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As filed with the Securities and Exchange Commission on September 14, 1999
Registration No. 333- ___________
UNITED STATES 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)
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Delaware 77-0123732
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(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
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510 Cottonwood Drive
Milpitas, CA 95035
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(Address of principal executive offices) (Zip Code)
MAXTOR CORPORATION
1996 STOCK OPTION PLAN, AS AMENDED,
1998 EMPLOYEE STOCK PURCHASE PLAN AND
INDIVIDUAL OPTION AGREEMENTS GRANTED UNDER THE
CREATIVE DESIGN SOLUTIONS, INC. INCENTIVE STOCK OPTION
PLAN AND ASSUMED BY MAXTOR CORPORATION
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(Full title of plan)
Glenn H. Stevens
Vice President, General Counsel and Secretary
Maxtor Corporation
510 Cottonwood Drive
Milpitas, CA 95035
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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.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered(1) registered(2) per share(3) offering price(3) fee
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1996 Stock Option Plan
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Common Stock 3,677,504 $6.875 $25,282,840
Par Value $0.01
1998 Employee Stock Purchase Plan
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Common Stock 700,000 $5.84375 $ 4,090,625
Par Value $0.01
Assumed Options
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Common Stock 674,477 $1.096866 $ 739,811
Par Value $0.01
TOTALS 5,051,981 $30,113,276 $8,371.49
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(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to the shares under the 1996 Stock Option Plan, the price
is based on the average of the high and low prices of the Common Stock on
September 13, 1999, as reported on the Nasdaq National Market. The 1998
Employee Stock Purchase Plan establishes a purchase price equal to 85% of the
fair market value of the Company's Common Stock, and, therefore, the price for
shares under this plan is based upon 85% of the average of the high and low
prices of the Common Stock on September 13, 1999, as reported on the Nasdaq
National Market. The price of the Assumed Options is computed on the basis of
the weighted average exercise price of the assumed options.
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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
Sections 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 ended December 26, 1998, as filed with the Commission.
(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 registrant
document referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
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
Inapplicable.
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' "duty of care." While the relevant
statute does not change the 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 and approval of any transaction from which a
director derives an improper personal benefit.
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The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware Law. 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
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 (1)(i) and (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
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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.
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.
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 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.
SIGNATURE
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 Milpitas, State of California, on September 10,
1999.
MAXTOR CORPORATION
By: /s/ GLEN H. STEVENS
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Glen H. Stevens
Vice President, General Counsel and
Secretary
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Maxtor Corporation, whose signatures appear
below, hereby constitute and appoint Michael R. Cannon 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 or 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 by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ Michael R. Cannon President, Chief Executive Officer September 10, 1999
- ------------------------ and Director (Principal Executive
Michael R. Cannon Officer)
/s/ Paul J. Tufano Senior Vice President, Finance and September 10, 1999
- ------------------------ Chief Financial Officer (Principal
Paul J. Tufano Financial Officer)
/s/ Chong Sup Park Chairman of the Board and Director September 10, 1999
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Chong Sup Park
/s/ Charles F. Christ Director September 10, 1999
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Charles F. Christ
/s/ Thomas L. Chun Director September 10, 1999
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Thomas L. Chun
Director
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Chang See Chung
/s/ Charles Hill Director September 10, 1999
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Charles Hill
/s/ Y.H. Kim Director September 10, 1999
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Y.H. Kim
/s/ Roger W. Johnson Director September 9, 1999
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Roger W. Johnson
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EXHIBIT INDEX
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4.1 Amended and Restated Certificate of Incorporation of the Company,
as filed with the Secretary of State of the State of Delaware on
July 24, 1998 is incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on July 30, 1998 (No. 333-56099)
4.2 Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 3.4 to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on July
30, 1998 (No. 333-56099)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature page to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone 650-833-2000 Fax 650-327-3699 www.graycary.com
September 13, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
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 5,051,981 shares of the Common
Stock, $0.01 par value, of the Company ("Common Stock") which may be issued
pursuant to the exercise of options and purchase rights granted under the Maxtor
Corporation 1996 Stock Option Plan, as amended, and 1998 Employee Stock Purchase
Plan, (collectively, the "Plans"), and the Creative Design Solutions, Inc.
Incentive Stock Option Plan (the "CDS Plan") and assumed by the Company (the
"Assumed Options") pursuant to the Agreement and Plan of Merger dated as of
August 23, 1999, by and among the Company, Popup Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of the Company, Creative Design
Solutions, Inc., a California corporation, and Peter Harvey, a principal
shareholder of Creative Design Solutions, Inc. (the "Merger Agreement").
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 5,051,981 shares of
Common Stock which may be issued under the Plans and Assumed Options are duly
authorized shares of the Company's Common Stock, and, when issued against
receipt of the consideration therefor in accordance with the provisions of the
Plans, Assumed Options, the Merger Agreement, and the CDS Plan, respectively,
will be validly issued, fully paid and nonassessable. 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 LLP
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GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 21, 1999, relating to the
financial statements and financial statement schedule, which appear in Maxtor
Corporation's Annual Report on Form 10-K for the year ended December 26, 1998.
PricewaterhouseCoopers LLP
San Jose, California
September 9, 1999
