Exhibit 10.2





Exhibit 10.2




WESTERN DIGITAL CORPORATION

EXECUTIVE SEVERANCE PLAN




1. PURPOSE



The purpose of the Plan is to provide severance benefits to certain Executives whose
employment with the Company or a Subsidiary terminates under certain circumstances as described
more fully herein.



2. EFFECTIVE DATE



All of the policies and practices of the Company and its Subsidiaries regarding severance
benefits or similar payments upon employment termination with respect to Executives in the United
States, other than written employment, separation or equity award agreements with the Company or a
Subsidiary that provide severance benefits or the Company’s Amended and Restated Change of Control
Severance Plan, are hereby superseded by the Plan, which shall be known as the Western Digital
Corporation Executive Severance Plan, effective as of the Effective Date. The Plan was initially
approved by the Board on February 16, 2006 and most recently amended and restated on November 10,
2010.



3. DEFINITIONS



“Administrator” means the Committee or any delegate of such committee acting within the
authority delegated to it pursuant to Section 9.1.



“Base Pay” means the employee’s wages earned on a monthly basis, determined as of the
employment termination date, excluding bonuses and commissions.




“Board” means the Board of Directors of the Company.



“Cause” means the occurrence or existence of any of the following with respect to an
Executive:




(a) the Executive’s conviction by, or entry of a plea of guilty or nolo contendere in,
a court of competent jurisdiction for any crime involving moral turpitude or any felony
punishable by imprisonment in the jurisdiction involved;




(b) whether prior or subsequent to the Effective Date, the Executive’s willful engaging
in dishonest or fraudulent actions or omissions;




(c) failure or refusal to perform his or her duties as reasonably required by the
Company and/or a Subsidiary that employs the Executive;




(d) negligence, insubordination, violation by the Executive of any duty (of loyalty or
otherwise) owed to the Company and/or a Subsidiary, or any other misconduct on the part of
the Executive;


 


 









 






(e) repeated non-prescription use of any controlled substance, or the repeated use of
alcohol or any other non-controlled substance which in the Administrator’s (or its
delegate’s or delegates’) reasonable determination interferes with the Executive’s service
as an officer or employee of the Company and/or a Subsidiary;




(f) sexual harassment by the Executive that has been reasonably substantiated and
investigated;




(g) involvement in activities representing conflicts of interest with the Company
and/or a Subsidiary;




(h) improper disclosure of confidential information;




(i) conduct endangering, or likely to endanger, the health or safety of another
employee;




(j) falsifying or misrepresenting information on the records of the Company and/or a
Subsidiary;




(k) the Executive’s physical destruction or theft of substantial property or assets of
the Company and/or a Subsidiary;




(l) breach of any policy of, or agreement with, the Company and/or a Subsidiary
applicable to the Executive or to which the Executive is otherwise bound.



Review of any determination that a termination is for Cause shall be by the Administrator, in
its sole and exclusive judgment and discretion, in accordance with the provisions of Section 8
herein.



“Change in Control” has the meaning ascribed to such term in the Company’s Amended and
Restated Change of Control Severance Plan; provided, however, that a transaction shall not
constitute a Change in Control unless it is a “change in the ownership or effective control” of the
Company, or a change “in the ownership of a substantial portion of the assets” of the Company
within the meaning of Section 409A of the Code.




“Code” means the United States Internal Revenue Code of 1986, as amended.




“Committee” means the Compensation Committee of the Board of Directors of the Company.




“Company” means Western Digital Corporation, a Delaware corporation.




“Effective Date” means February 16, 2006.


 


 









 





“Eligible Employee” means any person classified by the Company or a Subsidiary, in its sole
discretion, as a non-temporary, full-time or part-time, salaried or hourly employee (specifically
excluding any individual who is not classified by the Company or a Subsidiary as a common law
employee, such as an independent contractor or an individual working through a third-party
provider, such as Kelly Services, without regard to the characterization or recharacterization of
such individual’s status by any court or governmental agency), who is paid from the United States
payroll of the Company or a Subsidiary; provided, however, that in no event shall any employee who
as of the Effective Date is a party to a written employment agreement with the Company or a
Subsidiary (other than an agreement providing for at-will employment by the Company or a Subsidiary
and for no specified term) be an Eligible Employee.




