As filed with the Securities and Exchange Commission on
June 19, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________________
EMC CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2680009
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
EMC Corporation 401(k) Savings Plan
(Full title of the plan)
_________________________
35 Parkwood Drive
Hopkinton, Massachusetts 01748
(Address of principal executive offices, including zip code)
_________________________
Paul T. Dacier, Esq.
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
Title of Each Class Amount to Proposed Proposed Amount of
of Securities to be be Maximum Maximum Registration
Registered Registered Offering Aggregate Fee
Price Per Offering
Share(1) Price(1)
Common Stock, $.01 1,000,000
par value per share (2) shares $45.13 $45,130,000 $ 13,313
(1) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h) on the basis of
the average of the high and low sale prices of the Common
Stock on the New York Stock Exchange on June 18, 1998.
(2) In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this Registration Statement also
covers an indeterminate amount of interests to be offered
or sold pursuant to the employee benefit plan described
herein. Pursuant to Rule 457(h)(2) under the Securities
Act of 1933, no separate registration fee is required with
respect to the plan interests being registered hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act") and the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by EMC Corporation, a
Massachusetts corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") are
incorporated herein by reference except to the extent any
statement or information therein is modified, superseded or
replaced by a statement or information contained in this
document or in any other subsequently filed document
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997
(Commission File No. 1-9853).
(b) The Company's Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 1998.
(c) The description of the Common Stock, $.01 par
value per share (the "Common Stock"), contained in
Item 1 of the Company's Registration Statement on
Form 8-A, filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), on March 4, 1988.
(d) All reports and other documents subsequently
filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment
which indicates that all securities offered hereby
have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part
hereof from the date of the filing of such reports
and documents.
Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document
which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock to be issued under the
EMC Corporation 401(k) Savings Plan will be passed upon for
the Company by Ropes & Gray, Boston, Massachusetts. Certain
partners of Ropes & Gray are the beneficial owners of an
aggregate of approximately 48,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Under Section 9 of the By-laws of the Registrant, the
Registrant shall, to the extent legally permissible,
indemnify each of its directors and officers (including
persons who serve at its request 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 or
her in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal,
in which he or she may be involved or with which he or she
may be threatened, while in office or thereafter, by reason
of his or her being or having been such a director or
officer, except with respect to any matter as to which he or
she shall have been adjudicated in any proceeding not to
have acted in good faith in the reasonable belief that his
or her 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 or her 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, by (a) a disinterested majority of the
directors then in office; or (b) 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 or her action was in the best interests of the
Registrant; or (c) 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
such Section 9. The right of indemnification provided by
such Section 9 is not to be exclusive of or affect any
rights to which any director or officer may otherwise be
entitled. As used in such 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 such 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Title of Exhibit
4.1 Articles of Organization, as amended. Incorporated
by reference to the Company's Current Report on
Form 8-K dated May 26, 1995 and to the Company's
Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997 filed with the
Commission on May 14, 1997 (File No. 1-9853).
4.2 By-laws of EMC Corporation, as amended.
Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarterly
period ended July 1, 1995 filed with the
Commission on August 11, 1995.
4.3 Form of certificate representing shares of Common
Stock, $0.01 par value per share. Incorporated by
reference to the Company's Annual Report on Form
10-K filed with the Commission on March 31, 1988.
4.4 EMC Corporation 401(k) Savings Plan, as amended to
date.
5.1 Opinion of Ropes & Gray.
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Ropes & Gray (contained in the opinion
filed as Exhibit 5.1 to this Registration
Statement).
25.1 Power of Attorney (included in Part II of this
Registration Statement under the caption
"Signatures").
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement, (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933,
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof), which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement, and (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any
material change to such information in this Registration
Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating 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; and
(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.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection
with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
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 Town of Hopkinton,
Commonwealth of Massachusetts on the 19th day of June,
1998.
EMC Corporation
By:/s/ William J. Teuber, Jr.
Name: William J. Teuber, Jr.
Title: Vice President and Chief
Financial Officer
(Principal Accounting
Officer)
Pursuant to the requirements of the Securities Act of
1933, the EMC Corporation 401(k) Savings Plan has duly
caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the
Town of Hopkinton, Commonwealth of Massachusetts on this
19th day of June, 1998.
EMC Corporation 401(k) Savings
Plan
By:/s/ Paul T. Dacier
Name: Paul T. Dacier
Title: Vice President and
General Counsel
Each person whose signature appears below constitutes
and appoints Michael C. Ruettgers, Colin G. Patteson and
Paul T. Dacier, and each of them singly, his or her true and
lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8 to be
filed by EMC Corporation, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power
and authority to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates
indicated.
Signatures Title Date
/s/ Richard J. Egan Chairman of the Board June 19, 1998
Richard J. Egan (Principal Executive
Officer) and Director
/s/ Michael C. Ruettgers President and Chief June 19, 1998
Michael C. Ruettgers Executive Officer
and Director
/s/ Colin G. Patteson Senior Vice President,June 19, 1998
Colin G. Patteson Chief Administrative
Officer and
Treasurer (Principal
Financial Officer)
/s/ William J. Teuber,Jr. Vice President and June 19,1998
William J. Teuber,Jr. Chief Financial Officer
(Principal Accounting
Officer)
/s/ Michael J. Cronin Director June 19, 1998
Michael J. Cronin
/s/ John F. Cunningham Director June 19, 1998
John F. Cunningham
/s/ John R. Egan Director June 19, 1998
John R. Egan
/s/ Maureen E. Egan Director June 19, 1998
Maureen E. Egan
/s/ W. Paul Fitzgerald Director June 19, 1998
W. Paul Fitzgerald
/s/ Joseph F. Oliveri Director June 19, 1998
Joseph F. Oliveri
EXHIBIT INDEX
Exhibit
Number Title of Exhibit
4.1 Articles of Organization, as amended.
Incorporated by reference to the Company's
Current Report on Form 8-K dated May 26, 1995
and to the Company's Quarterly Report on Form
10-Q for the quarterly period ended March 31,
1997 filed with the Commission on May 14,
1997 (File No. 1-9853).
4.2 By-laws of EMC Corporation, as amended.
Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the
quarterly period ended July 1, 1995 filed
with the Commission on August 11, 1995.
4.3 Form of certificate representing shares of
Common Stock, $0.01 par value per share.
Incorporated by reference to the Company's
Annual Report on Form 10-K filed with the
Commission March 31, 1988.
4.4 EMC Corporation 401(k) Savings Plan, as
amended to date.
5.1 Opinion of Ropes & Gray.
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Ropes & Gray (contained in the
opinion filed as Exhibit 5.1 to this
Registration Statement).
25.1 Powers of Attorney (included in Part II of
this Registration Statement under the caption
"Signatures").
