<PAGE>
Registration No. 33-_________
As filed with the Securities and Exchange Commission on March 1, 1996.
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 juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
171 South Street
Hopkinton, Massachusetts 01748
(Address, including zip code of Principal Executive Offices)
McDATA CORPORATION 1990 CLASS A STOCK OPTION PLAN
McDATA CORPORATION 1990 CLASS B STOCK OPTION PLAN
(Full Title of the Plans)
Paul T. Dacier
Vice President and General Counsel
EMC Corporation
171 South Street
Hopkinton, Massachusetts 01748
(508) 435-1000
(Name, address and telephone number,
including area code, of agent for service)
________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Title of each class of Proposed maximum Proposed maximum Amount of
securities to be Amount to be offering price per aggregate offering registration
registered registered share(1) price fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value per share 493,400 shares $11.42 $5,634,628.00 $1,942.98
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h)(1) based upon the maximum exercise price of options
granted pursuant to the listed plans.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
(a) the Registrant's latest Annual Report filed pursuant to Section
13(a) or 15(d) of the Exchange Act;
(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; and
(c) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of this offering 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 (such documents, and the documents enumerated above, being
hereinafter referred to as the "Incorporated Documents"). Any statement
contained in an Incorporated Document shall be deemed to be modified or
superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed Incorporated Document
or in any prospectus or prospectus supplement modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of the Registrant's common stock being
registered pursuant to this Registration Statement will be passed upon for the
Registrant by Paul T. Dacier, Vice President and General Counsel of the
Registrant. As of December 31, 1995, Mr. Dacier was the beneficial owner (for
purposes of the Exchange Act) of 49,768 shares of the Registrant's common stock.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 9 of the Amended and Restated Bylaws of the Registrant,
the Registrant shall, to the extent legally permissible, indemnify each of its
directors and officers (including persons who were at its request serving as
directors, officers or trustees of another organization or in any capacity with
respect to any employee benefit plan) against all liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and counsel fees, reasonably incurred by him in connection with
the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, in which he may be involved or with which he may be
threatened, while in office or thereafter, by reason of his being or having been
such a director or officer, except with respect to any matter as to which he
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his action was in the best interests of the
Registrant (any person serving another organization in one or more of the
indicated capacities at the request of the Registrant who shall have acted in
good faith in the reasonable belief that his action was in the best interests of
such other organization to be deemed as having acted in such manner with respect
to the Registrant) or, to the extent that such matter relates to service with
respect to any employee benefit plan, in the best interests of the participants
or beneficiaries of such employee benefit plan; provided, however, that as to
any matter disposed of by a compromise payment by such director or officer,
pursuant to a consent decree or otherwise, no indemnification either for said
payment or for any other expenses shall be provided unless such compromise shall
be approved as in the best interests of the Registrant, after notice that it
involves such indemnification: (a) by a disinterested majority of the directors
then in office; or (b) by a majority of the disinterested directors then in
office, provided that there has been obtained an opinion in writing of
independent legal counsel to the effect that such director or officer appears to
have acted in good faith in the reasonable belief that his action was in the
best interests of the Registrant; or (c) by the holders of a majority of the
outstanding stock at the time entitled to vote for directors, voting as a
single class, exclusive of any stock owned by any interested director or
officer. Expenses, including counsel fees, reasonably incurred by any director
or officer in connection with the defense or disposition of any such action,
suit or other proceeding may be paid from time to time by the Registrant in
advance of the final disposition thereof upon receipt of an undertaking by such
director or officer to repay the amounts so paid to the Registrant if it is
ultimately determined that indemnification for such expenses is not authorized
under Section 9. The right of indemnification provided by Section 9 shall not
be exclusive of or affect any other rights to which any director or officer may
be entitled. As used in Section 9, the terms "director" and "officer" include
their respective heirs, executors and administrators, and an "interested"
director or officer is one against whom in such capacity the proceedings in
question or another proceeding on the same or similar grounds is then pending.
Nothing contained in Section 9 shall affect any rights to indemnification to
which corporate personnel other than directors and officers may be entitled by
contract or otherwise under law.
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Form of stock certificate (incorporated by reference from the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1987, as filed with the Commission on March 31, 1988).
4.2 McDATA Corporation 1990 Class A Stock Option Plan.
4.3 McDATA Corporation 1990 Class B Stock Option Plan.
5.1 Opinion of Paul T. Dacier regarding the legality of the Common Stock
being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Paul T. Dacier (included in the opinion filed as Exhibit
5.1).
25.1 Power of Attorney (included in Part II of this Registration Statement
under the caption "Signatures").
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
a. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
b. That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
c. 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.
II-3
<PAGE>
d. That, for purposes of determining any liability under the
Securities Act of 1933, 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.
e. To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
f. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hopkinton, State of Massachusetts, on February 28,
1996.