“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



“Executive” means an Eligible Employee who has been designated by the Board or the Committee
as a Tier I Executive, Tier II Executive or Tier III Executive for purposes of participation in the
Plan.



“Participant” means an Executive who is entitled, based on the provisions hereof, to severance
benefits under Section 6.



“Plan” means this Western Digital Corporation Executive Severance Plan, as set forth in this
instrument as it may be amended from time to time.



“Separation from Service,” with respect to an Executive, shall mean that the Executive dies,
retires, or otherwise has a termination of employment with the Company that constitutes a
“separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1), without
regard to the optional alternative definitions available thereunder.



“Subsidiary” means any corporation or other entity a majority of whose outstanding voting
stock or voting power is beneficially owned directly or indirectly by the Company.



4. TERM



The Plan shall commence on the Effective Date and shall continue in effect through December
31, 2008; provided, however, that on December 31, 2006 and each anniversary of such date
thereafter, the term of the Plan shall extend automatically for one additional year, unless the
Committee (or the Board) causes the Company to deliver written notice prior to the end of such term
(or extended term, as applicable) to each Executive then covered by the Plan that the term of the
Plan will not be extended (or further extended, as the case may be), and if such notice is timely
given the Plan shall terminate at the end of the term then in progress.



5. PARTICIPATION



Upon approval of the Plan, the Committee shall designate the Executives initially covered by
the Plan. The Committee may, from time to time, designate additional Eligible Employees as
Executives for purposes of participation in the Plan; provided that the Committee shall limit the
group of all persons eligible to participate in the Plan to a “select group of management or highly
compensated employees” within the meaning of 29 C.F.R. 2520-104-23 or any similar successor
provision. The Committee may, in its sole discretion, remove an Executive from participation in
the Plan and from time to time approve modifications to the Tier to which one or more Executives
have been designated.


 


 









 





6. SEVERANCE BENEFITS



6.1 Severance Benefits to Executives. An Executive whose employment with the Company
or a Subsidiary is terminated by the Company or such Subsidiary, as applicable, without Cause shall
become, subject to the conditions set forth in Section 7, a Participant under the Plan and entitled
to the benefits set forth in this Section 6. The severance benefits provided under Sections 6.2,
6.3, 6.5 and 6.6 of the Plan shall be the obligations of, and shall be provided to the Executive
by, the entity (the Company or a Subsidiary, as applicable) that employs the Executive immediately
prior to the Executive’s termination of employment. For avoidance of doubt, in no event shall an
Executive become entitled to or receive any payment hereunder if the Executive’s employment with
the Company or a Subsidiary is terminated voluntarily by the Executive (for any reason), by the
Company or a Subsidiary, as applicable, for Cause, or on account of the Executive’s death or
disability (as defined in Section 22(e)(3) of the Code). Notwithstanding anything else contained
herein to the contrary, an Executive shall not be deemed to have terminated employment if his or
her employment by the Company or a Subsidiary terminates but he or she continues as an employee of
the Company or another Subsidiary.



6.2 Cash Severance Payment. A Participant shall receive a severance payment equal to
the Participant’s monthly rate of Base Pay multiplied by the number of months set forth below:




(a) Tier I Executive: 24 months




(b) Tier II Executive: 18 months




(c) Tier III Executive: 12 months



Subject to the following provisions of this paragraph, the severance benefit shall be paid to
the Participant in substantially equal installments in accordance with the Company’s standard
payroll practices over a period equal to the applicable number of months set forth above in this
Section 6.2, with the first installment payable in the month following the month in which the
Participant’s Separation from Service occurs. (For purposes of clarity, each such installment
shall equal the applicable fraction of the aggregate severance payment so that, for example, if
such installments were to be made on a monthly basis over twelve months, each installment would
equal one-twelfth (1/12th) of the aggregate severance payment.) However, in the event
that a Participant’s employment has terminated and the Participant is entitled to receive severance
payments under the Plan and a Change in Control occurs before all such severance payments have been
made, any severance payments otherwise due to the Participant under the Plan after the date of the
Change in Control shall be paid to the Participant in a single non-discounted lump sum upon or
within ten (10) business days following the date of such Change in Control (but in no event earlier
than the month following the month in which the Participant’s Separation from Service occurs). In
addition, in the event that a Participant’s employment terminates upon or within one year following
the occurrence of a Change in Control and the Participant is entitled to receive severance payments
under the Plan, the severance payments due to the Participant under the Plan shall be paid to the
Participant in a single non-discounted lump sum in the month following the month in which the
Participant’s Separation from Service occurs in lieu of the installments otherwise provided for
above. The payment rules of this paragraph are subject to Section 6.7.


