As filed with the Securities and Exchange Commission on September 8, 1998
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
EMC CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS
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(State or Other Jurisdiction of Incorporation or Organization)
04-2680009
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(I.R.S. Employer Identification No.)
35 Parkwood Drive, Hopkinton,
Massachusetts 01748
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(Address of Principal Executive Offices) (Zip Code)
CONLEY CORPORATION
1994 STOCK OPTION PLAN
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(Full Title of the Plans)
Paul T. Dacier, Esq.
Vice President and General
Counsel
EMC Corporation
171 South Street
Hopkinton, MA 01748
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(Name and address of agent for Service)
(508) 435-1000
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(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Offering Registration
Registered Registered Price Price Fee
Common Stock, 200,000 (1) $15.84(2) $3,168,000(3) $934.56
$.01 par
value per share
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(1) This Registration Covers 200,000 shares of Common Stock that may be
issued upon exercise of options granted under the Conley Corporation
1994 Stock Option Plan. In addition, this Registration Statement also
covers an indeterminate number of additional shares of Common Stock
which may be issued under said Plan pursuant to the antidilution
provisions of such Plan.
(2) Calculated based on the average price at which options may be exercised.
(3) Calculated based on the average price at which options may be exercised
pursuant to Rule 457(h).
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3: Incorporation of Documents by Reference
The following documents are incorporated by reference in this
Registration Statement:
(a) The undersigned Registrant's Annual Report filed on Form 10-K for
the fiscal year ended December 31, 1997, as amended by the
Registrant's Annual Report filed on Form 10-K/A for the fiscal year
ended December 31, 1997;
(b) All other reports previously filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since December 31, 1997;
(c) The description of the Registrant's common stock contained in the
Company's registration statement on form 8-A, dated March 4, 1988;
and
(d) 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
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part thereof
from the date of filing of such documents.
Item 4: Description of Securities
Not applicable.
Item 5: Interests of Named Experts or Counsel
Not applicable.
Item 6: Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides that a Massachusetts corporation may indemnify its
officers and directors and certain other persons to the extent and under the
circumstances set forth therein.
The By-laws of the Registrant provide for indemnification of officers and
directors of the Registrant and certain other persons against liabilities and
expenses incurred by any of them in certain stated proceedings and under
certain stated conditions.
Item 7: Exemption from Registration Claimed
Not applicable.
<PAGE>
Item 8: Exhibits
The following exhibits are filed as part of or incorporated by reference
into this Registration Statement:
4.1 Conley Corporation 1994 Stock Option Plan.
5 Opinion of Bingham Dana LLP as to the legality of the securities being
registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney.
Item 9: Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4) 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 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(5) 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 Securities Act of 1933 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.
<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 Hopkinton, Massachusetts, on the 8th day of September
1998.
EMC CORPORATION
By: /s/ WILLIAM J. TEUBER, JR.
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William J. Teuber, Jr.
Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT each person whose signature appears
below severally constitutes and appoints Colin G. Patteson, William J. Teuber,
Jr. and Paul T. Dacier, and each of them singly, with the power to act without
the other, as attorneys-in-fact, each with the power of substitution, for him
or her in any and all capacities, to sign any amendment to this Registration
Statement and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting to
said attorneys-in-fact, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
or any of them, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ RICHARD J. EGAN Chairman of the Board of September 8, 1998
- ------------------------- Directors
Richard J. Egan (Principal Executive Officer)
/s/ MICHAEL C. RUETTGERS President and Chief Executive September 8, 1998
- ------------------------- Officer and Director
Michael C. Ruettgers
/s/ COLIN G. PATTESON Senior Vice President, Chief September 8, 1998
- ------------------------- Administrative Officer and
Colin G. Patteson Treasurer
(Principal Financial Officer)
/s/ WILLIAM J. TEUBER, JR. Vice President and Chief September 8, 1998
- ------------------------- Financial Officer
William J. Teuber, Jr. (Principal Accounting Officer)
<PAGE>
/s/ MICHAEL J. CRONIN Director September 8, 1998
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Michael J. Cronin
/s/ JOHN F. CUNNINGHAM Director September 8, 1998
- -------------------------
John F. Cunningham
/s/ JOHN R. EGAN Director September 8, 1998
- -------------------------
John R. Egan
/s/ MAUREEN E. EGAN Director September 8, 1998
- -------------------------
Maureen E. Egan
/s/ W. PAUL FITZGERALD Director September 8, 1998
- -------------------------
W. Paul Fitzgerald
/s/ JOSEPH F. OLIVERI Director September 8, 1998
- -------------------------
Joseph F. Oliveri
<PAGE>
EXHIBIT INDEX
4.1 Conley Corporation 1994 Stock Option Plan.
5 Opinion of Bingham Dana LLP as to the legality of the securities being
registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (Contained in Part II of this Registration Statement).