EMC CORPORATION
By: /s/ Richard J. Egan
------------------------
Richard J. Egan, Chairman of the Board
Each of the undersigned directors and/or officers of the Registrant, by
virtue of his or her signature to this Registration Statement appearing below,
hereby constitutes and appoints Michael C. Ruettgers, Colin G. Patteson and Paul
T. Dacier, and each of them singly, with full power of substitution and
resubstitution, as attorneys-in-fact in his or her name, place and stead to
execute any and all amendments to this Registration Statement in the capacity or
capacities set forth opposite his or her name and hereby ratifies all that said
attorneys-in-fact may do by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Richard J. Egan Chairman of the Board (Principal February 28, 1996
- ------------------------ Executive Officer) and Director
Richard J. Egan
/s/ Michael C. Ruettgers President, Chief Executive Officer February 28, 1996
- ------------------------ and Director
Michael C. Ruettgers
/s/ John R. Egan Executive Vice President, Sales and February 28, 1996
- ---------------------- Director
John R. Egan
/s/ Colin G. Patteson Vice President and Chief Financial February 28, 1996
- --------------------- Officer (Principal Financial
Colin G. Patteson Officer)
/s/ William J. Teuber Vice President and Controller February 28, 1996
- ----------------------- (Principal Accounting Officer)
William J. Teuber
II-5
<PAGE>
- ----------------------- Director February 28, 1996
W. Paul Fitzgerald
/s/ Joseph F. Oliveri Director February 28, 1996
- -----------------------
Joseph F. Oliveri
/s/ Michael J. Cronin Director February 28, 1996
- -----------------------
Michael J. Cronin
/s/ Maureen E. Egan Director February 28, 1996
- -----------------------
Maureen E. Egan
Director February 28, 1996
- -----------------------
John F. Cunningham
II-6
<PAGE>
Exhibit 4.2
McDATA CORPORATION
1990 CLASS A STOCK OPTION PLAN
(As approved by the Board of Directors
on August 28, 1990,
and by the Stockholders on
November 16, 1990)
I. Purpose
The McDATA Corporation 1990 Class A Stock Option Plan ("Plan") provides
for the grant of Stock Options to Employees of McDATA Corporation (the
"Company"), and such of its subsidiaries (as defined in Section 425(f)
of the Internal Revenue Code of 1986 (the "Code")) as the Board of
Directors of the Company (the "Board") shall from time to time
designate ("Participating Subsidiaries"), in order to advance the
interests of the Company and its Participating Subsidiaries through the
motivation, attraction and retention of their respective Employees.
II. Incentive Stock Options and Non-Incentive Stock Options
The Stock Options granted under the Plan may be either:
(a) Incentive Stock Options ("ISOs") which are intended to be
"Incentive Stock Options" as that term is defined in Section 422A
of the Code; or
(b) Nonstatutory Stock Options ("NSOs") which are intended to be
options that do not qualify as "Incentive Stock Options" under
Section 422A of the Code.
All Stock Options shall be ISOs unless the Option Agreement clearly
designates the Stock Options granted thereunder, or a specified portion
thereof, as NSOs or unless the stockholders of the Company do not
approve the Plan within twelve months after the Plan is adopted by the
Board. If the Plan is not approved by the stockholders of the Company
within twelve months after the Plan is adopted by the Board, any ISO
granted under the Plan shall be treated as an NSO as of the original
date of grant, but all other terms and conditions of such Stock Options
shall continue in effect. Subject to the other provisions of the Plan,
a Participant
1
<PAGE>
may receive ISOs and NSOs at the same time, provided that
the ISOs and NSOs are clearly designated as such.
Except as otherwise expressly provided herein, all of the provisions
and requirements of the Plan relating to Stock Options shall apply to
ISOs and NSOs.
III. Administration
3.1 Committee. The Plan shall be administered by a committee
---------
("Committee") composed of at least two members of the Board of
Directors. The Board of Directors may reserve to itself any of the
authority granted to the Committee as set forth herein, and it may
perform and discharge all of the functions and responsibilities of
the Committee at any time that a duly constituted Committee is not
appointed and serving. All references in this Plan to the
"Committee" shall be deemed to refer to the Board of Directors
whenever the Board is discharging the powers and responsibilities
of the Committee. The Committee or the Board, as the case may be,
shall have full authority to administer the Plan, including
authority to interpret and construe any provision of the Plan and
any Stock Option granted thereunder, and to adopt such rules and
regulations for administering the Plan as it may deem necessary in
order to comply with the requirements of the Code or in order that
Stock Options that are intended to be ISOs will be classified as
incentive stock options under the Code, or in order to conform to
any regulation or to any change in any law or regulation
applicable thereto. The Committee or the Board may delegate any of
its responsibilities under the Plan, other than its responsibility
to grant Stock Options or to interpret and construe the Plan.