 


 









 





6.3 Bonus. A Participant shall receive a payment equal to a pro-rata portion of the
Participant’s bonus opportunity under the Company’s (or a Subsidiary’s) bonus program in which the
Participant participates for the bonus cycle in which the Participant’s date of termination occurs
(with such pro-rata portion based on the number of days in the applicable bonus cycle during which
the Participant was employed (not to exceed six (6) months) and assuming 100% of the performance
target(s) subject to the bonus award are met regardless of actual funding by the Company or a
Subsidiary). The payment shall be paid in one lump-sum cash payment in the month following the
month in which the Participant’s Separation from Service occurs.



6.4 Equity Awards. Notwithstanding anything in the applicable stock incentive plan
and/or award agreement to the contrary, upon a Participant’s termination of employment, the
Participant’s then outstanding stock options and restricted stock or stock unit awards that are
subject to time-based vesting will vest and become exercisable or payable, as applicable, as if the
Participant had remained employed with the Company or a Subsidiary for an additional six (6)
months. For avoidance of doubt, the foregoing is not intended to apply to any equity awards held
by the Participant that are subject to performance-based vesting (which shall continue to be
governed by the plan and/or award agreement applicable to such awards) or to supersede any more
favorable provision in any stock incentive plan and/or award agreement regarding accelerated
vesting in the event of the Participant’s termination of employment. Notwithstanding anything to
the contrary herein, the post-termination exercisability of the Participant’s then outstanding
stock options shall continue to be governed by the stock incentive plan and stock option agreement
applicable to such options.



6.5 Outplacement Services. A Participant shall be eligible for outplacement services,
provided by a vendor chosen by the Company or applicable Subsidiary and at the Company’s or
applicable Subsidiary’s expense, after the Participant’s termination of employment for up to the
number of months set forth below:




(a) Tier I Executive: 12 months




(b) Tier II Executives: 12 months




(c) Tier III Executive: 12 months


 


 









 





6.6 Continued Health Care Coverage. If the Participant elects COBRA continuation
coverage within the applicable election period, the Company or applicable Subsidiary shall make the
applicable COBRA premium payments following the expiration of the Participant’s company-provided
medical, dental, and/or vision coverage existing as of the Participant’s termination date for the
number of months set forth below:




(a) Tier I Executive: 18 months




(b) Tier II Executives: 12 months




(c) Tier III Executive: 12 months



Notwithstanding anything in the Plan to the contrary, there shall be no obligation to make
such COBRA premium payments on behalf of any Participant if the Participant otherwise becomes
eligible for equivalent coverage under another employer’s plan. To the extent that the payment or
reimbursement of any benefits pursuant to Section 6.5 or this Section 6.6 is taxable to the
Participant, any such payment or reimbursement shall be made to the Participant on or before the
last day of the Participant’s taxable year following the taxable year in which the related expense
was incurred. The Participant’s right to payment of such benefit is not subject to liquidation or
exchange for another benefit and the amount of such benefits that the Participant receives in one
taxable year shall not affect the amount of such benefits that the Participant receives in any
other taxable year.



