As filed with the Commission on October 25, 1995 File No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------
EMC CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2680009
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
171 South Street
Hopkinton, Massachusetts 01748
(Address of principal executive offices, including zip code)
EMC CORPORATION 1993 STOCK OPTION PLAN
(Full title of the plan)
Paul T. Dacier, Esq.
Vice President and General Counsel
EMC Corporation
171 South Street
Hopkinton, MA 01748
(508) 435-1000
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
_______________________________________________________________________________
Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share<F1> price<F1>
_______________________________________________________________________________
Common Stock, 2,000,000 $13.75 $27,500,000 $9,482.75<F3>
$0.01 par value shares<F2>
_______________________________________________________________________________
<F>
<F1> The offering price for shares not subject to options on the date hereof
has been estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h) on the basis of the average of
the high and low prices of EMC Corporation Common Stock, $0.01 par
value, reported on The New York Stock Exchange on October 23, 1995.
<F2> This registration statement also relates to 5,882,700 shares of Common
Stock previously registered and remaining unissued under Registration
Statement on Form S-8, File No. 33-71598, which (as indicated below) is
incorporated by reference herein.
<F3> In accordance with Instruction E of Form S-8, the registration fee is
being paid with respect to the additional securities only.
</F>
Page 1
EMC Corporation (the "Registrant") hereby incorporates by reference the
contents of the Registrant's Registration Statement on Form S-8, File No. 33-
71598.
Item 8. Exhibits.
Exhibit
4.1 EMC Corporation 1993 Stock Option Plan, as amended to date.
5.1 Opinion of Ropes & Gray.
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Ropes & Gray (contained
in the opinion filed as Exhibit 5
to this registration statement).
25.1 Powers of Attorney (included in Part II of this
registration statement under the caption
"Signatures").
Page 2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 on Form S-8 to be signed on its behalf by the
undersigned thereunto duly authorized, in the Town of Hopkinton, Massachusetts,
on October 25, 1995.
EMC CORPORATION
By /s/ Paul T. Dacier
Paul T. Dacier
Vice President and General Counsel
Each person whose signature appears below constitutes and appoints Michael
C. Ruettgers, Colin G. Patteson and Paul T. Dacier, and each of them singly,
his or her true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement on Form S-8 to be
filed by EMC Corporation, 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 full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their 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 on Form S-8 has been signed below by the following
persons in the capacities shown on the date indicated below.
Signature Capacity Date
/s/ Richard J. Egan Chairman of the October 25, 1995
Richard J. Egan Board (Principal
Executive Officer)
and Director
/s/ Michael C. Ruettgers President and October 1, 1995
Michael C. Ruettgers Chief Executive
Officer and
Director
/s/ Colin G. Patteson Vice President and September 25, 1995
Colin G. Patteson Chief Financial
Officer and
Treasurer (Principal
Financial Officer)
/s/ John R. Egan Executive Vice September 26, 1995
John R. Egan President, Sales
and Marketing, and
Director
/s/ William J. Teuber Vice President and October 10, 1995
William J. Teuber Controller (Chief
Accounting Officer)
_________________________ Director _________ __, 1995
W. Paul Fitzgerald
/s/ Michael J. Cronin Director October 25, 1995
Michael J. Cronin
________________________ Director _________ __, 1995
John F. Cunningham
/s/ Maureen E. Egan Director October 25, 1995
Maureen E. Egan
/s/ Joseph F. Oliveri Director September 27, 1995
Joseph F. Oliveri
Page 3
EXHIBIT INDEX
Exhibit
Number Title of Exhibit Page
4.1 EMC Corporation 1993 Stock Option Plan, as 5
amended to date.
5.1 Opinion of Ropes & Gray. 13
24.1 Consent of Coopers & Lybrand L.L.P. 14
24.2 Consent of Ropes & Gray (contained in the
opinion filed as Exhibit 5 to this
registration statement).
25.1 Powers of Attorney (included in Part II
of this registration statement under
the caption "Signatures").
Page 4
EMC CORPORATION
1993 STOCK OPTION PLAN, as amended May 10, 1995
1. PURPOSE.
The purpose of the EMC Corporation 1993 Stock Option Plan is to enable
EMC Corporation to provide a special incentive to a limited number of key
employees of the Company and its Subsidiaries, if any, who are in a position to
have a significant effect upon the Company's business and earnings. In order
to accomplish this purpose, the Plan authorizes the grant to such key employees
of options to purchase Common Stock of the Company. Increased ownership of
Common Stock will provide such key employees with an additional incentive to
take into account the long-term interests of the Company.