Exhibit 4.1
CONLEY CORPORATION
1994 STOCK OPTION PLAN
ARTICLE 1. ESTABLISHMENT AND PURPOSE
1.1 Establishment. Conley Corporation (the "Company") hereby establishes
a plan providing for the grant of stock options to certain eligible employees,
directors and consultants of the Company and its subsidiaries. This plan shall
be known as the 1994 Stock Option Plan (the "Plan").
1.2 Purpose. The purpose of the Plan is to advance the interests of the
Company and its shareholders by enabling the Company to attract and retain
persons of ability as employees, directors and consultants, by providing an
incentive to such individuals through equity participation in the Company and
by rewarding such individuals who contribute to the achievement by the Company
of its long-term economic objectives.
ARTICLE 2. DEFINITIONS
The following terms shall have the meanings set forth below, unless the
context clearly otherwise requires:
2.1 "Board" means the Board of Directors of the Company.
2.2 "Change in Control" means an event described in Article 11 below.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Committee" means the entity administering the Plan, as provided in
Article 3 below.
2.5 "Common Stock" means the common stock of the Company, par value $.01
per share, or the number and kind of shares of stock or other securities into
which such Common Stock may be changed in accordance with Section 4.3 below.
2.6 "Disability" means the occurrence of an event which constitutes
permanent and total disability within the meaning of Section 22(e)(3) of the
Code.
<PAGE>
2.7 "Eligible Persons" means individuals who are (a) salaried employees
(including, without limitation, officers and directors who are also employees)
of the Company, (b) Non-Employee Directors, or (c) consultants to the Company.
2.8 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.9 "Fair Market Value" means, with respect to the Common Stock, as of
any date:
(a) if the Common Stock is listed or admitted to unlisted trading
privileges on any national securities exchange or is not so listed or
admitted but transactions in the Common Stock are reported on the NASDAQ
National Market System, the mean between the reported high and low sale
prices of the Common Stock on such exchange or by the NASDAQ National
Market System as of such date (or, if no shares were traded on such day,
as of the next preceding day on which there was such a trade); or
(b) if the Common Stock is not listed or admitted to unlisted
trading privileges or reported on the NASDAQ National Market System, and
bid and asked prices therefor in the overthecounter market are reported
by the NASDAQ System or the National Quotation Bureau, Inc. (or any
comparable reporting service), the mean of the closing bid and asked
prices as of such date, as reported by the NASDAQ System, or, if not
reported thereon, as reported by the National Quotation Bureau, Inc. (or
a comparable reporting service); or
(c) if the Common Stock is not listed or admitted to unlisted
trading privileges, or reported on the NASDAQ National Market System, and
bid and asked prices are not reported, the price that the Committee
determines in good faith in the exercise of its reasonable discretion.
The Committee's determination as to the current value of the Common Stock
shall be final, conclusive and binding for all purposes and on all
persons, including, without limitation, the Company, the shareholders of
the Company, the Optionees and their respective successors-in-interest.
No member of the Board of the Committee shall be liable for any
determination regarding current value of the Common Stock that is made in
good faith.
2.10 "Incentive Stock Option" means a right to purchase Common Stock
granted to an Optionee pursuant to Section 6.5 of the Plan that qualifies as an
incentive stock option within the meaning of Section 422 of the Code.
2.11 "Non-Employee Director" means any member of the Board who is not an
employee of the Company or any Subsidiary.
<PAGE>
2.12 "Non-Statutory Stock Option" means a right to purchase Common Stock
granted to an Optionee pursuant to Section 6.6 of the Plan that does not
qualify as an Incentive Stock Option.
2.13 "Option" means an Incentive Stock Option or a Non-Statutory Stock
Option.
2.14 "Optionee" means an Eligible Person who receives one or more
Incentive Stock Options or Non-Statutory Stock Options under the Plan.
2.15 "Person" means any individual, corporation, partnership, group,
association or other "person" (as such term is used in Section 14(d) of the
Exchange Act), other than the Company, a wholly owned subsidiary of the Company
or any employee benefit plan sponsored by the Company.
2.16 "Retirement" means the retirement of an Optionee pursuant to and in
accordance with the regular retirement plan or practice of the Company or the
Subsidiary employing the Optionee.
2.17 "Securities Act" means the Securities Act of 1933, as amended.
2.18 "Subsidiary" means any corporation that is a subsidiary corporation
of the Company (within the meaning of Section 424(f) of the Code).
2.19 "Tax Date" means a date defined in Section 6.6(c) of the Plan.