3.2 Actions of Committee. All actions taken and all interpretations
--------------------
and determinations made by the Committee in good faith (including
determinations of Fair Market Value) shall be final and binding
upon all Participants, the Company and all other interested
persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith
with respect to the Plan, and all members of the Committee shall,
in addition to their rights as directors, be fully protected by
the Company with respect to any such action, determination or
interpretation.
IV. Definitions
4.1 "Stock Option." A Stock Option is the right granted under the
-------------
Plan to an Employee to purchase, at such time or times and at such
price or prices
2
<PAGE>
("Option Price") as are determined by the Committee, the number of
shares of Common Stock determined by the Committee.
4.2 "Common Stock." A share of Common Stock means a share of
-------------
authorized but unissued or reacquired Class A Common Stock (par
value $.001 per share) of the Company.
4.3 "Fair Market Value." If the Common Stock is not traded publicly,
------------------
the Fair Market Value of a share of Common Stock on any date shall
be determined, in good faith, by the Board or the Committee after
such consultation with outside legal, accounting and other experts
as the Board or the Committee may deem advisable, and the Board or
the Committee shall maintain a written record of its method of
determining such value. If the Common Stock is traded publicly,
the Fair Market Value of a share of Common Stock on any date shall
be the average of the representative closing bid and asked prices,
as quoted by the National Association of Securities Dealers
through NASDAQ (its automated system for reporting quotes), for
the date in question or, if the Common Stock is listed on the
NASDAQ National Market System or is listed on a national stock
exchange, the officially quoted closing price on NASDAQ or such
exchange, as the case may be, on the date in question.
4.4 "Employee". An Employee is an employee of the Company or any
---------
Participating Subsidiary.
4.5 "Participant". A Participant is an Employee to whom a Stock
------------
Option is granted.
V. Eligibility and Participation
Grants of Stock Options under this Plan may be made to Employees who
are, at the time of grant, holders of Class A Common Stock or of
options to acquire Class A Common Stock of the Company. Any Director
of the Company or of a Participating Subsidiary who is also an Employee
shall also be eligible to receive Stock Options, but Directors who are
not Employees shall not be eligible to receive Stock Options under the
Plan.
The Committee shall from time to time determine the Employees to whom
Stock Options shall be granted, the number of shares of Common Stock
subject to each Stock Option to be granted to each such Employee, the
Option Price of such Stock Options, all as provided in this Plan. The
Option Price of any ISO shall be not less than the Fair Market Value of
a share of Common Stock on the date on which the Stock Option is
granted. The Option Price of an NSO shall not be less than
3
<PAGE>
50% of the Fair Market Value of a share of Common Stock on the date the
NSO is granted. If an ISO is granted to an Employee who then owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary corporation
of the Company, the Option Price of such ISO shall be at least 110% of
the Fair Market Value of the Common Stock subject to the ISO at the
time such ISO is granted, and such ISO shall not be exercisable after
five years after the date on which it was granted. Each Stock Option
shall be evidenced by a written agreement ("Option Agreement")
containing such terms and provisions as the Committee may determine,
subject to the provisions of this Plan.
VI. Shares of Common Stock Subject to the Plan
6.1 Maximum Number. The maximum aggregate number of shares of Common
--------------
Stock that may be made subject to stock options under this Plan
shall be 3,000,000 shares; provided that such number of shares
shall be reduced by the number of shares subject to outstanding
options under the Company's 1982 Incentive Stock Option Plan. To
the extent that if the aggregate Fair Market Value (determined as
of the time a Stock Option is granted) of the Common Stock subject
to a Stock Option that first becomes exercisable in a particular
calendar year exceeds $100,000, the Stock Option shall be treated
as an NSO with respect to the portion of such shares having a Fair
Market Value in excess of $100,000. If any shares of Common Stock
subject to Stock Options are not purchased or otherwise paid for
before such Stock Options expire, such shares may again be made
subject to Stock Options.
6.2 Capital Changes. In the event any changes are made to the
---------------
outstanding shares of Common Stock (whether by reason of merger,
consolidation, reorganization, recapitalization, stock dividend in
excess of ten percent (10%) at any single time, stock split,
combination of shares, exchange of shares, change in corporate
structure or otherwise), appropriate adjustments shall be made in:
(i) the number of shares of Common Stock theretofore made subject
to Stock Options, and in the purchase price of said shares; and
(ii) the aggregate number of shares which may be made subject to
Stock Options. If any of the foregoing adjustments shall result in
a fractional share, the fraction shall be disregarded, and the
Company shall have no obligation to make any cash or other payment
with respect to such a fractional share.