2. DEFINITIONS.
As used herein, the following words or terms have the meanings set
forth below. The masculine gender is used throughout the Plan but is intended
to apply to members of both sexes.
2.1 "Board of Directors" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute.
2.3 "Committee" means the Committee (which, following registration of
the Common Stock under the Securities Exchange Act of 1934, shall consist of
not less than three members of the Board of Directors) appointed by the Board
of Directors to administer the Plan or the Board of Directors as a whole if no
appointment is made.
2.4 "Common Stock" means the Common Stock of the Company.
2.5 "Company" means EMC Corporation, a corporation established under
the laws of The Commonwealth of Massachusetts.
2.6 "Fair Market Value" in the case of a share of Common Stock on a
particular day, means the fair market value as determined from time to time by
the Board of Directors or, where appropriate, by the Committee, taking into
account all information which the Board of Directors, or the Committee,
considers relevant.
2.7 "Incentive Stock Option" means a stock option that satisfies the
requirements of Section 422 of the Code.
2.8 "Participant" means an individual holding a stock option or stock
options granted to him under the Plan.
2.9 "Plan" means the EMC Corporation 1993 Stock Option Plan set forth
herein.
PAGE 5
2.10 "Subsidiary" or "Subsidiaries" means a corporation or corporations
in which the Company owns, directly or indirectly, stock possessing 50 percent
or more of the total combined voting power of all classes of stock.
2.11 "Ten Percent Stockholder" means any person who, at the time an
option is granted, owns or is deemed to own stock (as determined in accordance
with Sections 422 and 424 of the Code) possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of the Company or
its parent or a subsidiary.
3. ADMINISTRATION.
3.1 The Plan shall be administered by the Committee. A majority of
the members of the Committee shall constitute a quorum, and all determinations
of the Committee shall be made by a majority of its members. Any determination
of the Committee under the Plan may be made without notice or meeting of the
Committee by a writing signed by a majority of the Committee members.
Following registration of the Common Stock under the Securities Exchange of
1934, all members of the Committee shall be disinterested persons within the
meaning of Rule 16b-3 under that Act.
3.2 Subject to the provisions set forth herein, the Committee shall
have full authority to determine the provisions of options to be granted under
the Plan, to interpret the terms of the Plan and of options granted under the
Plan, to adopt, amend and rescind rules and guidelines for the administration
of the Plan and for its own acts and proceedings and to decide all questions
and settle all controversies and disputes which may arise in connection with
the Plan.
3.3 The decision of the Committee on any matter as to which the
Committee is given authority under subsection 3.2 shall be final and binding on
all persons concerned.
3.4 Nothing in the Plan shall be deemed to give any officer or
employee, or his legal representatives or assigns, any right to participate in
the Plan, except to such extent, if any, as the Committee may have determined
or approved pursuant to the provisions of the Plan.
4. SHARES SUBJECT TO THE PLAN.
4.1 The maximum number of shares of Common Stock that may be delivered
upon the exercise of options granted under the Plan shall be 8,000,000, subject
to adjustment in accordance with the provisions of Section 8.
4.2 If any option granted under the Plan terminates without having
been exercised in full (including an option which terminates by agreement
between the Company and the Participant), the number of shares of Common Stock
as to which such option has not been exercised prior to termination shall be
available for future grants within the limits set forth in subsection 4.1.
PAGE 6
4.3 Shares of Common Stock delivered upon the exercise of options
shall consist of shares of authorized and unissued Common Stock, except that
the Board of Directors may from time to time in its discretion determine in any
case the shares to be so delivered shall consist of shares of authorized and
issued Common Stock reaquired by the Company and held in its Treasury. No
fractional shares of Common Stock shall be delivered upon the exercise of an
option.
5. ELIGIBILITY FOR OPTIONS.
Employees eligible to receive options under the Plan shall be those key
employees of the Company and its Subsidiaries, if any, who, in the opinion of
the Committee, are in a position to have a significant effect upon the
Company's business and earnings. Members of the Board of Directors of the
Company or a Subsidiary who are not employed as regular salaried officers or
employees of the Company or a Subsidiary may not participate in the Plan.
6. GRANT OF OPTIONS.
6.1 From time to time while the Plan is in effect the Committee may,
in its absolute discretion, select from among the persons eligible to receive
options (including persons to whom options were previously granted) those
persons to whom options are to be granted.