ARTICLE 3. PLAN ADMINISTRATION
The Plan shall be administered by the Board or by a Committee of the
Board consisting of not less then three persons; provided, however, that from
and after the date on which the Company first registers a class of its equity
securities under Section 12 of the Exchange Act the Plan shall be administered
by the Board, a majority of which Board and a majority of whom acting on any
matter under the Plan shall be "disinterested persons" as defined by Rule 16b-3
of the Rules and Regulations of the Securities and Exchange Commission, as
amended ("Rule 16b-3") or by a Committee consisting solely of not less than
three members of the Board who are "disinterested persons" within the meaning
of Rule 16b-3. Members of a Committee, if established, shall be appointed from
time to time by the Board, shall serve at the pleasure of the Board and may
resign at any time upon written notice to the Board. A majority of the members
of the Committee shall constitute a quorum. The Committee shall act by majority
approval of its members, shall keep minutes of its meetings and shall provide
copies of such minutes to the Board. Action of the Committee may be taken
without a meeting if unanimous written consent thereto is given. Copies of
minutes of the Committee's meetings and of its actions by written consent shall
<PAGE>
be provided to the Board and kept with the corporate records of the Company. As
used in this Plan, the term "Committee" will refer either to the Board or to
such a Committee, if established. From and after the date on which the Company
first registers a class of its equity securities under Section 12 of the
Exchange Act, no member of the Committee shall be eligible, or shall have been
eligible at any time within the lesser of one year or the period since the
Company first registered a class of its equity securities under Section 12 of
the Exchange Act, to receive an Incentive Stock Option or a NonStatutory Stock
Option under the Plan.
In accordance with the provisions of the Plan, the Committee shall select
the Optionees from Eligible Persons; shall determine the number of shares of
Common Stock to be subject to Options granted pursuant to the Plan, the time at
which such Options are granted, the Option exercise price, Option period and
the manner in which each such Option vests or becomes exercisable; and shall
fix such other provisions of such Options as the Committee may deem necessary
or desirable and as consistent with the terms of the Plan. The Committee shall
determine the form or forms of the agreements with Optionees which shall
evidence the particular terms, conditions, rights and duties of the Company and
the Optionees under Options granted pursuant to the Plan. The Committee shall
have the authority, subject to the provisions of the Plan, to establish, adopt
and revise such rules and regulations relating to the Plan as it may deem
necessary or advisable for the administration of the Plan. With the consent of
the Optionee affected thereby, the Committee may amend or modify the terms of
any outstanding Incentive Stock Option or NonStatutory Stock Option in any
manner, provided that the amended or modified terms are permitted by the Plan
as then in effect. Without limiting the generality of the foregoing sentence,
the Committee may, with the consent of the Optionee affected thereby, modify
the exercise price, number of shares or other terms and conditions of an
Incentive Award, extend the term of an Incentive Award, accelerate the
exercisability or vesting or otherwise terminate any restrictions relating to
an Incentive Award, extend, renew or accept the surrender of any outstanding
Incentive Stock Option or NonStatutory Stock Option, to the extent not
previously exercised, and the Committee may authorize the grant of new Options
in substitution therefor to the extent not previously exercised.
Each determination, interpretation or other action made or taken by the
Committee pursuant to the provisions of the Plan shall be conclusive and
binding for all purposes and on all persons, including, without limitation, the
Company and its Subsidiaries, the shareholders of the Company, the Committee
and each of the members thereof, the directors, officers and employees of the
Company and its Subsidiaries, and the Optionees and their respective successors
in interest. No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option granted
under the Plan.
<PAGE>
ARTICLE 4. SHARES SUBJECT TO THE PLAN.
4.1 Number. The maximum number of shares of Common Stock that shall be
reserved for issuance under The Plan shall be 500,000, subject to adjustment
upon changes in capitalization of the Company as provided in Section 4.3 below.
The maximum number of shares authorized may be increased from time to time by
approval of the Board and, if required pursuant to Rule 16b-3 under the
Exchange Act, Section 422A of the Code, or the rules of any securities exchange
or the NASD, the shareholders of the Company. Shares of Common Stock that may
be issued upon exercise of Options shall be applied to reduce the maximum
number of shares of Common Stock remaining available for use under the Plan.
4.2 Unused Stock. Any shares of Common Stock that are subject to an
Option (or any portion thereof) that lapses, expires or for any reason is
terminated unexercised shall automatically again become available for use under
the Plan.
4.3 Change in Shares, Adjustments, Etc. If the number of outstanding
shares of Common Stock is increased or decreased or changed into or exchanged
for a different number or kind of shares of stock or other securities of the
Company or of another corporation by reason of any reorganization, merger,
consolidation, recapitalization, reclassification, stock dividend, stock split,
combination of shares, rights offering or any other change in the corporate
structure or shares of the Company, the Committee (or, if the Company is nor
the surviving corporation in any such transaction, the board of directors of
the surviving corporation) shall make appropriate adjustment as to the number
and kind of securities subject to and reserved under the Plan and, in order to
prevent dilution or enlargement of the rights of Optionees, the number and kind
of securities subject to outstanding Options. Any such adjustment in any
outstanding Option shall be made without change in the aggregate purchase price
applicable to the unexercised portion of the Option but with an appropriate
adjustment in the price for each share or other unit of any security covered by
the Option. However, no change shall be made in the terms of any outstanding
Incentive Stock Option as a result of any such change in the corporate
structure or shares of the Company, without the consent of the Optionee
affected thereby, that would disqualify that Incentive Stock Option from
treatment under Section 422 of the Code or would be considered a modification,
extension or renewal of an option under Section 424(h) of the Code.