EMC CORPORATION
401(k) SAVINGS PLAN
(Amended and Restated January 1, 1998)
EMC CORPORATION
401(k) SAVINGS PLAN
Table of Contents
ARTICLE 1. INTRODUCTION 1
1.1. In General 1
1.2. Purpose of Plan 1
ARTICLE 2. PARTICIPATION 2
2.1. Date of Participation. 2
2.2. Cessation of Participation 2
2.3. Breaks in Participation 2
ARTICLE 3. CONTRIBUTIONS. 3
3.1. Pre-Tax Employee Contributions 3
3.2. Matching Contributions 3
3.3. Discretionary Profit-Sharing
Contributions 3
3.4. Rollover Contributions 4
3.5. Certain Limits Apply 4
3.6. Establishment of Trust 4
ARTICLE 4. PARTICIPANT ACCOUNTS 5
4.1. Accounts 5
4.2. Adjustment of Accounts 5
4.3. Investment of Accounts 5
4.4. Vesting 6
4.5. Special Vesting Rules 7
4.6. Changes in Vesting Schedule 7
4.7. Forfeitures 7
4.8. Separate Account 8
4.9. Reports to Participants 8
ARTICLE 5. WITHDRAWALS OR LOANS PRIOR TO
SEPARATION FROM SERVICE 9
5.1. In General. 9
5.2. Withdrawals After Age 59 1/2 9
5.3. Hardship Withdrawals 9
5.4. Loans 11
5.5. Order of Withdrawals; Adjustment 13
ARTICLE 6. DISTRIBUTION OF BENEFITS 14
6.1. Separation from Service or Death 14
6.2. Method of Making Distributions 14
6.3. Direct Rollovers 14
6.4. Time of Distributions 14
6.5. Latest Payment of Benefits 15
6.6. Distributions After a Participant's
Death 16
6.7. Notice to Trustee 17
6.8. Designation of Beneficiary 17
ARTICLE 7. ADMINISTRATION 19
7.1. Plan Administrator 19
7.2. Powers 19
7.3. Effect of Interpretation or
Determination. 19
7.4. Examination of Records 20
7.5. Reliance on Tables, Etc. 20
7.6. Expenses of Plan 20
7.7. Named Fiduciary 20
7.8. Reporting and Disclosure. 20
7.9. Withholding of Tax 20
7.10. Indemnification of Company Members
and Assistants 20
7.11. Claims and Review Procedures 20
7.12. Participant-Directed Investments 21
ARTICLE 8. AMENDMENT AND TERMINATION OF PLAN 22
8.1. Amendment 22
8.2. Termination 22
8.3. Binding Effect on Participating
Employers 22
8.4. Distributions Upon Termination
of the Plan 23
8.5. Amounts Transferred From Other
Plans 23
8.6. Merger or Consolidation of Plan;
Transfer of Plan Assets 23
8.7. Successor Employers 24
8.8. Participating Employer Ceasing
to be Affiliated 24
ARTICLE 9. MISCELLANEOUS 25
9.1. Voting of Stock 25
9.2. Tender or Exchange Offers 25
9.3. Limitation of Rights 27
9.4. Payments to Minors and
Incompetents 27
9.5. Governing Law 27
9.6. Nonalienability of Benefits 27
9.7. Payment Under Qualified Domestic
Relations Orders 28
9.8. Information Between Company and
Trustee 28
9.9. Veterans' Re-Employment and
Benefits Rights 28
ARTICLE 10. LIMITS ON CONTRIBUTIONS 29
10.1. Code Section 404 Limits 29
10.2. Code Section 415 Limits 29
10.3. Code Section 402(g) Limits 29
10.4. Code Section 401(k)(3) Limits 29
10.5. Code Section 401(m) Limits 31
10.6. Return of Contributions 33
ARTICLE 11. SPECIAL TOP HEAVY PROVISIONS 35
11.1. Special Contribution for Top
Heavy Plan Years 35
11.2. Adjustment to Limitations 36
11.3. Definitions 36
ARTICLE 12. DEFINITIONS 38
12.1. "Accounts" 38
12.2. "Affiliated Company" 38
12.3. "Annual Addition" 38
12.4. "Beneficiary" 38
12.5. "Board of Directors" 38
12.6. "Code" 38
12.7. "Company" 38
12.8. "Compensation" 38
12.9. "Computation Period" 39
12.10. "Effective Date" 39
12.11. "Eligible Employee" 39
12.12. "Eligibility Period" 40
12.13. "EMC Stock Fund" 40
12.14. "Employee" 40
12.15. "Entry Date" 40
12.16. "ERISA" 40
12.17. "Hour of Service" 40
12.18. "Limitation Year" 41
12.19. "Normal Retirement Age" 41
12.20. "Participant" 41
12.21. "Participating Employer" 41
12.22. "Period of Service" 41
12.23. "Plan" 43
12.24. "Plan Year" 43
12.25. "Qualified Domestic Relations
Order" 43
12.26. "Stock" 43
12.27. "Total and Permanent Disability"43
12.28. "Trust" 44
12.29. "Trust Fund" 44
12.30. "Trustee" 44
12.31. "Valuation Date" 44
12.32. "Pre-Tax Employee Contributions"44
ARTICLE 1. INTRODUCTION
1.1 In General. This Plan amends, restates and
continues the EMC Corporation 401(k) Savings Plan, as in
effect prior to the Effective Date. The provisions of the
restated Plan, as set forth below, are effective as of the
date or dates set forth at Section 12.10 below.
1.2 Purpose of Plan. This Plan is intended to qualify
as a profit-sharing plan under Section 401(a) of the Code,
and the cash or deferred arrangement forming part of the
Plan is intended to qualify under Code section 401(k). The
provisions of the Plan shall be construed and applied
accordingly. The Plan is being maintained by the Company
and any other Participating Employers for the purpose of
providing benefits to Participants upon retirement and
certain other severances from service in a manner consistent
and in compliance with Section 401(a) of the Code and
Title I of ERISA. Except as otherwise provided in Sections
7.6, 9.7 and 10.6, no part of the corpus or income of the
Trust forming part of this Plan will be used for or diverted
to purposes other than for the exclusive benefit of each
Participant and Beneficiary.
ARTICLE 2. PARTICIPATION.
2.1 Date of Participation. Each Eligible Employee who
was eligible to Participate in the Plan on December 31, 1997
shall continue to be eligible to participate, subject to
Section 2.2. Each other Eligible Employee will become a
Participant on the later of the Effective Date and the Entry
Date next following the date on which he or she completes an
Hour of Service as an Eligible Employee, provided he or she
is an Eligible Employee on such day and subject to Section
2.2 below.
2.2 Cessation of Participation. In general, a
Participant will cease to be a Participant as of the earlier
of (a) the date on which he or she ceases to be an Eligible
Employee, and (b) the date on which the Plan terminates.
Notwithstanding the preceding sentence, an individual
generally will continue to be treated as a Participant for
purposes of Articles 4, 5, 6, 7, 8 and 9 until such time as
the Participant's Plan Accounts have been completely
forfeited or distributed.
2.3 Breaks in Participation. If a Participant ceases
to be a Participant pursuant to Section 2.2(a) and
thereafter returns to the employ of a Participating
Employer, he or she will again become a Participant on the
Entry Date (if prior to the date described in Section
2.2(b)) coinciding with or next following the day on which
he or she performs an Hour of Service as an Eligible
Employee.
ARTICLE 3. CONTRIBUTIONS.
3.1 Pre-Tax Employee Contributions. Each Participant
may enter into a contribution agreement with his or her
Participating Employer specifying that a percentage of his
or her Compensation will be contributed to the Trust as a
Pre-Tax Employee Contribution. By agreeing to Pre-Tax
Employee Contributions, the Participant shall agree to a
reduction in pay in the amount designated and the
Participating Employer shall agree in consideration of such
reduction to contribute an equivalent amount to the Trust on
the Participant's behalf. Pre-Tax Employee Contributions
will be allocated to the Participant's Pre-Tax Employee
Contribution Account. Pre-Tax Employee Contributions made
pursuant to this Section 3.1 will be contributed to the
Trust as soon as the contributions can be reasonably
segregated from the general assets of the Participating
Employer, but in no event later than the fifteenth business
day of the month following the month during which the
Compensation to which some contributions relate is paid.
Each contribution election shall be made in a manner
prescribed or approved by the Company, and may be for no
more than 15% of Compensation for a payroll period. A
Participant's contribution election will be effective as of
the first payroll period ending on or after an Entry Date as
is administratively practicable. A contribution election
may be changed or revoked as of the first payroll period as
is administratively practicable. Any establishment, change,
or revocation of a contribution election shall be made with
such prior notice as the Company may prescribe. In no event
shall a contribution election be effective with respect to
Compensation payable before the date the election is entered
into.