VII. Exercise of Stock Options
4
<PAGE>
7.1 Time of Exercise. Subject to the provisions of the Plan, the
----------------
Committee, in its discretion, shall determine the time when a
Stock Option, or a portion of a Stock Option, shall become
exercisable, and the time when a Stock Option, or a portion of a
Stock Option, shall expire. Such time or times shall be set forth
in the Option Agreement evidencing such Stock Option. Unless
otherwise determined by the Committee, a Stock Option shall become
exercisable in four equal installments on the first four
anniversaries of the date of grant. A Stock Option shall expire,
to the extent not exercised, no later than the tenth anniversary
of the date on which it was granted. The Committee may accelerate
the vesting of any Participant's Stock Option by giving written
notice to the Participant. Upon receipt of such notice, the
Participant and the Company shall amend the Option Agreement to
reflect the new vesting schedule. Unless otherwise determined by
the Committee, the acceleration of the exercise period of a Stock
Option shall not affect the expiration date of that Stock Option.
7.2 Exchange of Outstanding Stock. The Committee, in its sole
-----------------------------
discretion, may permit a Participant to surrender to the Company
shares of the Common Stock previously acquired by the Participant
as part of full payment for the exercise of a Stock Option. Such
surrendered shares shall be valued at their Fair Market Value on
the date of exercise. Unless otherwise determined by the
Committee, any such shares surrendered by the Participant shall
have been held by him for at least six months prior to surrender.
7.3 Stock Restriction Agreement. The Committee may provide that
---------------------------
shares of Common Stock issuable upon the exercise of a Stock
Option shall, under certain conditions, be subject to restrictions
whereby the Company has a right of first refusal with respect to
such shares or a right or obligation to repurchase all or a
portion of such shares, which restrictions may survive a
Participant's term of employment with the Company. The
acceleration of the time or times at which the Stock Option
becomes exercisable may be conditioned upon the Participant's
agreement to such restrictions.
7.4 Termination of Employment Before Exercise. If a Participant's
-----------------------------------------
employment with the Company or a Participating Subsidiary shall
terminate for any reason other than the Participant's disability,
any Stock Option then held by the Participant, to the extent then
exercisable under the applicable Option Agreement(s), shall remain
exercisable after the termination of his employment for a period
of three months. If the Participant's employment is terminated
because the Participant is disabled within the meaning of Section
22(e)(3) of the Code, any Stock Option then
5
<PAGE>
held by the Participant, to the extent then exercisable under the
applicable Option Agreement(s), shall remain exercisable after the
termination of his employment for a period of twelve months (but
in no event beyond ten years from the date of grant of the Stock
Option). If the Stock Option is not exercised during the
applicable period, it shall be deemed to have been forfeited and
of no further force or effect.
7.5 Disposition of Forfeited Stock Options. Any shares of Common
--------------------------------------
Stock subject to Stock Options forfeited by a Participant shall
not thereafter be eligible for purchase by the Participant but may
be made subject to Stock Options granted to other Participants.
VIII. No Contract of Employment
Nothing in this Plan shall confer upon the Participant the right to
continue in the employ of the Company, or any Participating Subsidiary,
nor shall it interfere in any way with the right of the Company, or any
such Participating Subsidiary, to discharge the Participant at any time
for any reason whatsoever, with or without cause. Nothing in this
Article VIII shall affect any rights or obligations of the Company or
any Participant under any written contract of employment.
IX. No Rights as a Stockholder
A Participant shall have no rights as a stockholder with respect to any
shares of Common Stock subject to a Stock Option. Except as provided
in Section 6.2, no adjustment shall be made in the number of shares of
Common Stock issued to a Participant, or in any other rights of the
Participant upon exercise of a Stock Option by reason of any dividend,
distribution or other right granted to stockholders for which the
record date is prior to the date of exercise of the Participant's Stock
Option.
X. Assignability
No Stock Option granted under this Plan, nor any other rights acquired
by a Participant under this Plan, shall be assignable or transferable
by a Participant, other than by will or the laws of descent and
distribution, and are exercisable, during his lifetime, only by him.
Notwithstanding the preceding sentence, the Committee may, in its sole
discretion, permit the assignment or transfer of an NSO and the
exercise thereof by a person other than a Participant, on such terms
and conditions as the Committee in its sole discretion may determine.
Any such terms shall be determined at the time the NSO is granted, and
shall be set forth in the Option Agreement. In the event of his death,
the Stock Option may be exercised by the Personal Representative of the
Participant's estate or, if no
6
<PAGE>
Personal Representative has been appointed, by the successor or
successors in interest determined under the Participant's will or under
the applicable laws of descent and distribution.