ARITCLE 5. ELIGIBILITY
Incentive Stock Options or Non-Statutory Stock Options shall be granted
only to those Eligible Persons who, in the judgment of the Committee, are
performing, or during the term of an Option, will perform, vital services in
the management, operation and development of the Company or a Subsidiary, and
significantly contribute or are expected to significantly contribute to the
<PAGE>
achievement of long-term corporate economic objectives. Optionee may be granted
from time to time one or more Incentive Stock Options and/or Non-Statutory
Stock Options under the Plan, provided that only employees of the Company or a
Subsidiary may be granted Incentive Stock Options under the Plan, in any case
as may be determined by the Committee in its sole discretion. The number, type,
terms and conditions of Options granted to various Eligible Persons need not be
uniform, consistent or in accordance with any plan, whether or not such
Eligible Persons are similarly situated. The Committee may grant both an
Incentive Stock Option and a Non-Statutory Stock Option to the same Optionee at
the same time or at different times. Incentive Stock Options and NonStatutory
Stock Options, whether granted at the same or different times, shall be deemed
to have been awarded in separate grants, shall be clearly identified, and in no
event will the exercise of one Option affect the right to exercise any other
Option or affect the number of shares of Common Stock for which any other
Option may be exercised. Upon determination by the Committee that an Option is
to be granted to an Optionee, written notice shall be given such person
specifying such terms, conditions, rights and duties related thereto. Each
Optionee shall enter into an agreement with the Company, in such form as the
Committee shall determine and which is consistent with the provisions of the
Plan, specifying the terms, conditions, rights and duties of Incentive Stock
Options and NonStatutory Stock Options granted under the Plan. Options shall be
deemed to be granted as of the date specified in the grant resolution of the
Committee, which date shall be the date of the related agreement with the
Optionee.
ARITCLE 6. DURATION AND EXERCISE
6.1 Manner of Option Exercise. An Option may be exercised by an Optionee
in whole or in part from time to time, subject to the conditions contained
herein and in the agreement evidencing such Option, by delivery, in person or
through certified or registered mail, of written notice of exercise to the
Company at its principal executive office (Attention: Secretary), and by paying
in full the total Option exercise price for the shares of Common Stock
purchased in accordance with Section 6.3. Such notice shall be in a form
satisfactory to the Committee and shall specify the particular Option (or
portion thereof) that is being exercised and the number of shares with respect
to which the Option is being exercised. Subject to Section 9.1, the exercise of
the Option shall be deemed effective upon receipt of such notice and payment.
As soon as practicable after the effective exercise of the Option, the Company
shall record on the stock transfer books of the Company the ownership of the
shares purchased in the name of the Optionee, and the Company shall deliver to
the Optionee one or more duly issued stock certificates evidencing such
ownership.
6.2 Method of Payment of Option Exercise Price. At the time of the
exercise of an Incentive Stock Option or a NonStatutory Stock Option, the
Optionee may determine whether the total purchase price of the shares to be
purchased shall be paid solely in cash or by transfer from the Optionee to the
<PAGE>
Company of previously acquired shares of Common Stock, or by a combination
thereof. In the event the Optionee elects to pay the purchase price in whole or
in part with previously acquired shares of Common Stock, the value of such
shares shall be equal to their Fair Market Value on the date of exercise. The
Committee may reject an Optionee's election to pay all or part of the purchase
price with previously acquired shares of Common Stock and require such purchase
price to be paid entirely in cash if, in the sole discretion of the Committee,
payment in previously acquired shares would cause the Company to be required to
recognize a change to earnings in connection therewith. For purposes of this
Section 6.2, "previously acquired shares" shall include both shares of Common
Stock that are already owned by the Optionee at the time of exercise and shares
of Common Stock that are to be acquired pursuant to the exercise of the Option
concerned. In its sole discretion, the Committee may determine either at the
time of grant or exercise of an Incentive Stock Option or a NonStatutory Stock
Option, to permit a Optionee to pay all or any portion of the purchase price by
delivery of a promissory note in form and substance acceptable to the
Committee.
6.3 Rights as A Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares of Common Stock covered by an Option
until the Optionee shall have become the holder of record of such shares, and
no adjustments shall be made for dividends or other distributions or other
rights as to which there is a record date preceding the date the Optionee
becomes the holder of record except as the Committee may determine pursuant to
Section 4.3.