6.7 Specified Employees. The provisions of this Section 6.7 shall apply if any
severance payments hereunder constitute “deferred compensation” (within the meaning of Section 409A
of the Code) payable upon the Participant’s Separation from Service and, in such event, such
provisions shall apply only to the extent required to avoid the imputation of any tax, penalty or
interest pursuant to Section 409A of the Code. It is the Company’s intent that severance payments
hereunder should not constitute “deferred compensation” payable upon a Separation from Service
(because such payments should constitute a “short-term deferral” within the meaning of Code Section
409A or otherwise) based on the guidance available as of the date hereof and, accordingly, should
not be subject to the delayed-payment provisions set forth in this Section 6.7. Notwithstanding
any other provision of the Plan to the contrary, if the Participant is a “specified employee”
within the meaning of Treasury Regulation Section 1.409A-1(i) as of the date of the Participant’s
Separation from Service, the Participant shall not be entitled to any severance payments hereunder
until the earlier of (i) the date which is six (6) months after the Participant’s Separation from
Service for any reason other than death, or (ii) the date of the Participant’s death. Any amounts
otherwise payable to the Participant upon or in the six (6) month period following the
Participant’s Separation from Service that are not so paid by reason of this Section 6.7 shall be
paid (without interest) as soon as practicable (and in all events within thirty (30) days) after
the date that is six (6) months after the Participant’s Separation from Service (or, if earlier, as
soon as practicable, and in all events within thirty (30) days, after the date of the Participant’s
death).


 


 









 





7. CONDITIONS TO SEVERANCE BENEFITS



7.1 Release. Notwithstanding anything to the contrary contained herein, the Company’s
or applicable Subsidiary’s obligation to pay benefits to a Participant under Section 6 is subject
to the condition precedent that the Participant execute a valid and effective release of any and
all claims in a form and manner acceptable to the Company, and such release is received by the
Company no earlier than, and no later than fourteen (14) days (or such other period as required by
law) after, the Participant’s termination date and is not revoked by the Participant (pursuant to
any revocation rights afforded by applicable law) or otherwise rendered unenforceable by the
Participant. Notwithstanding anything else contained herein to the contrary, the Company or
applicable Subsidiary will have no obligation to pay any benefit to the Participant under the Plan
unless and until that Participant’s release (in such form) has been fully executed by the
Participant (and the Participant’s spouse, to the extent required by the Company), has been
received by the Company, and has become effective and irrevocable by the Participant.



7.2 Departure and Entitlement Procedure. As a condition to becoming a Participant and
receiving the severance benefits described in Section 6, the Executive must return and deliver to
the Administrator or his or her designee all Company and Subsidiary property within seven (7) days
of the Executive’s termination date. In addition, except as otherwise provided by the Company, if
an Executive resigns prior to his/her scheduled termination date, then he/she shall not be entitled
to any severance payments or any other severance benefits provided herein.



7.3 Other Employment. Subject to the next sentence, a Participant shall not be
required to mitigate the amount of any payments provided for by the Plan by seeking employment or
otherwise. If a Participant is or becomes entitled to benefits under the Plan, the Company and its
Subsidiaries will (unless the Administrator, in its sole discretion, expressly provides otherwise
at the time the related event occurs) cease making the severance payments contemplated by Section
6.2 to the Participant, and cease providing any of the benefits contemplated by Sections 6.5 and
6.6, and they shall have no further obligation to pay or provide such benefits to the Participant
on and after the date the Participant is or becomes any of the following after the Participant’s
Separation from Service: self-employed, or a partner or officer of, joint venturer with, employee
of, or otherwise provides services (whether as a consultant, contractor, director or otherwise) for
compensation (whether current, deferred, contingent or otherwise) to, any person or entity. Each
Participant agrees to immediately notify the Company if he or she is or becomes so employed,
provides such services, or otherwise has such a position or relationship. All severance payments
under the Plan shall be subject to legal deductions, and the Company and/or applicable Subsidiary
reserves the right to offset the benefits payable under the Plan by any advanced monies the
Participant owes the Company or a Subsidiary. The benefits and amounts payable under the Plan
shall be reduced (but not below zero) by any severance pay or benefits to which a Participant is or
becomes entitled under any other severance pay plan, policy, agreement or arrangement. In
addition, in no event shall a Participant become entitled to a duplication of benefits under the
Plan and any other severance plan or program of the Company or a Subsidiary. Without limiting the
generality of the foregoing, in no event shall a Participant receive benefits under the Plan in
connection with his or her termination of employment if such Participant is entitled to benefits
under the Company’s Amended and Restated Change of Control Severance Plan in connection with such
termination of employment. Notwithstanding any provision of the Plan to the contrary, to the
extent that any Participant is entitled to any period of paid notice under Federal or state law
including, but not limited to, the Worker Adjustment Retraining Notification Act, 29 U.S.C.
Sections 2101 et seq., the benefits and amounts payable under the Plan shall be
reduced (but not below zero) by the Base Pay received by the Participant during the period of such
paid notice.