6.2 The Committee shall, in its absolute discretion, determine the
number of shares of Common Stock to be subject to each option granted under the
Plan.
6.3 No Incentive Stock Option may be granted under the Plan after May
12, 2003, but options theretofore granted may extend beyond that date.
7. PROVISIONS OF OPTIONS.
7.1 Incentive Stock Options or Other Options. Options granted under
the Plan may be either Incentive Stock Options or options which do not qualify
as Incentive Stock Options, as the Committee shall determine at the time of
each grant of options hereunder.
7.2 Stock Option Certificates or Agreements. Options granted under
the Plan shall be evidenced by certificates or agreements in such form as the
Committee shall from time to time approve. Such certificates or agreements
shall comply with the terms and conditions of the Plan and may contain such
other provisions not inconsistent with the terms and conditions of the Plan as
the Committee shall deem advisable. In the case of options intended to qualify
as Incentive Stock Options, the certificates or agreements shall contain such
provisions relating to exercise and other matters as are required of incentive
stock options under the Code.
7.3 Terms and Conditions. All options granted under the Plan shall be
subject to the following terms and conditions to the extent applicable and to
PAGE 7
such other terms and conditions not inconsistent therewith as the Committee
shall determine:
7.3.1 Exercise Price. The exercise price per share of
Common Stock with respect to each option shall be as determined by the
Committee but in the case of an Incentive Stock Option not less than 100% (110%
in the case of an Incentive Stock Option granted to a Ten Percent Stockholder)
of the Fair Market Value per share at the time the option is granted. In the
case of an option which does not qualify as an Incentive Stock Option, the
exercise price per share of Common Stock shall be not less than par value.
7.3.2 Value of Shares of Common Stock Subject to
Incentive Stock Options. Each eligible employee may be granted Incentive Stock
Options only to the extent that, in the aggregate under this Plan and all
incentive stock option plans of the Company and any related corporation, such
Incentive Stock Options do not become exercisable for the first time by such
employee during any calendar year in a manner which would entitle the employee
to purchase more than $100,000 in fair market value (determined at the time the
Incentive Stock Options were granted) of Common Stock in that year. Any
options granted to an employee in excess of such amount will be granted as Non-
Qualified Options.
7.3.3 Period of Options. An option shall be exercisable
during such period of time as the Committee may specify (subject to subsection
7.4 below), but in the case of an Incentive Stock Option not after the
expiration of ten years (five years in the case of an Incentive Stock Option
granted to a Ten Percent Stockholder) from the date the option is granted.
7.3.4 Exercise of Options.
7.3.4.1 Each option shall be made exercisable at such
time or times as the Committee shall determine. In the case of an option made
exercisable in installments, the Committee may later determine to accelerate
the time at which one or more of such installments may be exercised.
7.3.4.2 Any exercise of an option shall be in writing
signed by the proper person and delivered or mailed to the General Counsel of
the Company, accompanied by an option exercise notice and payment in full for
the number of shares in respect to which the option is exercised.
7.3.4.3 In the event an option is exercised by the
executor or administrator of a deceased Participant, or by the person or
persons to whom the option has been transferred by the Participant's will or
the applicable laws of descent and distribution, the Company shall be under no
obligation to deliver stock thereunder until the Company is satisfied that the
person or persons exercising the option is or are the duly appointed executor
or administrator of the deceased Participant or the person or persons to whom
the option has been transferred by the Participant's will or by the applicable
laws of descent and distribution.
7.3.4.4 The Committee may at the time of grant
condition the exercise of an option upon agreement by the Participant to
PAGE 8
subject the Common Stock to any restrictions on transfer or repurchase rights
in effect on the date of exercise, upon representations of continued employment
and upon other terms not inconsistent with this Plan. Any such conditions
shall be set forth in the option certificate or other document evidencing the
option.
7.3.4.5 In the case of an option that is not an
Incentive Stock Option, the Committee shall have the right to require that the
individual exercising the option to remit to the Company an amount sufficient
to satisfy any federal, state, or local withholding tax requirements (or makes
other arrangements satisfactory to the Company with regard to such taxes) prior
to the delivery of any Common Stock pursuant to the exercise of the option. In
the case of an Incentive Stock Option, if at the time the Incentive Stock
Option is exercised the Committee determines that under applicable law and
regulations the Company could be liable for the withholding of any federal or
state tax with respect to a disposition of the Common Stock received upon
exercise, the Committee may require as a condition of exercise that the
individual exercising the Incentive Stock Option agree (i) to inform the
Company promptly of any disposition (within the meaning of Section 422 (a) (1)
of the Code and the regulations thereunder) of Common Stock received upon
exercise, and (ii) to give such security as the Committee deems adequate to
meet the potential liability of the Company for the withholding of tax, and to
augment such security from time to time in any amount reasonably deemed
necessary by the Committee to preserve the adequacy of such security.