6.4 Incentive Stock Options.
(a) Incentive Stock Option Exercise Price. The per share price to be
paid by the Optionee at the time an Incentive Stock Option is exercised
will be determined by the Committee, but shall not be less than (i) 100%
of the Fair Market Value of one share of Common Stock on the date the
Option is granted, or (ii) 110% of the Fair Market Value of one share of
Common Stock on the date the Option is granted if, at that time the
Option is granted, the Optionee owns, directly or indirectly (as
determined pursuant to Section 424(d) of the Code), more than 10% of the
total combined voting power of all classes of stock of the Company, any
Subsidiary or any parent corporation of the Company (within the meaning
of Section 424(e) of the Code).
(b) Aggregate Limitation of Stock Subject to Incentive Stock
Options. Notwithstanding any other provision of the Plan, the aggregate
Fair Market Value (determined as of the date an Incentive Stock Option is
granted) of the shares of Common Stock with respect to which incentive
stock options (within the meaning of Section 422 of the Code) are
exercisable for the first time by an Optionee during any calendar year
(under the Plan and any other incentive stock option plans of the
<PAGE>
Company, any Subsidiary or any parent corporation of the Company (within
the meaning of Section 424(e) of the Code)) shall not exceed $100,000 (or
such other amount as may be prescribed by the Code from time to time).
(c) Duration of Incentive Stock Options. The period during which an
Incentive Stock Option may be exercised shall be fixed by the Committee
at the time such Option is granted, but in no event shall such period
exceed ten years from the date the Option is granted or, in the case of
an Optionee that owns, directly or indirectly (as determined pursuant to
Section 424(d) of the Code) more than 10% of the total combined voting
power of all classes of stock of the Company, any Subsidiary or any
parent corporation of the Company (within the meaning of Section 424(e)
of the Code), five years from the date the Incentive Stock Option is
granted. An Incentive Stock Option shall become exercisable at such times
and in such installments (which may be cumulative) as shall be determined
by the Committee at the time the Option is granted. Upon the completion
of its exercise period, an Incentive Stock Option, to the extent not then
exercised, shall expire. Except as otherwise provided in Articles 7 or
11, all Incentive Stock Options granted to an Optionee hereunder shall
terminate and may no longer be exercised if the Optionee ceases to be an
employee of the Company and all Subsidiaries or if the Optionee is an
employee of a Subsidiary and the Subsidiary ceases to be a Subsidiary of
the Company (unless the Optionee continues as an employee of the Company
or another Subsidiary).
(d) Disposition of Common Stock Acquired Pursuant to the Exercise of
Incentive Stock Options. Prior to making a disposition (as defined in
Section 424(c) of the Code) of any shares of Common Stock acquired
pursuant to the exercise of an Incentive Stock Option granted under the
Plan before the expiration of two years after the date on which the
Option was granted or before the expiration of one year after the date on
which such shares of Common Stock were transferred to the Optionee
pursuant to exercise of the Option, the Optionee shall send written
notice to the Company of the proposed date of such disposition, the
number of shares to be disposed of, the amount of proceeds to be received
from such disposition and any other information relating to such
disposition that the Company may reasonably request. The right of an
Optionee to make any such disposition shall be conditioned on the receipt
by the Company of all amounts necessary to satisfy any federal, state or
local withholding tax requirements attributable to such disposition. The
Committee shall have the right, in its sole discretion, to endorse the
certificates representing such shares with a legend restricting transfer
and to cause a stop transfer order to be entered with the Company's
transfer agent until such time as the Company receives the amounts
<PAGE>
necessary to satisfy such withholding requirements or until the later of
the expiration of two years from the date the Option was granted or one
year from the date on which such shares were transferred to the Optionee
pursuant to the exercise of the Option.
(e) Withholding Taxes. The Company is entitled to withhold and
deduct from future wages of the Optionee, or make other arrangements for
the collection of, all legally required amounts necessary to satisfy any
federal, state or local withholding tax requirements attributable to any
action by the Optionee, including, without limitation, a disposition of
shares of Common Stock described in Section 6.4(d) above, that causes the
Incentive Stock Option to cease to qualify as an incentive stock option
within the meaning of Section 422 of the Code.
6.5 Non-Statutory Stock Options.
(a) Option Exercise Price. The per share price to be paid by the
Optionee at the time a Non-Statutory Stock Option is exercised will be
determined by the Committee, but shall not be less than 85% of the Fair
Market Value of one share of Common Stock on the date the Option is
granted.
(b) Duration of Non-Statutory Stock Options. The period during which
a Non-Statutory Stock Option may be exercised shall be fixed by the
Committee at the time such Option is granted, but in no event shall such
period exceed 10 years and one month from the date the Option is granted.
A Non-Statutory Stock Option shall become exercisable at such times and
in such installments (which may be cumulative) as shall be determined by
the Committee at the time the Option is granted. Upon the completion of
its exercise period, a NonStatutory Stock Option, to the extent not then
exercised, shall expire. Except as otherwise provided in Articles 7 or
11, all NonStatutory Stock Options granted hereunder to an Optionee who
is an employee of the Company or any Subsidiaries shall terminate and may
no longer be exercised if the Optionee ceases to be an employee of the
Company or a Subsidiary or if the Optionee is an employee of a Subsidiary
and the Subsidiary ceases to be a Subsidiary of the Company (unless the
Optionee continues as an employee of the Company or another Subsidiary).