7.4 Limitation On Employee Rights. The Plan shall not give any employee the right to
be retained in the service of the Company or to interfere with or restrict the right of the Company
or applicable Subsidiary to discharge any employee at any time, with or without Cause.


 


 









 





8. RESOLUTION OF DISPUTES



8.1 Claim. If a Participant or any other individual (herein referred to as a
“Claimant”) believes that benefits under the Plan are being wrongfully denied, that the Plan is not
being operated properly, that fiduciaries of the Plan have breached their duties, or that the
Claimant’s legal rights are being violated with respect to the Plan, the Claimant must file a
formal claim with the Administrator. Any such claim for benefits must be filed in writing within
90 days of the date upon which the Participant first knew or should have known the facts upon which
the claim is based.



8.2 Claim Decision. If any claim for benefits under the Plan is denied, in whole or
in part, the Claimant shall be so notified by the Administrator within thirty (30) calendar days of
the date such person’s claim is delivered to the Administrator. At the same time, the
Administrator shall notify the Claimant of his or her right to a review by the Administrator and
shall set forth, in a manner calculated to be understood by the Claimant, specific reasons for such
decision, specific references to pertinent Plan provisions on which the decision is based, a
description of any additional material or information necessary for the Claimant to perfect his or
her request for review, an explanation of why such material or information is necessary, and an
explanation of the Plan’s review procedure.



8.3 Request for Review. Any Claimant or duly authorized representative may appeal
from such decision by submitting to the Administrator within sixty (60) calendar days after the
date of such notice of its decision a written statement:




(a) requesting a review of the claim for benefits by the Administrator;




(b) setting forth all of the grounds upon which the request for review is based and any
facts in support thereof; and




(c) setting forth any issues or comments which the Claimant deems relevant to the
claim.



The Administrator shall act upon such appeal within sixty (60) calendar days after the latter
of receipt of the Claimant’s request for review by it or receipt of all additional materials
reasonably requested by it from such Claimant.



8.4 Review of Decision. The Administrator shall make a full and fair review of an
appeal and all written materials submitted by the Claimant in connection therewith and may require
the Claimant to submit, within ten (10) calendar days of written notice by the Administrator, such
additional facts, documents or other evidence as the Administrator, in its sole discretion, deems
necessary or advisable in making such a review. On the basis of its review, the Administrator
shall make an independent determination of the Claimant’s eligibility for an allowance and the
amount of such allowance, if any, under this Plan. The decision of the Administrator on any appeal
shall be final and conclusive upon all persons if supported by substantial evidence in the record.


 


 









 





8.5 Denial on Review. If on review of a decision, the Administrator denies a claim in
whole or in part, it shall give written notice of its decision to the Claimant setting forth, in a
manner calculated to be understood by the Claimant, the specific reasons for such denial and
specific references to the pertinent Plan provisions on which its decision was based. If a
Claimant believes that the Administrator’s determination on appeal is incorrect, the Claimant or
duly authorized representative may invoke the arbitration procedures described in Section 8.6 or
file suit related to such determination; provided that any legal action must be taken by the
Claimant within ninety (90) days after the date upon which the Administrator’s written decision on
review was sent to the Claimant.



