directors 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
1,500,000 shares of the Common Stock of the Company, $0.01 par value, which
may be issued pursuant to the exercise of purchase rights granted under the
Maxtor Corporation 1992 Employee Stock Purchase Plan (the "Purchase Plan")
and 340,000 such shares which may be issued pursuant to the exercise of
options granted under the Maxtor Corporation 1996 Outside Directors Stock
Option Plan (the "Directors 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 1,500,000
shares and 340,000 shares of Common Stock which may be issued upon the
exercise of purchase rights granted under the Purchase Plan and exercise of
options granted under the Directors Plan, respectively, 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
Purchase Plan or the Directors Plan, as the case may be, 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
----------------------------------
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
1
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 Maxtor Corporation 1992 Employee Stock
Purchase Plan and the Maxtor Corporation 1996 Outside Directors Stock
Option Plan of our report dated April 19, 1995, 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 25,
1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
- ----------------------
San Jose, California
October 6, 1995