3.2 Matching Contributions. For each calendar
quarter, a qualified Participant's Participating Employer
shall contribute to the Trust for the Participant's benefit
Matching Contributions in an amount equal to the Pre-Tax
Employee Contributions made for the benefit of the
Participant for such quarter, if any. For purposes of the
preceding sentence, Pre-Tax Employee Contributions for any
quarter in excess of either a specified amount or a
percentage of the Participant's Compensation for such
calendar quarter shall be disregarded. The Board of
Directors shall determine such dollar amount and percentage
(which amount and percentage may be zero) for each calendar
quarter. Matching Contributions will be allocated to the
Participant's Matching Contribution Account within the time
required by Treasury Regulation section 1.415-6.
For purposes of receiving Matching Contributions for
any quarter, a Participant shall be a "qualified
Participant" if the Participant is an Employee on the last
day of such calendar quarter.
3.3 Discretionary Profit-Sharing Contributions. The
Participating Employers shall contribute to the Trust, in
addition to the amounts (if any) contributed under Sections
3.1 and 3.2, their allocable share (as determined by the
Company) of an amount equal to a percentage of each Eligible
Participant's Compensation for such Plan Year. The Board of
Directors shall determine such percentage of Compensation
for any Plan Year, which percentage may be zero.
Contributions under this Section 3.3 shall be made as soon
as practicable following the close of each Plan Year, but in
any event by the time required by Treasury Regulation
section 1.415-6, and shall be allocated to eligible
Participant's Discretionary Profit-Sharing Contribution
Account.
For purposes of this Section 3.3, a Participant shall
be considered an "eligible Participant" for any Plan Year if
he or she (i) is a Participant on the last day of the Plan
Year or separated from service on account of retirement
after attaining age 65, death or Total and Permanent
Disability during the Plan Year, (ii) is credited with 1,000
Hours of Service during the Plan Year, and (iii) is (or, in
the case of death, retirement after attaining age 65 or
Total and Permanent Disability during the Plan Year, was at
the time of such death, retirement or Total and Permanent
Disability) employed by a Participating Employer designated
by the Board of Directors as Participating in the program of
Discretionary Profit-Sharing Contributions described in this
Section.
Only those Participating Employers which are so
designated shall make Discretionary Profit-Sharing
Contributions in accordance with the provisions of this
Section.
3.4 Rollover Contributions. An Eligible Employee may
make a Rollover Contribution to the Plan upon demonstration
to the Company that the contribution is eligible for
transfer to the Plan pursuant to the rollover provisions of
the Code. An individual making a rollover hereunder will
not become a Participant until he or she has satisfied the
eligibility requirements of Article 2, but will be treated
as a Participant with respect to his or her Rollover
Contribution Account for purposes of Articles 4, 5, 6, 7, 8
and 9 of the Plan.
3.5 Certain Limits Apply. All contributions to the
Plan are subject to the applicable limits set forth under
Code sections 401(k), 401(m), 402(a), 404, and 415, as
further described in Article 10. In addition, certain
minimum allocations may be required under Code
sections 401(a)(26), 410(b) and 416, as described elsewhere
in the Plan.
3.6 Establishment of Trust. The Company has
established a Trust to accept and hold contributions made
under the Plan. The Trust is governed by an agreement
between the Company and the Trustee, the terms of which are
consistent with the Plan provisions and qualification under
Code sections 401(a) and 501(a).
ARTICLE 4. PARTICIPANT ACCOUNTS.
4.1 Accounts. The Company will establish and maintain
(or cause the Trustee to establish and maintain) for each
Participant, as necessary, a Pre-Tax Employee Contribution
Account, Matching Contribution Account, Discretionary Profit-
Sharing Contribution Account, Rollover Contribution Account
and such other Accounts as it deems advisable.
4.2 Adjustment of Accounts. As of each Valuation
Date, each Account will be adjusted to reflect the fair
market value of the assets allocated to the Account. In so
doing,
(a) each Account balance will be increased by the
amount of contributions, income and gain allocable to
such Account since the prior Valuation Date;
(b) each Account balance will be decreased by the
amount of distributions, forfeitures and withdrawals
from the Account and expenses and losses allocable to
the Account since the prior Valuation Date.
Income, expense, gain and loss which is generated by a
particular investment option within the Trust shall be
allocated to an Account participating in such investment
option in the ratio to which the portion of the Account
which is invested in the investment option bears to the
entire amount of Trust assets invested in such investment
option. To the extent consistent with ERISA, any expenses
relating to a specific Account or Accounts, including
without limitation, commissions or sales charges with
respect to an investment in which the Account participates,
may be charged solely to the particular Account or Accounts.
4.3 Investment of Accounts.
(a) All contributions to the Plan and all
investments held thereunder will be held by the Trustee
in the Trust. All Accounts under the Plan shall be
invested in one or more investment options made
available from time to time by the Company for this
purpose. The Plan is intended to be an "ERISA section
404(c) plan" within the meaning of regulations issued
pursuant to such section. Participants shall have the
opportunity, at least once in any 3-month period, to
give investment instructions to the Company (with an
opportunity to obtain written confirmation of such
instructions) as to the investment of contributions
made on his or her behalf among the investment options,
subject to the allocation rules which may be prescribed
by the Company. The Company shall be obligated to
comply with such instructions except as otherwise
provided in the ERISA Section 404(c) regulations. The
Company shall prescribe the form and manner in which
such directions shall be made, as well as the frequency
with which such directions may be made or changed, and
the dates as of which they shall be effective, in a
manner consistent with the foregoing. By failing to
submit a completed investment election or otherwise
affirmatively directing the initial investment of his
or her Accounts, a Participant shall be deemed to elect
that contributions shall be invested in a money market
fund available under the Plan. The Company shall be
the fiduciary identified to furnish the information
contemplated by ERISA Section 404(c), but may designate
on its behalf another person or entity to provide such
information or to perform any of the obligations of the
Company under this Section 4.3.
(b) Effective as of July 1, 1998, with respect to
Pre-Tax Employee Contributions and Matching
Contributions made on and after that date, a
Participant may direct such Contributions to be
invested in the EMC Stock Fund, subject to the
following special rules:
(i) no more than 30% of Pre-Tax
Employee Contributions and no more than 30% of
Matching Contributions (determined at the time
such Contributions are made to the Trust) may be
invested in the EMC Stock Fund;
(ii) Participant may direct that
amounts previously invested in the EMC Stock Fund
be reallocated to other investment options
available under the Plan at any time, subject to
the rules and procedures established by the
Company; and
(iii) for the avoidance of doubt, (A)
no portion of a Participant's Discretionary Profit-
Sharing Contribution Account or Rollover
Contribution Account may be invested in the EMC
Stock Fund, (B) Pre-Tax Employee Contributions and
Matching Contributions which are not initially
invested in the EMC Stock Fund may not be
reallocated to the EMC Stock Fund, and (C) amounts
reallocated from the EMC Stock Fund to other
investment options may not be invested again in
the EMC Stock Fund.
4.4 Vesting.
(a) A Participant will at all times be 100%
vested in his or her Pre-Tax Employee Contribution
Account, Matching Contribution Account and Rollover
Contribution Account.
(b) Each Participant will have a vested interest
in a percentage of his or her Discretionary Profit-
Sharing Contribution Account determined in accordance
with the following schedule and based on his or her
Period of Service:
Applicable
Period of Service Percentage
Less than 1 year 0%
1 but less than 2 years 25%
2 but less than 3 years 50%
3 but less than 4 years 75%
4 or more years 100%
4.5 Special Vesting Rules. Notwithstanding any
provision of the Plan to the contrary, a Participant will be
fully vested in 100% of the Accounts maintained for his or
her benefit upon the happening of any one of the following
events:
(a) the Participant's attainment of Normal
Retirement Age (age 65) while an Employee;
(b) the Participant's separation from service due
to his or her Total and Permanent Disability;
(c) the Participant's death while an Employee;
(d) the termination or partial termination of the
Plan or the complete cessation of contributions to the
Plan, to the extent that the Participant is affected by
such termination, partial termination, or complete
discontinuance.