8.6 Arbitration. A Claimant who has followed the procedures in Sections 8.1 through
8.5, but who has not obtained full relief on his or her claim for benefits, may, within ninety (90)
days following his or her receipt of the Administrator’s written decision on review pursuant to
Section 8.5, apply in writing to the Administrator for expedited and binding arbitration of his or
her claim in Orange County, California, before a sole arbitrator selected from Judicial Arbitration
and Mediation Services, Inc., Orange County, California, or its successor (“JAMS”), or if JAMS is
no longer able to supply the arbitrator, such arbitrator shall be selected from the American
Arbitration Association, and shall be conducted in accordance with the provisions of California
Code of Civil Procedure §§ 1280 et seq. as the exclusive forum for the resolution of such
dispute. Pursuant to California Code of Civil Procedure § 1281.8, provisional injunctive relief
may, but need not, be sought by the Company, a Subsidiary or an Executive in a court of law while
arbitration proceedings are pending, and any provisional injunctive relief granted by such court
shall remain effective until the matter is finally determined by the Arbitrator. Final resolution
of any dispute through arbitration may include any remedy or relief which the Arbitrator deems just
and equitable, including any and all remedies provided by applicable state or federal statutes. At
the conclusion of the arbitration, the Arbitrator shall issue a written decision that sets forth
the essential findings and conclusions upon which the Arbitrator’s award or decision is based. Any
award or relief granted by the Arbitrator hereunder shall be final and binding on the parties
hereto and may be enforced by any court of competent jurisdiction. Any rights to trial by jury in
any action, proceeding or counterclaim brought by any of the Company, a Subsidiary or an Executive
in connection with any matter whatsoever arising out of or in any way connected with the Plan are
hereby waived. The Company or applicable Subsidiary shall be responsible for payment of the forum
costs of any arbitration hereunder, including the Arbitrator’s fee. In any proceeding to enforce
the terms of the Plan, the prevailing party shall be entitled to its or his reasonable attorneys’
fees and costs (other than forum costs associated with the arbitration) incurred by it or him in
connection with resolution of the dispute in addition to any other relief granted.



8.7 Legal Fees and Expenses. If any dispute arises between the parties with respect
to the interpretation or performance of the Plan, the prevailing party in any arbitration or
proceeding shall be entitled to recover from the other party its attorneys’ fees, arbitration or
court costs and other expenses incurred in connection with any such proceeding. Amounts, if any,
paid to the Executive under this Section 8.7 shall be in addition to all other amounts due to the
Executive pursuant to the Plan.


 


 









 





9. ADMINISTRATION



9.1 Administrator. Except as provided herein, the Plan shall be administered and
operated by the Administrator. The Administrator is empowered to construe and interpret the
provisions of the Plan and to decide all questions of eligibility for benefits under the Plan and
shall make such determinations in its sole and absolute discretion. The Administrator may at any
time delegate to any other named person or body, or reassume therefrom, any of its responsibilities
or administrative duties with respect to the Plan.



9.2 Experts; Rules. The Administrator may contract with one or more persons to render
advice with regard to any responsibility it has under the Plan. Subject to the limitations of the
Plan, the Administrator shall from time to time establish such rules for the administration of the
Plan as it may deem desirable.



9.3 Indemnity. The Company shall, to the extent permitted by law, by the purchase of
insurance or otherwise, indemnify and hold harmless the Administrator and each other fiduciary with
respect to the Plan for liabilities or expenses they and each of them incur in carrying out their
respective duties under the Plan, other than for any liabilities or expenses arising out of such
fiduciary’s gross negligence or willful misconduct.



10. AMENDMENT



The Committee (or the Board) reserves the right to amend, suspend and/or terminate the Plan at
any time in its sole discretion. No amendment, suspension or termination shall diminish benefits
to which a Participant is currently entitled under the Plan. Any modification or other amendment
of the Plan shall be in writing, signed by either the Company’s Chief Executive Officer or Vice
President, Human Resources.



11. TAXES



Each Participant shall be solely responsible for his or her own tax liability with respect to
participation in this Plan. The Company may withhold (or cause there to be withheld, as the case
may be) from any amounts otherwise due or payable under or pursuant to this Plan such federal,
state and local income, employment, or other taxes as may be required to be withheld pursuant to
any applicable law or regulation. Notwithstanding anything else contained herein to the contrary,
nothing in this Plan is intended to constitute, nor does it constitute, tax advice, and in all
cases, each Participant should obtain and rely solely on the tax advice provided by the
Participant’s own independent tax advisors (and not this Plan, the Company, any of the Company’s
affiliates, or any officer, employee or agent of the Company or any of its affiliates).