A NonStatutory Stock Option granted hereunder to an Optionee who is not
an employee of the Company or a Subsidiary will terminate as determined
by the Committee at the time of grant.
(c) Withholding Taxes.
(i) The Company is entitled to (aa) withhold and deduct from
future wages of the Optionee, or make other arrangements for the
collection of, all legally required amounts necessary to satisfy any
federal, state or local withholding tax requirements attributable to
<PAGE>
the Optionee's exercise of a Non-Statutory Stock Option or otherwise
incurred with respect to the Option, or (bb) require the Optionee
promptly to remit the amount of such withholding to the Company
before acting on the Optionee's notice of exercise of the Option.
(ii) The Committee may, in its discretion and subject to such
rules as the Committee may adopt, permit an Optionee to satisfy, in
whole or in part, any withholding tax obligation which may arise in
connection with the exercise of a Non-Statutory Stock Option either
by electing to have the Company withhold from the shares of Common
Stock to be issued upon exercise that number of shares of Common
Stock, or by electing to deliver to the Company already-owned shares
of Common Stock, in either case having a Fair Market Value, on the
date such tax is determined under the Code (the "Tax Date"), equal
to the amount necessary to satisfy the withholding amount due. An
Optionee's election to have the Company withhold shares of Common
Stock or to deliver already-owned shares of Common Stock upon
exercise is irrevocable and is subject to the consent or disapproval
of the Committee. If the Optionee is an officer, director or
beneficial owner of more than 10% of the outstanding Common Stock of
the Company and at the time of exercise of the Option the Company
has a class of equity securities registered under Section 12 of the
Exchange Act, such election may not be made within six months of the
date the NonStatutory Stock Option is granted (unless the death or
Disability of the Optionee occurs prior to the expiration of such
six-month period), and must be made either six months prior to the
Tax Date or between the third and twelfth business days following
public release of any of the Company's quarterly or annual summary
earnings statements. When shares of Common Stock are issued prior to
the Tax Date to an Optionee making such an election, the Optionee
shall agree in writing to surrender that number of shares on the Tax
Date having an aggregate Fair Market Value equal to the tax due.
ARTICLE 7. EFFECT OF TERMNATION OF EMPLOYMENT ON OPTIONS
7.1 Termination of Employment or Other Service Due to Death, Disability
or Retirement. In the event an Optionee's employment or other service is
terminated with the Company and all Subsidiaries by reason of his death,
Disability or Retirement, all outstanding Incentive Stock Options and
Non-Statutory Stock Options then held by the Optionee shall become immediately
exercisable in full and remain exercisable for a period of three months in the
case of Retirement and one year in the case of death or Disability, provided,
however, that an exercise may not occur after the expiration date thereof in
any event. The Company shall undertake to use its best efforts to notify the
<PAGE>
Optionee or its heirs or representatives, as the case may be, of the last date
by which Options may be exercised pursuant to this Section 7.1, at least thirty
(30) days in the case of Retirement and at least sixty (60) days in the case of
death or Disability, prior to such date.
7.2 Termination of Employment or Other Service for Reasons Other than
Death, Disability or Retirement.
(a) Except as otherwise provided in Article 11 and subsection (b)
below, in the event an Optionee's employment or other service is
terminated with the Company and all Subsidiaries for any reason other
than his death, Disability or Retirement, all rights of the Optionee
under the Plan shall immediately terminate without notice of any kind and
no Incentive Stock Option or NonStatutory Stock Option then held by the
Optionee shall thereafter be exercisable.
(b) Notwithstanding the provisions of Subsection (a) above, upon an
Optionee's termination of employment or other service with the Company
and all Subsidiaries, the Committee may, in its sole discretion (which
may be exercised before or following such termination), cause Incentive
Stock Options and Non-Statutory Stock Options then held by such Optionee
to become exercisable and to remain exercisable following such
termination of employment or other service in the manner determined by
the Committee; provided, however, that no Option shall be exercisable
after the expiration date thereof in any event, and any Incentive Stock
Option that remains unexercised more than three months following
termination of employment shall thereafter be deemed to be a
Non-Statutory Stock Option.
7.3 Date of Termination. For purposes of the Plan, an Optionee's
employment or other service shall be deemed to have terminated on the date that
the Optionee ceases to perform services for the Company or the last day of the
pay period covered by the Optionee's final paycheck, as the case may be.
Notwithstanding the foregoing, the employee Optionee shall not be deemed to
have ceased to be an employee for purposes of the Plan until the later of the
91st day of any bona fide leave of absence approved by the Company or a
Subsidiary for the Optionee (including, without limitation any layoff) or the
expiration of the period of any bona fide leave of absence approved by the
Company or a Subsidiary for the Optionee (including without limitation any
layoff) during which the Optionee's right to reemployment is guaranteed either
by statute or contract.