4.6 Changes in Vesting Schedule. If the Plan's
vesting schedule is amended, or the Plan is amended in any
way that directly or indirectly affects the computation of a
Participant's vested percentage (or if the Plan changes to
or from a top-heavy vesting schedule), each Participant who
has completed 3 Plan Years during which he or she was
credited with at least 1,000 Hours of Service may elect,
within the period described below, to have his or her vested
percentage determined without regard to such amendment or
change. The period referred to in the preceding sentence
will begin on the date the amendment of the vesting schedule
is adopted and will end 60 days thereafter, or, if later, 60
days after the latest of the following dates:
(a) the date on which such amendment is adopted;
(b) the date on which such amendment becomes
effective; and
(c) the date on which the Participant is issued
written notice of such amendment by the Company.
4.7 Forfeitures. If a Participant separates from the
service of the Employer on or after January 1, 1998, at a
time when he or she has a less than 100 percent (100%)
nonforfeitable interest in his or her Discretionary Profit-
Sharing Contribution Account, the forfeitable portions of
such Accounts will immediately be treated as forfeited.
Notwithstanding the foregoing, if at any time prior to
incurring five consecutive Breaks in Service the Participant
is reemployed by the Employer, any amount so forfeited will
be recredited to the Participant's Discretionary Profit-
Sharing Contribution Account subject to the following
special rules:
(a) Amounts required to be recredited to a
Participant's Account pursuant to this Section will be
taken first from amounts forfeited by other
Participants which have not yet been applied in
accordance with the last sentence of this Section 4.7.
(b) A reemployed Participant's nonforfeitable
interest in any amounts recredited to his or her
Account pursuant to this Section will be determined
under Section 4.4, taking into account the
Participant's Period of Service accumulated before the
separation from service which caused the forfeiture.
All forfeitures arising under this Section 4.7, to the
extent not applied to the recrediting of Accounts of
reemployed Participants as described above, will be applied
toward the payment of Plan expenses in accordance with
Section 7.6. If any excess remains after application of the
preceding sentence, the excess shall be applied toward
Matching Contributions under Section 3.2 (if any) for the
Plan Year. If any excess still remains after application of
the preceding sentences, it shall be allocated as additional
Matching Contributions pursuant to Section 3.2.
4.8 Separate Account. If a distribution has been made
to a Participant at a time when he or she has a
nonforfeitable right to less than one hundred (100%) percent
of his or her Accounts, the vesting schedule in Section 4.4
will thereafter apply only to his or her Accounts
attributable to contributions allocated after such
distribution. The balance in his or her Accounts which were
not 100% vested at the time of such distribution shall,
immediately after such distribution, be transferred to
separate accounts which will be maintained for the purpose
of determining his or her interest therein at any later
time. At any relevant time, his or her nonforfeitable
interest in each such separate account will be equal to
P(AB+D)-D, where P is the nonforfeitable percentage of his
or her Account at the relevant time determined under Section
4.4; AB is the account balance of the separate account at
the relevant time; and D is the amount of the distribution.
However, if any portion of such separate account is
forfeited under Section 4.7, the Participant's interest in
the remaining balance, if any, in such separate account will
thereafter be fully vested and nonforfeitable.
4.9 Reports to Participants. The Company, at least
annually, will provide to each Participant a written
statement of his or her Plan Accounts.
ARTICLE 5. WITHDRAWALS OR LOANS PRIOR TO SEPARATION FROM
SERVICE
5.1 In General. Except as provided in this Article 5,
in-service withdrawals are not permitted.
5.2 Withdrawals After Age 59 1/2. A Participant who is
an Employee and has attained age 59 1/2 may withdraw part or
all of the vested portion of his or her Accounts. A request
for a withdrawal under this Section 5.2 shall be made in
compliance with such rules and procedures as may be
established by the Company.
5.3 Hardship Withdrawals.
(a) Any Participant who has demonstrated to the
satisfaction of the Company that he or she has suffered
an immediate and heavy financial need as defined in
this paragraph (a) may request a withdrawal from his or
her (i) Pre-Tax Employee Contribution Account of any
sum not in excess of his or her cumulative Pre-Tax
Employee Contributions reduced by the amount of
previous distributions of Pre-Tax Employee
Contributions made pursuant to this Section 5.3; (ii)
Matching Contribution Account; (iii) Rollover
Contribution Account; and (iv) Discretionary Profit-
Sharing Contribution Account. The value of all such
Accounts shall be determined as of the Valuation Date
coinciding with or immediately preceding the date of
the withdrawal. A request for withdrawal under this
Section 5.3 shall be made in accordance with such rules
and procedures as may be established by the Company.
Such request shall set forth the facts establishing the
existence of the hardship and the amount requested. In
addition to such request, the Company may require such
other information, in form satisfactory to the Company,
as it deems necessary to discharge its responsibilities
pursuant to this Article 5. Upon receipt of such a
request, the Company will determine whether an
immediate and heavy financial need exits; if the
Company determines that such a need does exist, it will
further determine what portion of the amount requested
by the Participant is required to relieve the financial
need and will direct the Trustee to distribute to the
Participant in a single lump sum the amount so
determined to be required. A hardship withdrawal shall
be taken pro rata from the Participant's Plan Accounts.
(b) For purposes of this Section, a distribution
will be deemed to be on account of an immediate and
heavy financial need if the distribution is on account
of:
(i) unreimbursed medical expenses described
in Section 213(d) of the Code incurred by the
Participant, his or her spouse or a dependent of
the Participant;
(ii) payment of tuition for the next 12
months of post-secondary education of the
Participant or the Participant's spouse, children
or dependents;
(iii) costs directly related to the purchase
(excluding mortgage payments) of a principal
residence for the Participant; or
(iv) the need to prevent the eviction of the
Participant from his or her principal residence
or foreclosure on the mortgage of the
Participant's principal residence.
(c) For purposes of this Section, a distribution
will be treated as an "amount necessary to relieve the
financial need" if:
(i) the distribution is not in excess of the
amount of the immediate and heavy financial need
of the Participant (including any amounts
necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated
to result from the distribution);
(ii) the Participant has obtained all
distributions (if any) available under this and
all other qualified retirement plans maintained by
the Employer (other than hardship withdrawals);
and
(iii) the Participant has obtained all
nontaxable loans currently available under this
and all other qualified plans of the Employer.
(d) Any Participant making a withdrawal under
this Section shall be ineligible to have Pre-Tax
Employee Contributions (or any other contributions
described in Code section 402(g)(3)) made to the Plan,
to the Company's Employee Stock Purchase Plan, or to
any other qualified or nonqualified plans of deferred
compensation of the Employer (other than health or
welfare benefit plans) for a 12-months period following
the Valuation Date as of which the withdrawal is
effective. Such 12-month period shall begin as of the
first pay period following such hardship withdrawal as
is administratively practicable. In addition, for the
Plan Year following the year the hardship withdrawal is
effective, no Pre-Tax Employee Contributions (and any
other contributions described in Code section
402(g)(3)) shall be made for the benefit of the
Participant to the Plan or to any other qualified
retirement plan maintained by the Employer for such
Year in excess of the applicable limit in effect under
Section 402(g)(1) of the Code for such Year reduced by
the aggregate amount of Pre-Tax Employee Contributions
(and any other contributions described in Code section
402(g)(3)) made for the benefit of the Participant to
all other qualified retirement plans maintained by the
Employer for the Plan Year in which the hardship
withdrawal is effective.
5.4 Loans. Upon the request of a Participant on a
form and in a manner approved or prescribed by the Company,
the Company may direct the Trustee to make a loan from the
Plan to such Participant, subject to the following
conditions:
(a) The Company shall determine the time or times
each year when loans shall be made available to
Participants, and shall formulate such rules and
procedures as it deems appropriate relating to such
loans including such terms as may from time to time be
specified by the Company in accordance with this
Section 5.4. Any written procedures developed by the
Company shall become part of this Plan.