XI. Amendment
The Board may from time to time alter, amend, suspend or discontinue
the Plan, including, where applicable, any modifications or amendments
as it shall deem advisable in order that ISOs will be classified as
incentive stock options under the Code, or in order to conform to any
regulation or to any change in any law or regulation applicable
thereto; provided, however, that no such action shall adversely affect
the rights and obligations with respect to Stock Options at any time
outstanding under the Plan.
XII. Registration of Optioned Shares
The Stock Options shall not be exercisable unless the purchase of such
optioned shares is pursuant to an applicable effective registration
statement under the Securities Act of 1933, as amended, or unless, in
the opinion of counsel to the Company, the proposed purchase of such
optioned shares would be exempt from the registration requirements of
the Securities Act of 1933, as amended, and from the registration or
qualification requirements of applicable state securities laws.
XIII. Withholding Taxes
The Company or Participating Subsidiary may take such steps as it may
deem necessary or appropriate for the withholding of any taxes which
the Company or the Participating Subsidiary is required by any law or
regulation or any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with any Stock
Option, including, but not limited to, the withholding of all or any
portion of any issuance of shares of Common Stock upon the exercise of
any Stock Option until the Participant reimburses the Company or
Participating Subsidiary for the amount the Company or Participating
Subsidiary is required to withhold with respect to such taxes, or
cancelling any portion of such issuance in an amount sufficient to
reimburse itself for the amount it is required to so withhold.
XIV. Brokerage Arrangements
The Committee, in its discretion, may enter into arrangements with one
or more banks, brokers or other financial institutions to facilitate
the disposition of shares acquired upon exercise of Stock Options,
including, without limitation,
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<PAGE>
arrangements for the simultaneous exercise of Stock Options and sale of
the shares acquired upon such exercise.
XV. Nonexclusivity of the Plan
Neither the adoption of the Plan by the Board nor the submission of the
Plan to stockholders of the Company for approval shall be construed as
creating any limitations on the power or authority of the Board to
adopt such other or additional incentive or other compensation
arrangements of whatever nature as the Board may deem necessary or
desirable or preclude or limit the continuation of any other plan,
practice or arrangement for the payment of compensation or fringe
benefits to employees generally, or to any class or group of employees,
which the Company or any Subsidiary now has lawfully put into effect,
including, without limitation, any retirement, pension, savings and
stock purchase plan, insurance, death and disability benefits and
executive short-term incentive plans.
XVI. Effective Date
This Plan was adopted by the Board of Directors and became effective on
August 28, 1990, and was approved by the Company's stockholders on
November 16, 1990. No Stock Options shall be granted subsequent to ten
years after the effective date of the Plan. Stock Options outstanding
subsequent to ten years after the effective date of the Plan shall
continue to be governed by the provisions of the Plan.
8
<PAGE>
Exhibit 4.3
McDATA CORPORATION
1990 CLASS B STOCK OPTION PLAN
(As approved by the Board of Directors
on July 27, 1990, and by the
Stockholders on November 16, 1990)
I. Purpose
The McDATA Corporation 1990 Class B Stock Option Plan ("Plan") provides
for the grant of Stock Options to Employees of McDATA Corporation (the
"Company"), and such of its subsidiaries (as defined in Section 425(f)
of the Internal Revenue Code of 1986 (the "Code")) as the Board of
Directors of the Company (the "Board") shall from time to time
designate ("Participating Subsidiaries"), in order to advance the
interests of the Company and its Participating Subsidiaries through the
motivation, attraction and retention of their respective Employees.
II. Incentive Stock Options and Non-Incentive Stock Options
The Stock Options granted under the Plan may be either:
(a) Incentive Stock Options ("ISOs") which are intended to be
"Incentive Stock Options" as that term is defined in Section 422A
of the Code; or
(b) Nonstatutory Stock Options ("NSOs") which are intended to be
options that do not qualify as "Incentive Stock Options" under
Section 422A of the Code.
All Stock Options shall be ISOs unless the Option Agreement clearly
designates the Stock Options granted thereunder, or a specified portion
thereof, as NSOs or unless the stockholders of the Company do not
approve the Plan within twelve months after the Plan is adopted by the
Board. If the Plan is not approved by the stockholders of the Company
within twelve months after the Plan is adopted by the Board, any ISO
granted under the Plan shall be treated as an NSO as of the original
date of grant, but all other terms and conditions of such Stock Options
shall continue in effect. Subject to the other provisions of the Plan,
a Participant may receive ISOs and NSOs at the same time, provided that
the ISOs and NSOs are clearly designated as such.
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Except as otherwise expressly provided herein, all of the provisions
and requirements of the Plan relating to Stock Options shall apply to
ISOs and NSOs.