ARTICLE 8. RIGHTS OF EMPLOYEES; OPTIONEES
8.1 Employment. Nothing in the Plan shall interfere with or limit in any
way the right of the Company or any Subsidiary to terminate the employment of
<PAGE>
any Eligible Person or Optionee at any time, nor confer upon any Eligible
Person or Optionee any right to continue in the employ of the Company or any
Subsidiary.
8.2 Nontransferability. No right or interest of any Optionee in an Option
granted pursuant to the Plan shall be assignable or transferable during the
lifetime of the Optionee, either voluntarily or involuntarily, or subjected to
any lien, directly or indirectly, by operation of law, or otherwise, including
execution, levy, garnishment attachment, pledge or bankruptcy. In the event of
an Optionee's death, an Optionee's rights and interest in any Options shall be
transferable by testamentary will or the laws of descent and distribution, and
payment of any amounts due under the Plan shall be made to, and exercise of any
Options (to the extent permitted pursuant to Section 7.1) may be made by, the
Optionee's legal representatives, heirs or legatees. If in the opinion of the
Committee an Optionee holding any Option is disabled from caring for his or her
affairs because of mental condition, physical condition or age, any payments
due the Optionee may be made to, and any rights of the Optionee under the Plan
shall be exercised by, such Optionee's guardian, conservator or other legal
personal representative upon furnishing the Committee with evidence
satisfactory to the Committee of such status.
8.3 Non-Exclusivity of the Plan. Nothing contained in the Plan is
intended to amend, modify or rescind any previously approved compensation plans
or programs entered into by the Company. The Plan will be construed to be an
addition to any and all such other plans or programs. Neither the adoption of
the Plan nor the submission of the Plan to the shareholders of the Company for
approval will be construed as creating any limitations on the power or
authority of the Board to adopt such additional or other compensation
arrangements as the Board may deem necessary or desirable.
ARTICLE 9. SHARE ISSUANCE AND TRANSFER RESTRICTIONS
9.1 Share Issuances. Notwithstanding any other provision of the Plan or
any agreements entered into pursuant hereto, the Company shall not be required
to issue or deliver any certificate for shares of Common Stock under this Plan
(and an Option shall not be considered to be exercised, notwithstanding the
tender by the Optionee of any consideration therefor), unless and until each of
the following conditions has been fulfilled:
(a) (i) there shall be in effect with respect to such shares a
registration statement under the Securities Act and any applicable state
securities laws if the Committee, in its sole discretion, shall have
determined to file, cause to become effective and maintain the
effectiveness of such registration statement; or (ii) if the Committee
has determined not to so register the shares of Common Stock to be issued
under the Plan, (A) exemptions from registration under the Securities Act
<PAGE>
and applicable state securities laws shall be available for such issuance
(as determined by counsel to the Company) and (B) there shall have been
received from the Optionee (or, in the event of death or disability, the
Optionee's heir(s) or legal representative(s)) any representations or
agreements requested by the Company in order to permit such issuance to
be made pursuant to such exemptions; and
(b) there shall have been obtained any other consent, approval or
permit from any state or federal governmental agency which the Committee
shall, in its sole discretion upon the advice of counsel, deem necessary
or advisable.
9.2 Share Transfer. Shares of Common Stock issued pursuant to the
exercise of Options granted under the Plan may not be sold, assigned,
transferred, pledged, encumbered or otherwise disposed of (whether voluntarily
or involuntarily) except pursuant to registration under the Securities Act and
applicable state securities laws or pursuant to exemptions from such
registrations. The Company may condition the sale, assignment, transfer,
pledge, encumbrance or other disposition of such shares not issued pursuant to
an effective and current registration statement under the Securities Act and
all applicable state securities laws on the receipt from the party to whom the
shares of Common Stock are to be so transferred of any representations or
agreements requested by the Company in order to permit such transfer to be made
pursuant to exemptions from registration under the Securities Act and
applicable state securities laws.
9.3 Legends. Unless a registration statement under the Securities Act is
in effect with respect to the issuance or transfer of shares of Common Stock
issued under the Plan, each certificate representing any such shares shall be
endorsed with a legend in substantially the following form, unless counsel for
the Company is of the opinion as to any such certificate that such legend is
unnecessary:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR UNDER
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMERED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND SUCH STATE LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND SUCH STATE LAWS, THE AVAILABILITY
OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
<PAGE>
ARTICLE 10. PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board may suspend or terminate the Plan or any portion thereof at any
time, and may amend the Plan from time to time in such respects as the Board
may deem advisable in order that Incentive Stock Options and Non-Statutory
Stock Options under the Plan shall conform to any change in applicable laws or
regulations or in any other respect the Board may deem to be in the best
interests of the Company; provided, however, that no such amendment, without
approval of the shareholders of the Company, may (a) materially increase the
benefits accruing to Optionees under the Plan, (b) increase the total number of
shares of Common Stock as to which Options may be granted under the Plan,
except as provided in Section 4.3 of the Plan, or (c) materially modify the
requirements as to eligibility for participation in the Plan. No termination
suspension or amendment of the Plan shall alter or impair any outstanding
Option without the consent of the Optionee affected thereby; provided, however,
that this sentence shall not impair the right of the Committee to take whatever
action it deems appropriate under Section 4.3.