(b) The amount of any loan (the "subject loan"),
together with the aggregate amount of principal and
accrued interest owed by the Participant with respect
to any prior loans from the Trust, shall not exceed the
least of:
(i) $50,000 reduced by the excess (if any)
of (A) the highest outstanding balance of loans
from the Plan to the Participant during the one-
year period ending on the day before the date on
which the subject loan is made, over (B) the
outstanding balance of loans from the Plan to the
Participant on the date on which the subject loan
is made; or
(ii) one-half of the vested portion of that
part of the Participant's Accounts.
For purposes of this Section 5.4(b), the value of a
Participant's Accounts shall be determined as of the
Valuation Date immediately preceding the date the loan is
approved. A loan shall not be available under the Plan
unless the loan (determined after applying the limitations
described above) is at least $1,000.
For purposes of this Section 5.4, former Participants,
terminated Employees, alternate payees under Qualified
Domestic Relations Orders, individuals described in Section
9.9, and Beneficiaries shall not be treated as Participants
eligible to take loans under the Plan unless required by
applicable regulations issued by the Department of Labor.
(c) Each loan must be evidenced by a note and
must be secured by not more than 50% of the
Participant's nonforfeitable interest in his or her
Accounts, including as part of such security the note
evidencing the loan. The amount of the loan shall bear
interest at an annual percentage interest rate to be
fixed by the Company. In determining the interest
rate, the Company shall take into consideration
interest rates currently being charged by persons in
the business of lending money with respect to loans
made in similar circumstances. The Company shall make
such determination through consultation with one or
more lending institutions, as the Company deems
appropriate. Loans granted at different times may bear
different interest rates. In the event of any default
by a Participant under the note evidencing any loan
under this Section 5.4(c), the unpaid principal of the
note shall immediately become due and payable in full.
Such unpaid principal, together with any accrued but
unpaid interest, shall thereupon be deducted from the
Participant's Accounts, subject to the following
restriction: in no event shall the Company apply the
Participant's Accounts to satisfy the Participant's
loan obligation, whether or not the Participant is in
default, unless and until the amount so applied could
be distributed in accordance with Article 6 of the Plan
or withdrawn in accordance with Section 5.2.
(d) Each such loan made to a Participant who is
an Employee shall be repayable by payroll deduction,
with substantially level amortization (as that term is
used in section 72(p)(2)(C) of the Code) and payments
not less frequent than quarterly, over a specified
period of time, as determined by the Company. Each
such loan made to any other Participant shall be
repayable in a manner providing for substantially level
amortization (as that term is used in section
72(p)(2)(C) of the Code) and payments not less frequent
than quarterly, over a specified period of time, as
determined by the Company. Such period of time shall
not exceed five years, unless the loan is used to
acquire a dwelling unit which is to be used within a
reasonable time as the principal residence of the
Participant, in which case such period may not exceed
ten years.
(e) If, at the time benefits are to be
distributed to a Participant or the Participant's
Beneficiary under Article 6 of the Plan, there remains
any unpaid balance of a loan hereunder, such unpaid
balance must become immediately due and payable in
full. Such unpaid balance, together with any accrued
but unpaid interest on the loan, shall be deducted from
the Participant's account before any such distribution
of benefits is made. No loan shall be made hereunder
after the time distributions to a Participant or
Beneficiary under Article 6 are to be paid or commence.
(f) A note evidencing a loan to a Participant
under this Section 5.4 shall be an asset of the Trust
which is allocated to the Accounts of the Participant,
and shall be deemed to have a fair market value at any
given time equal to the unpaid balance of the note plus
the amount of any accrued but unpaid interest.
(g) Amounts necessary to provide a loan under
this Section shall be obtained by the Trustee pro rata
from each of the investment options in which the
Participant's accounts are invested. Any repayment of
a loan hereunder shall be reinvested in the investment
fund in accordance with written rules or procedures
prescribed by the Company. The Company shall
communicate the rules and procedures which it
formulates hereunder to each Participant who applies
for a loan under the Plan.
(h) Loans shall be made available to all
Participants on a reasonably equivalent basis, except
that the Company may make reasonable distinctions based
upon creditworthiness, other obligations of the
Participant, state law restrictions affecting payroll
deductions and any other factors that may adversely
affect the ability to assure repayment through payroll
deduction, where applicable, or such other manner as
the Company may require. The Company may reduce or
refuse a requested loan where it determines that timely
repayment of the loan through payroll deduction is not
assured.
5.5 Order of Withdrawals; Adjustments. Amounts
withdrawn pursuant to this Article 5 in the case of any
Participant will be taken pro rata from each of the
investment options in which the Participant's Accounts are
invested (determined as of the Valuation Date coinciding
with or immediately preceding the date of the withdrawal).
ARTICLE 6. DISTRIBUTION OF BENEFITS
6.1 Separation from Service or Death. Following a
Participant's separation from service of the Company and the
Affiliated Companies for any reason other than death, the
Participant will receive the vested portion of his or her
Accounts as provided in this Article 6. If a Participant
dies before the complete distribution of the vested portion
of his or her Accounts, distribution will be made pursuant
to Section 6.6.
6.2 Method of Making Distributions. Distributions to
a Participant or Beneficiary from the Trust will normally be
made in a single lump sum cash payment. However, a
Participant who was a Participant in the Plan on December
31, 1988, may irrevocably elect, by notice given to the
Company in accordance with such rules and procedures as the
Company may establish for this purpose, to receive the
vested portion of his or her entire Accounts in cash
installments, the amount of each such installment to be
determined by dividing the former Participant's remaining
nonforfeitable Account balance by the number of payments
which remain to be made.
6.3 Direct Rollovers. If a Participant, a Beneficiary
who is the Participant's surviving spouse, or an alternate
payee of a Participant under a Qualified Domestic Relations
Order described in Section 9.7 is entitled to receive any
distribution under this Article 6 (other than a distribution
in installments elected under Section 6.2), he or she may
elect, at the time and in the manner prescribed by the
Company, to have any portion of the distribution paid
directly to an eligible retirement plan. For this purpose,
an "eligible retirement plan" is an individual retirement
account described in Code Section 408(a), an individual
retirement annuity described in Code Section 408(b), a
qualified plan described in Code Section 401(a), or an
annuity plan described in Code Section 403(a). However, in
the case of a distribution under this Section 6.3 to a
Participant's surviving spouse, an "eligible retirement
plan" is an individual retirement account or individual
retirement annuity.
The Company shall give a distributee notice of his or
her right to elect a direct rollover and an explanation of
the withholding consequences if not making the election.
Such notice shall be given no earlier than 90 days and no
less than 30 days before the date of distribution. However,
a distribution may commence before the expiration of the 30-
day period, at the election of the distributee, provided the
distributee is provided information clearly indicating his
or her right to such 30-day period.
6.4 Time of Distributions. Distribution with respect
to a Participant's separation from service will commence as
soon as practicable after the Participant's separation from
service. In the case of a Participant whose vested portion
of his or her Accounts is valued in excess of $5,000 and who
has not yet attained age 65, distribution may not be made
under this Section unless:
(a) between the 30th and 90th day prior to the
date distribution is to be made, the Company notifies
the Participant in writing that he or she may defer
distribution until age 65; and
(b) the Participant consents to the distribution
after the information described above has been provided
to him or her, and files such consent with the Company.
Notwithstanding the foregoing, a distribution may commence
less than 30 days after the notification under paragraph (a)
above is given, provided that the Company informs the
Participant that he or she has a right to a period of at
least 30 days after receiving the notice to consider any
distribution election and the Participant may rescind any
election to receive a distribution for a period of at least
seven days after the date the individual receives such
notice. For purposes of this Section, the vested portion of
a Participant's accounts will be considered to be valued in
excess of $5,000 if the value of such portion exceeds such
amount at the time of the distribution in question or
exceeded such amount at the time of any prior distribution
to the Participant under the Plan.