 


 









 





12. GENERAL



12.1 Assignment by Participants. None of the benefits, payments, proceeds or claims
of any Executive or Participant shall be subject to any claim of any creditor and, in particular,
the same shall not be subject to attachment or garnishment or other legal process by any creditor,
nor shall any such Executive have any right to alienate, anticipate, commute, pledge, encumber or
assign any of the benefits or payments or proceeds that he or she may expect to receive,
contingently or otherwise, under the Plan. Notwithstanding the foregoing, benefits that are in pay
status may be subject to a court order of garnishment or wage assignment, or similar order, or a
tax levy. The Plan shall inure to the benefit of and be enforceable by each Participant’s personal
or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and
legatees. If a Participant dies while any amount would still be payable to him or her hereunder
had he or she continued to live, all such amounts, unless otherwise provided herein, shall be paid
to the Participant’s beneficiary in accordance with the terms of the Plan.



12.2 Binding Effect. The Company or applicable Subsidiary will require any successor
(whether by purchase of assets, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company or applicable Subsidiary to expressly assume and agree to
perform all of the obligations of the Company or applicable Subsidiary under the Plan (including
the obligation to cause any subsequent successor to also assume the obligations of the Plan) unless
such assumption occurs by operation of law. For avoidance of doubt, in the event that a successor
of a Subsidiary (whether by purchase of assets, merger, consolidation or otherwise) assumes the
Subsidiary’s obligations under the Plan, the Company will have no obligations under the Plan with
respect to the Executives employed by such Subsidiary.



12.3 No Waiver. No waiver of any term, provision or condition of the Plan, whether by
conduct or otherwise, in any one or more instances shall be deemed or be construed as a further or
continuing waiver of any such term, provision or condition or as a waiver of any other term,
provision or condition of the Plan.



12.4 Expenses; Unsecured General Creditor. The benefits and costs of the Plan shall
be paid by the Company and/or a Subsidiary out of its general assets. The status of a claim
against the Company or a Subsidiary with respect to the benefits provided hereunder shall be same
as the status of a claim against the Company or applicable Subsidiary by any general or unsecured
creditor.



12.5 ERISA. The Plan is an unfunded compensation arrangement for a select group of
management or highly compensated employees of the Company or a Subsidiary and any exemptions under
ERISA applicable to such an arrangement shall be applicable to the Plan.



12.6 Section 409A. The Plan is intended to comply with Section 409A of the Code
(including the Treasury regulations and other published guidance relating thereto) so as not to
subject any Participant to payment of any interest or additional tax imposed under Code Section
409A. The provisions of the Plan shall be construed and interpreted to avoid the imputation of any
such additional tax, penalty or interest under Code Section 409A yet preserve (to the nearest
extent reasonably possible) the intended benefit payable to the Participant.


 


 









 





12.7 WARN Act. Benefits payable under the Plan are intended to satisfy, where
applicable, any Company obligations under the Federal Worker Adjustment and Retraining Notification
Act and any similar obligations that the Company or its Subsidiaries may have under any successor
or other severance pay statute.



12.8 Construction. The masculine pronoun shall include the feminine pronoun and the
feminine pronoun shall include the masculine pronoun and the singular pronoun shall include the
plural pronoun and the plural pronoun shall include the singular pronoun, unless the context
clearly indicates otherwise.



12.9 Governing Law. The Plan shall be construed according to the laws of the State of
California, except to the extent such laws are preempted by federal law.



12.10 Severability. If any provision of the Plan is held to be illegal, invalid or
unenforceable under any present or future law, and if the rights or obligations of any party hereto
under the Plan will not be materially and adversely affected hereby, (i) such provision will be
fully severable, (ii) the Plan will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of the
Plan will remain in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of the Plan a legal, valid and
enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as
may be possible.



12.11 Notices. Any notice required or permitted by the Plan shall be in writing,
delivered by hand, or sent by registered or certified mail, return receipt requested, or by
recognized courier service (regularly providing proof of delivery), addressed as follows:




(a) if to the Company or, where applicable, the Administrator:




Western Digital Corporation

20511 Lake Forest Drive

Lake Forest, California 92630

Attention: Vice President, Human Resources




With a copy to:




Western Digital Corporation

20511 Lake Forest Drive

Lake Forest, California 92630

Attention: General Counsel



(b) if to the Executive or Participant, at the address set forth on the records of the Company
or applicable Subsidiary, as the case may be, or to such other address or addresses most recently
communicated to the Company or applicable Subsidiary by the Executive or Participant.



Each such notice shall be effective (i) if given by mail, three days after being deposited in
the mails or (ii) if given personally or by other means when actually delivered at such address.