7.3.4.6 In the case of an option that is exercised
by an individual that is subject to taxation in a foreign jurisdiction, the
Committee shall have the right to require the individual exercising the option
to remit to the Company an amount sufficient to satisfy any federal or
withholding requirement of that foreign jurisdiction (or make other
arrangements satisfactory to the Company with regard to such taxes prior to the
delivery of any Common Stock pursuant to the exercise of the option).
7.3.5 Payment for and Delivery of Stock. The shares of
stock purchased on any exercise of an option granted hereunder shall be paid
for in full in cash or, if permitted by the terms of the option, in shares of
unrestricted Common Stock at the time of such exercise or, if so permitted, a
combination of such cash and Common Stock. A Participant shall not have the
rights of a stockholder with respect to awards under the Plan except as to
stock actually issued to him.
7.3.6 Listing of Stock, Withholding and Other Legal
Requirements. The Company shall not be obligated to deliver any stock until
all federal and state laws and regulations which the Company may deem
applicable have been complied with, nor, in the event the outstanding Common
Stock is at the time listed upon any stock exchange, until the stock to be
delivered has been listed or authorized to be added to the list upon official
notice of issuance to such exchange. In addition, if the shares of stock
subject to any option have not been registered in accordance with the
Securities Act of 1933, as amended, the Company may require the person or
persons who wishes or wish to exercise such option to make such representation
PAGE 9
or agreement with respect to the sale of stock acquired on exercise of the
option as will be sufficient, in the opinion of the Company's counsel, to
avoid violation of said Act, and may also require that the certificates
evidencing said stock bear an appropriate restrictive legend.
7.3.7 Non-transferability of Options. No option may be
transferred by the Participant otherwise than by will or by the laws of
descent and distribution, and during the Participant's lifetime the option
may be exercised only by him.
7.3.8 Death. If a Participant dies at a time when he is
entitled to exercise an Incentive Stock Option, then at any time or times
within three years after his death such Incentive Stock Option may be
exercised, as to all or any of the shares which the Participant was entitled to
purchase thereunder immediately prior to his death, by his executor or
administrator or the person or persons to whom the Incentive Stock Option is
transferred by will or the applicable laws of descent and distribution, and
except as so exercised such Incentive Stock Option shall expire at the end of
such three-year period. In no event, however, may any Incentive Stock Option
granted under the Plan be exercised after the expiration of ten years (five
years in the case of an Incentive Stock Option granted to a Ten Percent
Stockholder) from the date the Incentive Stock Option was granted.
7.3.9 Termination of Employment. If the employment of a
Participant terminates for any reason other than his death, all options held
by the Participant shall thereupon expire on the date of termination unless
the option by its terms, or the Committee by resolution, shall allow the
Participant to exercise any or all of the options held by him after
termination. In the case of an Incentive Stock Option, the Incentive Stock
Option shall in any event expire at the end of three months after such
termination of employment, or after the expiration of ten years (five years
in the case of an Incentive Stock Option granted to a Ten Percent
Stockholder) from the date the Incentive Stock Option was granted,
whichever occurs first. If the Committee so decides, an option may provide
that a leave of absence granted by the Company or Subsidiary is not a
termination of employment for the purpose of this subsection 7.3.9, and in the
absence of such a provision the Committee may in any particular case determine
that such a leave of absence is not a termination of employment for such
purpose. The Committee shall also determine all other matters relating to
continuous employment.
7.4 Authority of the Committee. The Committee shall have the
authority, either generally or in particular instances, to waive compliance by
a Participant with any obligation to be performed by him under an option and to
waive any condition or provision of an option, except that the Committee may
not (i) increase the total number of shares covered by any Incentive Stock
Option (except in accordance with Section 8), (ii) reduce the option price per
share of any Incentive Stock Option (except in accordance with Section 8) or
(iii) extend the term of any Incentive Stock Option to more than ten years,
subject, however, to the provisions of Section 10.