The failure of a Participant to consent to an immediate
distribution under paragraph (b) above shall be deemed to be
an election to defer commencement of the payment of benefits
as provided under Section 6.5. An individual who elects
deferral of a benefit under this Section 6.4 may at any time
subsequent to such election request a distribution of the
benefit deferred. The Company may prescribe such rules as
it deems necessary pertaining to the form of such a request
or to any information or signatures required with respect
thereto.
Distribution under this Section will be made in any
case not later than the earliest to occur of the following:
(1) the latest date for payment prescribed by Section 6.5,
(2) as soon as reasonably practicable after the Company is
notified of the Participant's death, or (3) as soon as
reasonably practicable after the Company receives from the
Participant and records a consent to distribution.
6.5 Latest Payment of Benefits. It is the general
intention of the Company to allow Participants whose account
balances exceed $5,000 at the time of separation from
service with the Company to leave their balances in the Plan
until they request a distribution. However, in order to
comply with the law, the following provisions may require
earlier distribution.
(a) In no event will any payment of benefits to a
Participant under the Plan commence later than the
earlier of the dates described in (1), (2) and (3),
where:
(1) is, unless otherwise elected by the
Participant in writing, the 60th day after the
close of the Plan Year in which occurs the latest
of the date on which the Participant attains age
65, the tenth anniversary of the year in which the
Participant commenced participation in the Plan,
and the date on which the Participant ceases to be
an Employee,
(2) is, for a Participant who is not a 5%
owner, April 1 following the calendar year during
which the Participant retires or attains age 70 1/2,
whichever is later, and
(3) is, for a Participant who is a 5% owner,
April 1 following the calendar year in which the
Participant attains age 70 1/2.
(b) Notwithstanding paragraph (a)(2), with
respect to any Participant who is not a 5% owner and
who attains age 70 1/2 on or after January 1, 1996, and on
or before December 31, 1998, the payment of the
Participant's Accounts shall commence no later than the
April 1 following the close of the calendar year in
which the Participant attains age 70 1/2 (or such later
date as may be permitted under guidance from the
Internal Revenue Service), unless such Participant
elects to delay such payment until he or she retires.
In addition, any Participant who is not a 5% owner and
who attained age 70 1/2 before January 1, 1996 may elect,
in accordance with rules and procedures established by
the Company, to stop receiving payments pursuant to
paragraph (a)(2) until such Participant retires.
(c) If a Participant remains an Employee after
the beginning of the year in which benefits are to
commence under paragraph (a)(3) above or under
paragraph (b), the Participant's Accounts shall be
distributed on or before the following April 1, and any
additional amounts credited to the Participant's
Accounts shall be distributed on or before each
subsequent December 31.
(d) Notwithstanding any other provision of the
Plan to the contrary, all benefit distributions under
the Plan shall be made in a manner consistent with
Section 401(a)(9) of the Code and regulations
thereunder, including Proposed Regulation section
1.401(a)(9)-2, to the extent such regulations remains
consistent with Code section 401(a)(9), as modified
from time to time.
For purposes of this Section 6.5, "5% owner" has the meaning
given it in Section 416(i)(B)(i) of the Code.
6.6 Distributions After a Participant's Death. If a
Participant dies before the complete distribution of his or
her Accounts, the Participant's Beneficiary will receive the
vested portion of the Participant's Accounts in a single sum
as provided in Section 6.2 as soon as practicable following
the Participant's death (but in no event later than December
31 of the calendar year following the year of the
Participant's death). The value of such Accounts shall be
determined as of the Valuation Date coinciding with or
immediately following receipt from the Beneficiary and
recording by the Company of a certified copy of the death
certificate for the Participant and the final distribution
form to be provided by the Company.
6.7 Notice to Trustee. The Company will notify the
Trustee whenever any Participant or Beneficiary is entitled
to receive a distribution under the Plan. In giving such
notice, the Company will specify the name and last known
address of the person receiving such distribution. Upon
receipt of such notice from the Company, the Trustee will,
as soon as is reasonably practicable, distribute such
amount.
6.8 Designation of Beneficiary.
(a) Subject to the provisions of this Section, a
Participant's Beneficiary shall be the person or
persons and entity or entities, if any, designated by
the Participant from time to time on a form approved by
the Company. A non-spouse Beneficiary designation by a
Participant who is married at the time of his or her
death shall not be effective unless
(i) prior to the Participant's death, the
Participant's surviving spouse consented to and
acknowledged the effect of the Participant's
designation of a specific non-spouse Beneficiary
(including any class of Beneficiaries or any contingent
Beneficiaries) on a written form approved by the
Company and witnessed by a notary public or a duly
authorized Plan representative; or
(ii) it is established to the satisfaction of the
Company that spousal consent may not be obtained
because there is no spouse, because the spouse has
died, because the spouse cannot be located, or because
of such other circumstances as the Secretary of the
Treasury may prescribe; or
(iii) the spouse had earlier executed a general
consent form permitting the Participant (A) to select
from among certain specified Beneficiaries without any
requirement of further consent by the spouse (and the
participant designates a Beneficiary from the specified
list), or (B) to change his or her beneficiary without
any requirement of further consent by the spouse. Any
such general consent shall be on a form approved by the
Company, and must acknowledge that the spouse has the
right to limit consent to a specific Beneficiary and
that the spouse voluntarily elects to relinquish such
right.
Notwithstanding the foregoing, the Company may, in its
discretion, determine whether a Beneficiary designation is
effective, and shall reject as ineffective any designation
first received by or presented to the Company after the
death of the Participant. In the event a spouse is legally
incompetent to give consent, the spouse's legal guardian,
even if the guardian is the Participant, may give consent on
behalf of the spouse. Any consent and acknowledgment by (or
on behalf of) a spouse, or the establishment that the
consent and acknowledgment cannot be obtained, shall be
effective only with respect to such spouse, but shall be
irrevocable once made.
(b) A Participant who has designated a
Beneficiary in accordance with this Section 6.8 may
change such designation at any time by giving written
notice to the Company, subject to the conditions of
this Section 6.8 and such additional conditions and
requirements as the Company may prescribe in accordance
with applicable law.
(c) If a Participant dies without a surviving
Beneficiary, the full amount payable upon his or her
death will be paid to his or her surviving spouse or,
if none, to his or her estate.
ARTICLE 7. ADMINISTRATION
7.1 Plan Administrator. For purposes of ERISA, the
plan administrator shall be the Company.
7.2 Powers. The Company will have full discretionary
power to administer the Plan in all of its details, subject,
however, to the requirements of ERISA. For this purpose the
Company's discretionary power will include, but will not be
limited to, the following authority:
(a) To make and enforce such rules and
regulations as it deems necessary or proper for the
efficient administration of the Plan;
(b) To interpret the Plan, its interpretation
thereof in good faith to be final and conclusive on any
Employee or other person;
(c) To decide all questions concerning the Plan
and the eligibility of any person to participate in the
Plan;
(d) To compute the amount of benefits which will
be payable to any Participant or other person in
accordance with the provisions of the Plan, and to
determine the person or persons to whom such benefits
will be paid;
(e) To authorize the payment of benefits;
(f) To authorize the payment of reasonable
expenses of administering the Plan in accordance with
Section 7.6.
(g) To keep such records and submit such filings,
elections, applications, returns or other documents or
forms as may be required under the Code and applicable
regulations, or under other federal, state or local law
and regulations;
(h) To appoint such agents, counsel, accountants,
consultants and record keepers as may be required to
assist in administering the Plan; and
(i) To allocate and delegate its fiduciary
responsibilities under the Plan, any such allocation or
designation to be by written instrument and in
accordance with Section 405 of ERISA.