ARTICLE 11. CHANGE IN CONTROL
If, during the term of an Option, (i) the Company merges or consolidates
with any other corporation and is not the surviving corporation after such
merger or consolidation; (ii) the Company transfers all or substantially all of
its business and assets to any other person; or (iii) more than 50% of the
Company's outstanding voting shares are purchased by any other person, the
Committee may, in its sole discretion, provide for the acceleration of the
right to exercise the option prior to the anticipated effective date of any of
the foregoing transactions or take any other action as it may deem appropriate
to further the purposes of this Plan or protect the interests of the Optionee.
ARTICLE 12. EFFECTIVE DATE OF THE PLAN
12.1 Effective Date. The Plan is effective as of April 1, 1994, the
effective date it was adopted by the Board subject to the approval of the
shareholders within 12 months. Options may be granted under the Plan prior to
shareholder approval if made subject to shareholder approval.
12.2 Duration of the Plan. The Plan shall terminate at midnight on March
31, 2004 and may be terminated prior thereto by Board action, and no Options
shall be granted after such termination. Options outstanding upon termination
of the Plan may continue to be exercised in accordance with their terms.
<PAGE>
ARTICLE 13. MISCELLANEOUS
13.1 Governing Law. The Plan and all agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Minnesota
without regard to the conflict of laws provisions of a any jurisdictions. All
parties agree to submit to the jurisdiction of the state and federal courts of
Minnesota with respect to matters relating to the Plan and agree not to raise
or assert the defense that such forum is not convenient for such party.
13.2 Gender and Number. Except when otherwise indicated by the context,
reference to the masculine gender in the Plan shall include, when used, the
feminine gender and any term used in the singular shall also include the
plural.
13.3 Construction. Wherever possible, each provision of this Plan shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Plan shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Plan.
13.4 Successors and Assign. This is Plan shall be binding upon and inure
to the benefit of the successors and permitted assigns of the Company,
including, without limitation, whether by way of merger, consolidation,
operation of law, assignment purchase or other acquisition of substantially all
of the assets or business of the Company, and any and all such successors and
assigns shall absolutely and unconditionally assume all of the Company's
obligations under the Plan.
13.5 Survival of Provisions. The rights, remedies, agreements,
obligations and covenants contained in or made pursuant to the Plan, any
agreement evidencing an Incentive Award and any other notices or agreements in
connection therewith, including, without limitation, any notice of exercise of
an Option, shall survive the execution and delivery of such notices and
agreements and the delivery and receipt of shares of Common Stock and shall
remain in full force and effect.
Exhibit 5
BINGHAM DANA LLP
150 Federal Street
Boston, Massachusetts 02110-1726
September 8, 1998
EMC Corporation
35 Parkwood Drive
Hopkinton, Massachusetts 01748
Dear Sirs/Mesdames:
We have acted as counsel for EMC Corporation, a Massachusetts corporation
(the "Company"), in connection with the Company's Registration Statement on
Form S-8 proposed to be filed with the Securities and Exchange Commission (the
"Commission") on September 8, 1998 (the "Registration Statement").
The Registration Statement covers (i) the registration of up to 200,000
shares (the "Shares") of common stock, $.01 par value per share ("Common
Stock"), of the Company to be issued by the Company upon exercise of employee
stock options granted pursuant to Conley Corporation's 1994 Stock Option Plan
(the "1994 Plan"), and pursuant to the terms of the applicable stock option
agreements ("Option Agreements"), and (ii) the registration of the Shares for
resale by certain stockholders of the Company.
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the 1994 Plan and the issuance of the Shares thereunder.
We have also examined and relied upon originals or copies, certified or
otherwise identified or authenticated to our satisfaction, of such corporate
records, instruments, agreements or other documents of the Company, and
certificates of officers of the Company as to certain factual matters, as we
have deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form and the legal competence of each individual
executing any document.
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of this opinion. This
opinion is limited solely to the Massachusetts Business Corporation Law as
applied by courts located in Massachusetts.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized; and
2. The Shares, when issued and delivered against the exercise of options
granted pursuant to the 1994 Plan and the payment of the exercise price
therefor as provided in the applicable Option Agreements, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham Dana LLP
Exhibit 23.2
CONSENT OF PricewaterhouseCoopers LLP, INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated January 21, 1998 on our audits of the consolidated
financial statements and the consolidated financial statement schedule of EMC
Corporation as of December 31, 1997 and December 31, 1996 and for each of the
three years in the period ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
September 8, 1998