III. Administration
3.1 Committee. The Plan shall be administered by a committee
---------
("Committee") composed of at least two members of the Board of
Directors. The Board of Directors may reserve to itself any of the
authority granted to the Committee as set forth herein, and it may
perform and discharge all of the functions and responsibilities of
the Committee at any time that a duly constituted Committee is not
appointed and serving. All references in this Plan to the
"Committee" shall be deemed to refer to the Board of Directors
whenever the Board is discharging the powers and responsibilities
of the Committee. The Committee or the Board, as the case may be,
shall have full authority to administer the Plan, including
authority to interpret and construe any provision of the Plan and
any Stock Option granted thereunder, and to adopt such rules and
regulations for administering the Plan as it may deem necessary in
order to comply with the requirements of the Code or in order that
Stock Options that are intended to be ISOs will be classified as
incentive stock options under the Code, or in order to conform to
any regulation or to any change in any law or regulation
applicable thereto. The Committee or the Board may delegate any of
its responsibilities under the Plan, other than its responsibility
to grant Stock Options or to interpret and construe the Plan.
3.2 Actions of Committee. All actions taken and all interpretations
--------------------
and determinations made by the Committee in good faith (including
determinations of Fair Market Value) shall be final and binding
upon all Participants, the Company and all other interested
persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith
with respect to the Plan, and all members of the Committee shall,
in addition to their rights as directors, be fully protected by
the Company with respect to any such action, determination or
interpretation.
IV. Definitions
4.1 "Stock Option." A Stock Option is the right granted under the
-------------
Plan to an Employee to purchase, at such time or times and at such
price or prices ("Option Price") as are determined by the
Committee, the number of shares of Common Stock determined by the
Committee.
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4.2 "Common Stock." A share of Common Stock means a share
-------------
of authorized but unissued or reacquired Class B Common Stock
(par value $.001 per share) of the Company.
4.3 "Fair Market Value." If the Common Stock is not traded publicly,
------------------
the Fair Market Value of a share of Common Stock on any date shall
be determined, in good faith, by the Board or the Committee after
such consultation with outside legal, accounting and other experts
as the Board or the Committee may deem advisable, and the Board or
the Committee shall maintain a written record of its method of
determining such value. If the Common Stock is traded publicly,
the Fair Market Value of a share of Common Stock on any date shall
be the average of the representative closing bid and asked prices,
as quoted by the National Association of Securities Dealers
through NASDAQ (its automated system for reporting quotes), for
the date in question or, if the Common Stock is listed on the
NASDAQ National Market System or is listed on a national stock
exchange, the officially quoted closing price on NASDAQ or such
exchange, as the case may be, on the date in question.
4.4 "Employee". An Employee is an employee of the Company or any
---------
Participating Subsidiary.
4.5 "Participant". A Participant is an Employee to whom a Stock
------------
Option is granted.
V. Eligibility and Participation
Grants of Stock Options may be made to Employees of the Company or any
Participating Subsidiary. Any Director of the Company or of a
Participating Subsidiary who is also an Employee shall also be eligible
to receive Stock Options, but Directors who are not Employees shall not
be eligible to receive Stock Options under the Plan. The Committee
shall from time to time determine the Employees to whom Stock Options
shall be granted, the number of shares of Common Stock subject to each
Stock Option to be granted to each such Employee, the Option Price of
such Stock Options, all as provided in this Plan. The Option Price of
any ISO shall be not less than the Fair Market Value of a share of
Common Stock on the date on which the Stock Option is granted. The
Option Price of an NSO shall not be less than 50% of the Fair Market
Value of a share of Common Stock on the date the NSO is granted. If an
ISO is granted to an Employee who then owns stock possessing more than
10% of the total combined voting power of all classes of stock of the
Company or any parent or subsidiary corporation of the Company, the
Option Price of
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such ISO shall be at least 110% of the Fair Market Value of the Common
Stock subject to the ISO at the time such ISO is granted, and such ISO
shall not be exercisable after five years after the date on which it
was granted. Each Stock Option shall be evidenced by a written
agreement ("Option Agreement") containing such terms and provisions as
the Committee may determine, subject to the provisions of this Plan.
VI. Shares of Common Stock Subject to the Plan
6.1 Maximum Number. The maximum aggregate number of shares of Common
--------------
Stock that may be made subject to stock options under this Plan
shall be 1,500,000 shares; provided that such number of shares
shall be reduced by the number of shares subject to outstanding
options under the Company's 1988 Incentive Stock Option Plan and
Director Stock Option Plan, and by the number of shares issued
under the Company's Employee Stock Purchase Plan and 401(k) Plan.
To the extent that if the aggregate Fair Market Value (determined
as of the time a Stock Option is granted) of the Common Stock
subject to a Stock Option that first becomes exercisable in a
particular calendar year exceeds $100,000, the Stock Option shall
be treated as an NSO with respect to the portion of such shares
having a Fair Market Value in excess of $100,000. If any shares of
Common Stock subject to Stock Options are not purchased or
otherwise paid for before such Stock Options expire, such shares
may again be made subject to Stock Options.