7.3 Effect of Interpretation or Determination. Any
interpretation of the Plan or other determination with
respect to the Plan by the Company shall be final and
conclusive on all persons in the absence of clear and
convincing evidence that the Company acted arbitrarily and
capriciously.
7.4 Examination of Records. The Company will make
available to each Participant such of its records as pertain
to him or her, for examination at reasonable times during
normal business hours.
7.5 Reliance on Tables, Etc. In administering the
Plan, the Company will be entitled to the extent permitted
by law to rely conclusively on all tables, valuations,
certificates, opinions and reports which are furnished by an
actuary, accountant, trustee, counsel or other expert who is
employed or engaged by the Company.
7.6 Expenses of Plan. All expenses of administering
the Plan shall be paid from the Trust, unless otherwise paid
by the Company. The compensation of all agents, counsel or
other persons retained or employed by the Company to assist
in administrating the Plan shall be fixed by the Company and
shall be paid in the same manner as provided in the
preceding sentence.
7.7 Named Fiduciary. The Company will be a "named
fiduciary" for purposes of Section 402(a)(1) of ERISA with
authority to control and manage the operation and
administration of the Plan.
7.8 Reporting and Disclosure. The Company will be
responsible for complying with the reporting and disclosure
requirements of ERISA.
7.9 Withholding of Tax. Any distribution under the
Plan will in all events be subject to such tax and other
withholdings as may be required by the Code and applicable
regulations.
7.10 Indemnification of Company Members and
Assistants. The Company agrees to indemnify and defend to
the fullest extent of the law, any Employee or former
Employee who has been appointed to assist the Company in
administering the Plan or to whom the Company has delegated
any of its duties or responsibilities, against any
liabilities, damages, costs and expenses including
attorneys' fees or liability, including any sum paid in
settlement of any claim with the approval of the Board of
Directors, arising out of any act or omission to act in
connection with the Plan, if such act or omission is in good
faith.
7.11 Claims and Review Procedures.
(a) Claims Procedure. If any person believes he
or she is being denied any rights or benefits under the
Plan, such person may file a claim in writing with the
Company. If any such claim is wholly or partially
denied, the Company will notify such person of its
decision in writing. Such notification will contain
(i) specific reasons for the denial, (ii) specific
reference to pertinent plan provisions, (iii) a
description of any additional material or information
necessary for such person to perfect such claim and an
explanation of why such material or information is
necessary and (iv) information as to the steps to be
taken if the person wishes to submit a request for
review. Such notification will be given within 90 days
after the claim is received by the Company (or within
180 days, if special circumstances require an extension
of time for processing the claim, and if written notice
of such extension and circumstances is given to such
person within the initial 90 day period). If such
notification is not given within such period, the claim
will be considered denied as of the last day of such
period and such person may request a review of his or
her claim.
(b) Review Procedure. Within 60 days after the
date on which a person receives a written notice of a
denied claim (or, if applicable, within 60 days after
the date on which such denial is considered to have
occurred) such person (or his or her duly authorized
representative) may (i) file a written request with the
Company for a review of his or her denied claim and of
pertinent documents and (ii) submit written issues and
comments to the Company. The Company will notify such
person of its decision in writing. Such notification
will be written in a manner calculated to be understood
by such person and will contain specific reasons for
the decision as well as specific references to
pertinent plan provisions. The decision on review will
be made within 60 days after the request for review is
received by the Company (or within 120 days, if special
circumstances require an extension of time for
processing the request, such as an election by the
Company to hold a hearing, and if written notice of
such extension and circumstances is given to such
person within the initial 60 day period). If the
decision on review is not made within such period, the
claim will be considered denied.
7.12 Participant-Directed Investments. The Company
shall promulgate rules and procedures, identify Plan
fiduciaries and provide Participants with information with
respect to the investment options offered under the Plan,
not inconsistent with the express provisions of this Article
and Section 4.3, as it deems necessary or advisable for
purposes of satisfying the applicable requirements of ERISA
Section 404(c) and its regulations. All such rules and
procedures, identifications and information shall be deemed
to be a part of the Plan for purposes of Department of Labor
Regulation section 2550.404c-1.
ARTICLE 8. AMENDMENT AND TERMINATION OF PLAN
8.1 Amendment. The Company reserves the power at any
time or times to amend the provisions of the Plan and Trust
to any extent and in any manner that it may deem advisable
by written instrument, executed by an officer of the
Company, providing for such amendment. Any such instrument
will be effective in accordance with its terms as to all
Participants and all persons having or claiming any interest
hereunder. This power to amend shall be exercised by vote
of the Board of Directors, pursuant to the rules established
in the Company's By-Laws. However, notwithstanding this
provision of power, the Company will not have the power:
(a) to amend the Plan and Trust in such manner as
would cause or permit any part of the assets of the
Trust to be diverted to purposes other than for the
exclusive benefit of each Participant and his or her
Beneficiary, unless such amendment is permitted by law,
governmental regulations or ruling;
(b) to amend the Plan or Trust retroactively in
such a manner as would eliminate or reduce any benefit
attributable to service before the amendment to the
extent such elimination or reduction would be
prohibited under Section 411(d)(6) of the Code; or
(c) to amend the Plan or Trust in such manner as
would increase the duties or liabilities of the Trustee
unless the Trustee consents thereto in writing.
8.2 Termination. The Company has established the Plan
and authorized the establishment of the Trust with the bona
fide intention and expectation that contributions will be
continued indefinitely, but may discontinue contributions
under the Plan or terminate the Plan at any time by written
notice delivered to the Trustee without liability whatsoever
for any such discontinuance or termination.
8.3 Binding Effect on Participating Employers. Any
amendment or termination of the Plan by the Company under
Sections 8.1 or 8.2 shall bind all of the other
Participating Employers without the requirement for action
or consent on the part of any such Participating Employer.
In addition, no Participating Employer other than the
Company shall have any power to amend, modify, suspend or
terminate the Plan as to its own or any other Participating
Employer's participation therein, and all such power is
exclusively vested in the Company. In addition, the Plan
shall be treated as if it were maintained by a single
employer, and the withdrawal from participation in the Plan
of one or more Participating Employers shall not be deemed
to be a termination or partial termination of the Plan with
respect to the Participants employed by such Participating
Employer or Employers unless required to be treated as such
by applicable laws or regulations.
8.4 Distributions Upon Termination of the Plan. Upon
termination of the Plan or complete discontinuance of
contributions thereunder, each affected Participant
(including a terminated Participant in respect of amounts
not previously forfeited by him or her) will have a fully
vested and nonforfeitable interest in his or her Accounts,
and the Trustee will make prompt distribution to each
Participant or other person entitled to distribution of an
amount equal to his or her Accounts, in a lump sum payment,
subject to Treasury regulation section 1.411(a)-11(e).
However, if a successor plan is maintained or established
within the meaning of Treasury regulation section 1.401(k)-
1(d)(3), distributions shall be made to Participants and
their Beneficiaries only in accordance with Article 6. Upon
the completion of distributions to all Participants and
Beneficiaries, the Trust will terminate, the Trustee will be
relieved from all liability under the Trust, and no
Participant or other person will have any claims thereunder,
except as required by applicable law.
Notwithstanding the foregoing, if the Plan and Trust
(or any portion thereof) are terminated in connection with
the merger into, or transfer to, another plan and trust,
distributions shall not be made upon termination but shall
be governed by the successor or transferee plan and trust.
8.5 Amounts Transferred From Other Plans. From time
to time the Company may determine to merge or consolidate
another tax-qualified plan with, or transfer all or a
portion of the assets and liabilities of another tax-
qualified plan to, the Plan, whether in connection with an
acquisition by the Company or otherwise. Such merger,
consolidation or transfer of amounts from another plan to
the Plan may occur only if the Company determines that the
requirements of Code section 414(l) will be satisfied with
respect to the affected participants of the other plan and
that such merger, consolidation or transfer will not
jeopardize the Plan's tax qualification under section 401(a)
of the Code.