Page 10
8. CHANGES IN STOCK.
In the event of a stock dividend, stock split or other change in
corporate structure or capitalization affecting the Common Stock that becomes
effective after the adoption of the Plan by the Board of Directors, the
Committee shall make appropriate adjustments in (i) the number and kind of
shares of stock on which options may thereafter be granted hereunder, (ii) the
number and kind of shares of stock remaining subject to each option outstanding
at the time of such change and (iii) the option price. The Committee's
determination shall be binding on all persons concerned. Subject to any
required action by the stockholders, if the Company shall be the surviving
corporation in any merger or consolidation (other than a merger or
consolidation in which the Company survives but in which a majority of its
outstanding shares are converted into securities of another corporation or are
exchanged for other consideration), any option granted hereunder shall pertain
and apply to the securities which a holder of the number of shares of stock of
the Company then subject to the option would have been entitled to receive, but
a dissolution or liquidation of the Company or a merger or consolidation in
which the Company is not the surviving corporation or in which a majority of
its outstanding shares are so converted or exchanged shall cause every option
hereunder to terminate; provided that if any such dissolution, liquidation,
merger or consolidation is contemplated, the Company shall either arrange for
any corporation succeeding to the business and assets of the Company to issue
to the Participants replacement options (which, in the case of Incentive Stock
Options, satisfy, in the determination of the Committee, the requirements of
Section 424 of the Code) on such corporation's stock which will to the extent
possible preserve the value of the outstanding options or shall make the
outstanding options fully exercisable at least 20 days before the effective
date of any such dissolution, liquidation, merger or consolidation. The
existence of the Plan shall not prevent any such change or other transaction
and no Participant thereunder shall have any right except as herein expressly
set forth.
9. EMPLOYMENT RIGHTS.
Neither the adoption of the Plan nor any grant of options confers upon
any employee of the Company or a Subsidiary any right to continued employment
with the Company or a Subsidiary, as the case may be, nor does it interfere in
any way with the right of the Company or a Subsidiary to terminate the
employment of any of its employees at any time.
10. DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION.
The Committee may at any time discontinue granting options under the
Plan and, with the consent of the Participant, may at any time cancel an
existing option in whole or in part and grant another option to the Participant
for such number of shares as the Committee specifies. The Board of Directors
may at any time or times amend the Plan for the purpose of satisfying the
requirements of any changes in applicable laws or regulations or for any other
purpose which may at the time be permitted by law or may at any time terminate
the Plan as to any further grants of options, provided that no such amendment
shall without the approval of the stockholders of the Company (a) increase the
maximum number of shares available under the Plan, (b) change the group of
PAGE 11
employees eligible to receive options under the Plan, (c) reduce the exercise
price of outstanding incentive options or reduce the price at which incentive
options may be granted, (d) extend the time within which options may be
granted, (e) alter the Plan in such a way that incentive options granted or to
be granted hereunder would not be considered incentive stock options under
Section 422 of the Code, or (f) amend the provisions of this Section 10, and no
such amendment shall adversely affect the rights of any employee (without his
consent) under any option previously granted.
11. EFFECTIVE DATE.
The Plan shall become effective immediately upon its approval by the
stockholders of the Company at the Annual Meeting on May 12, 1993.
PAGE 12
Exhibit 5.1
ROPES & GRAY
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
Telecopier: (617) 951-7050
October 25, 1995
EMC Corporation
171 South Street
Hopkinton, Massachusetts 01748
Ladies/Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 2,000,000 shares of Common Stock, $.01 par
value per share (the "Shares"), of EMC Corporation, a Massachusetts corporation
(the "Company"). The Shares are to be sold from time to time pursuant to the
Company's 1993 Stock Option Plan, as amended (the "Plan").
We are counsel to the Company and are familiar with the proceedings taken
by the Company in connection with the authorization, reservation and
registration of the Shares. We have examined and relied upon such documents,
records, certificates and other instruments as we have deemed necessary for the
purpose of this opinion.
Based on the foregoing, we are of the opinion that the Shares (in addition
to other shares of Common Stock covered by this Registration Statement in
accordance with Instruction E of Form S-8) have been duly authorized and that,
when issued and sold by the Company pursuant to and in accordance with the
Plan, they will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as part of the
Registration Statement.
We understand that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
PAGE 13
Exhibit 24.1
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the registration of 2,000,000 additional shares of
Common Stock, $0.01 par value, of EMC Corporation authorized for issuance
pursuant to the 1993 Stock Option Plan of our report dated January 30, 1995,
with respect to the consolidated financial statements and schedules of EMC
Corporation included in its Annual Report on Form 10-K for the year ended
December 31, 1994 filed with the Securities and Exchange Commission.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
October 25, 1995
PAGE 14