6.2 Capital Changes. In the event any changes are made to the
---------------
outstanding shares of Common Stock (whether by reason of merger,
consolidation, reorganization, recapitalization, stock dividend in
excess of ten percent (10%) at any single time, stock split,
combination of shares, exchange of shares, change in corporate
structure or otherwise), appropriate adjustments shall be made in:
(i) the number of shares of Common Stock theretofore made subject
to Stock Options, and in the purchase price of said shares; and
(ii) the aggregate number of shares which may be made subject to
Stock Options. If any of the foregoing adjustments shall result in
a fractional share, the fraction shall be disregarded, and the
Company shall have no obligation to make any cash or other payment
with respect to such a fractional share. VII. Exercise of Stock
Options
VII. Exercise of Stock Options
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<PAGE>
7.1 Time to Exercise. Subject to the provisions of the Plan, the
----------------
Committee, in its discretion, shall determine the time when a
Stock Option, or a portion of a Stock Option, shall become
exercisable, and the time when a Stock Option, or a portion of a
Stock Option, shall expire. Such time or times shall be set forth
in the Option Agreement evidencing such Stock Option. Unless
otherwise determined by the Committee, a Stock Option shall become
exercisable in four equal installments on the first four
anniversaries of the date of grant. A Stock Option shall expire,
to the extent not exercised, no later than the tenth anniversary
of the date on which it was granted. The Committee may accelerate
the vesting of any Participant's Stock Option by giving written
notice to the Participant. Upon receipt of such notice, the
Participant and the Company shall amend the Option Agreement to
reflect the new vesting schedule. Unless otherwise determined by
the Committee, the acceleration of the exercise period of a Stock
Option shall not affect the expiration date of that Stock Option.
7.2 Exchange of Outstanding Stock. The Committee, in its sole
-----------------------------
discretion, may permit a Participant to surrender to the Company
shares of the Common Stock previously acquired by the Participant
as part of full payment for the exercise of a Stock Option. Such
surrendered shares shall be valued at their Fair Market Value on
the date of exercise. Unless otherwise determined by the
Committee, any such shares surrendered by the Participant shall
have been held by him for at least six months prior to surrender.
7.3 Stock Restriction Agreement. The Committee may provide that
---------------------------
shares of Common Stock issuable upon the exercise of a Stock
Option shall, under certain conditions, be subject to restrictions
whereby the Company has a right of first refusal with respect to
such shares or a right or obligation to repurchase all or a
portion of such shares, which restrictions may survive a
Participant's term of employment with the Company. The
acceleration of the time or times at which the Stock Option
becomes exercisable may be conditioned upon the Participant's
agreement to such restrictions.
7.4 Termination of Employment Before Exercise. If a Participant's
-----------------------------------------
employment with the Company or a Participating Subsidiary shall
terminate for any reason other than the Participant's disability,
any Stock Option then held by the Participant, to the extent then
exercisable under the applicable Option Agreements), shall remain
exercisable after the termination of his employment for a period
of three months. If the Participant's employment is terminated
because the Participant is
5
<PAGE>
disabled within the meaning of Section 22(e)(3) of the Code, any
Stock Option then held by the Participant, to the extent then
exercisable under the applicable Option Agreement(s), shall remain
exercisable after the termination of his employment for a period
of twelve months (but in no event beyond ten years from the date
of grant of the Stock Option). If the Stock Option is not
exercised during the applicable period, it shall be deemed to have
been forfeited and of no further force or effect.
7.5 Disposition of Forfeited Stock Options. Any shares of Common
--------------------------------------
Stock subject to Stock Options forfeited by a Participant shall
not thereafter be eligible for purchase by the Participant but may
be made subject to Stock Options granted to other Participants.
VIII. No Contract of Employment
Nothing in this Plan shall confer upon the Participant the right to
continue in the employ of the Company, or any Participating Subsidiary,
nor shall it interfere in any way with the right of the Company, or any
such Participating Subsidiary, to discharge the Participant at any time
for any reason whatsoever, with or without cause. Nothing in this
Article VIII shall affect any rights or obligations of the Company or
any Participant under any written contract of employment.
IX. No Rights as a Stockholder
A Participant shall have no rights as a stockholder with respect to any
shares of Common Stock subject to a Stock Option. Except as provided
in Section 6.2, no adjustment shall be made in the number of shares of
Common Stock issued to a Participant, or in any other rights of the
Participant upon exercise of a Stock Option by reason of any dividend,
distribution or other right granted to stockholders for which the
record date is prior to the date of exercise of the Participant's Stock
Option.
X. Assignability
No Stock Option granted under this Plan, nor any other rights acquired
by a Participant under this Plan, shall be assignable or transferable
by a Participant, other than by will or the laws of descent and
distribution, and are exercisable, during his lifetime, only by him.
Notwithstanding the preceding sentence, the Committee may, in its sole
discretion, permit the assignment or transfer of an NSO and the
exercise thereof by a person other than a Participant, on such terms
and conditions as the Committee in its sole discretion may determine.
Any such terms shall be determined at the time the NSO is granted, and
shall
6
<PAGE>
be set forth in the Option Agreement. In the event of his death,
the Stock Option may be exercised by the Personal Representative of the
Participant's estate or, if no Personal Representative has been
appointed, by the successor or successors in interest determined under
the Participant's will or under the applicable laws of descent and
distribution.
XI. Amendment
The Board may from time to time alter, amend, suspend or discontinue
the Plan, including, where applicable, any modifications or amendments
as it shall deem advisable in order that ISOs will be classified as
incentive stock options under the Code, or in order to conform to any
regulation or to any change in any law or regulation applicable
thereto; provided, however, that no such action shall adversely affect
the rights and obligations with respect to Stock Options at any time
outstanding under the Plan.
XII. Registration of Optioned Shares
The Stock Options shall not be exercisable unless the purchase of such
optioned shares is pursuant to an applicable effective registration
statement under the Securities Act of 1933, as amended, or unless, in
the opinion of counsel to the Company, the proposed purchase of such
optioned shares would be exempt from the registration requirements of
the Securities Act of 1933, as amended, and from the registration or
qualification requirements of applicable state securities laws.
XIII. Withholding Taxes
The Company or Participating Subsidiary may take such steps as it may
deem necessary or appropriate for the withholding of any taxes which
the Company or the Participating Subsidiary is required by any law or
regulation or any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with any Stock
Option, including, but not limited to, the withholding of all or any
portion of any issuance of shares of Common Stock upon the exercise of
any Stock Option until the Participant reimburses the Company or
Participating Subsidiary for the amount the Company or Participating
Subsidiary is required to withhold with respect to such taxes, or
cancelling any portion of such issuance in an amount sufficient to
reimburse itself for the amount it is required to so withhold.
XIV. Brokerage Arrangements
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<PAGE>
The Committee, in its discretion, may enter into arrangements with one
or more banks, brokers or other financial institutions to facilitate
the disposition of shares acquired upon exercise of Stock Options,
including, without limitation, arrangements for the simultaneous
exercise of Stock Options and sale of the shares acquired upon such
exercise.
XV. Nonexclusivity of the Plan
Neither the adoption of the Plan by the Board nor the submission of the
Plan to stockholders of the Company for approval shall be construed as
creating any limitations on the power or authority of the Board to
adopt such other or additional incentive or other compensation
arrangements of whatever nature as the Board may deem necessary or
desirable or preclude or limit the continuation of any other plan,
practice or arrangement for the payment of compensation or fringe
benefits to employees generally, or to any class or group of employees,
which the Company or any Subsidiary now has lawfully put into effect,
including, without limitation, any retirement, pension, savings and
stock purchase plan, insurance, death and disability benefits and
executive short-term incentive plans.
XVI. Effective Date
This Plan was adopted by the Board of Directors and became effective on
July 27, 1990, and was approved by the Company's stockholders on
November 16, 1990. No Stock Options shall be granted subsequent to ten
years after the effective date of the Plan. Stock Options outstanding
subsequent to ten years after the effective date of the Plan shall
continue to be governed by the provisions of the Plan.
8
<PAGE>
Exhibit 5.1
February 23, 1996
EMC Corporation
171 South Street
Hopkinton, Massachusetts 01748
Ladies and Gentlemen:
I am General Counsel of EMC Corporation, a Massachusetts corporation (the
"Company"), and in such capacity have examined the Company's Registration
Statement on Form S-8 (the "Registration Statement"), being filed with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of the offering of a maximum of 493,400
shares (the "Shares") of the Company's Common Stock, to be issued pursuant to
the McDATA Corporation 1990 Class A Stock Option Plan and the McDATA 1990 Class
B Stock Option Plan (collectively, the "Plans"). I am familiar with the
proceedings undertaken by the Company in connection with the authorization,
reservation and registration of the Shares. Additionally, I have examined such
questions of law and fact as I have considered necessary or appropriate for
purposes of this opinion.
Based on the foregoing, I am of the opinion that the Shares have been duly
authorized and, upon issuance, delivery and payment therefor as contemplated by
the Plans, will be validly issued, fully paid and nonassessable.
I hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Paul T. Dacier
Paul T. Dacier
Vice President and General Counsel
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the registration of 493,400 shares of Common Stock, $0.01
par value, of EMC Corporation authorized for issuance pursuant to the McDATA
1990 Class A Stock Option Plan and the McDATA 1990 Class B 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
February 27, 1996