In connection with any such merger, consolidation or
transfer, an individual whose benefits are transferred to
the Plan will not become a Participant until he or she has
satisfied the eligibility requirements of Article 2 but
shall be treated as a Participant (with respect to such
transferred benefit) for purposes of Articles 4, 5, 6, 7, 8
and 9. To the extent necessary to satisfy the requirement
of Code section 411(d)(6), or as otherwise determined by the
Company, forms of benefit distributions with respect to
transferred amounts shall be preserved hereunder. The
Company may provide for the separate accounting of benefits
transferred pursuant to this Section to the extent it deems
such separate accounting necessary or appropriate to carry
out the provisions of this Section.
8.6 Merger or Consolidation of Plan; Transfer of Plan
Assets. In case of any merger or consolidation of the Plan
with, or transfer of assets and liabilities of the Plan to,
any other plan, provision must be made so that each
Participant would, if the Plan then terminated, receive a
benefit immediately after the merger, consolidation, or
transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the
merger, consolidation, or transfer if the Plan had then
terminated.
8.7 Successor Employers. In the event of the
dissolution, merger, consolidation or reorganization of a
Participating Employer or all Participating Employers,
provision may be made by which the Plan and the Trust will
be continued by or under the sponsorship of the successor
employer; and in that event, such successor shall be
substituted for the Participating Employer or Employers
under this Plan. This substitution of the successor shall
constitute an assumption of the applicable Plan liabilities
by the successor, and the successor shall have all of the
powers (if any), duties and responsibilities of the replaced
Participating Employer or Employers under the Plan.
8.8 Participating Employer Ceasing to be Affiliated.
In the event a Participating Employer (other than the
Company) ceases to be a subsidiary or other affiliate of the
Company as a result of a merger, reorganization, or sale or
other transfer of stock, the following provisions shall
apply:
(a) Such Participating Employer shall thereupon
cease to be a Participating Employer under the Plan.
(b) The Plan shall not terminate with respect to
the Participants employed by such former Participating
Employer solely because it ceased to be a Participating
Employer.
(c) The Company may agree with such former
Participating Employer (or with an organization
acquiring the former Participating Employer) that the
assets of the Trust properly allocable to Participants
employed by the former Participating Employer be
transferred to another plan maintained by the former
Participating Employer (or by such other organization),
provided that the requirements of Section 8.6 are
satisfied and such other plan assumes all liabilities
of the Plan with respect to such Participants. The
Company shall direct the Trustee to carry out such
transfer in accordance with the terms of such
agreement.
ARTICLE 9. MISCELLANEOUS
9.1 Voting of Stock. Before each annual or special
meeting of the stockholders of the Company, the Company
shall cause to be sent to each Participant whose Plan
Accounts are invested in the EMC Stock Fund a copy of the
proxy solicitation material therefor, together with a form
requesting confidential instructions to the Trustee on how
to vote the number of shares of Stock representing the
Participant's interest in the EMC Stock Fund. Upon receipt
of such instructions, the Trustee shall vote the shares of
Stock as instructed. Instructions received from individual
Participants by the Trustee shall be held in the strictest
confidence and shall not be divulged or released to any
person, including officers or employees of the Company. At
the direction of the Company, the Trustee shall vote, in
person or by proxy at its discretion, shares of the Stock
held in the Trust for which voting instructions shall not
have been received.
9.2 Tender or Exchange Offers. The provisions of this
Section shall apply in the event a tender or exchange offer
(hereinafter, a "tender offer") for Stock is commenced by a
person or persons.
(a) Certain Tender Offers Not Approved by
Continuing Directors. In the event a tender offer not
approved by the continuing directors (as hereinafter
defined) for Stock is commenced by a person or persons
other than (i) the Company, (ii) any other Affiliated
Company (determined as of the date immediately
preceding the commencement of the tender offer), (iii)
the Plan, or (iv) any other employee benefit plan
maintained by an Affiliated Company (determined as of
the date immediately preceding the commencement of the
tender offer), the Company and the Trustees, promptly
after receiving notice of the commencement of any such
tender offer, shall transfer all recordkeeping
functions and responsibilities under the Plan to an
independent recordkeeper. The independent recordkeeper
in turn shall confidentially solicit from each
Participant and Beneficiary to whose accounts units
representing an interest in shares of Stock are
allocated, instructions as to whether those shares are
to be tendered or held. Each Participant and
Beneficiary shall be given the right of instruction as
to that number of shares of Stock which bears the same
relationship to the total number of shares of Stock for
which unit interests are allocated to individual
Accounts under the Plan, as the number of units
allocated to such Participant's or Beneficiary's
Accounts bears to the total number of units allocated
to individual Accounts under the Plan. On the basis of
these instructions, the recordkeeper shall determine a
fraction, the numerator of which is the total number of
shares of Stock for which it has received instructions
to tender and the denominator of which is the total
number of shares of Stock as to which unit interests
are allocated under the Plan to the individual Accounts
of Participants and Beneficiaries. The recordkeeper
shall then multiply this fraction by the total number
of shares of Stock held in the Trust and shall instruct
the Trustee to tender, and the Trustee shall tender
from among the shares of Stock held in the Trust, that
number of shares of Stock which equals the resulting
product. The Trustee shall not tender shares of Stock
in excess of the number so authorized to be tendered.
Following any tender offer described in the
preceding paragraph that has resulted in the sale or
exchange of any shares or Stock held in the Trust, the
recordkeeper shall continue to maintain on a
confidential basis the accounts of Participants and
Beneficiaries to whose Accounts units representing an
interest in shares of Stock were allocated at any time
during such offer, until complete distribution of such
Accounts. In the event that there is no sale or
exchange of any shares of Stock held in the Trust
pursuant to the tender offer, the recordkeeper shall
transfer back to the Trustees and the Company the
recordkeeping functions, provided, however, it shall
keep confidential any instructions which it may have
received from Participants and Beneficiaries relating
to the tender offer.
(b) Other Tender Offer. In the event of a tender
offer not covered by paragraph (a) above, the Trustees
shall solicit from each Participant and Beneficiary to
whose Accounts units representing interests in shares
of Stock are allocated, instructions as to whether
shares are to be tendered or held. Each Participant
and Beneficiary shall be given the right of instruction
as to that number of shares of Stock which bears the
same relationship to the total number of shares of
Stock for which unit interests are allocated to
individual Accounts under the Plan, as the number of
units allocated to such Participant's or Beneficiary's
Accounts bears to the total number of units allocated
to individual Accounts under the Plan. On the basis of
these instructions, the Trustees shall determine a
fraction, the numerator of which is the total number of
shares of Stock for which it has received instructions
to tender and the denominator of which is the total
number of shares of Stock as to which unit interests
are allocated under the Plan to the individual Accounts
of Participants and Beneficiaries. The Trustees shall
then multiply this fraction by the total number of
shares of Stock held in the Trust and shall tender,
from among those shares of Stock held in the Trust,
that number of shares of Stock which equals the
resulting product. The Trustees shall not tender
shares of Stock in excess of the number so authorized
to be tendered.
(c) Other. For purposes of allocating the
proceeds of any sale or exchange pursuant to a tender
offer, the Company or the independent recordkeeper, as
the case may be, shall treat as having been sold or
exchanged first those shares of Stock as to which,
immediately prior to the sale or exchange, unit
interests were allocated to individual Accounts. Any
proceeds remaining after application of the preceding
sentence shall be treated as proceeds from the sale or
exchange of unallocated shares, if any. Any
adjustments to individual accounts pursuant to the
provisions of the Plan shall be made by the Company or
the independent recordkeeper, as the case may be, on
information supplied by the Company or the Trustees.
(d) Definition of "Continuing Director". For
purposes of this Section, a "continuing director" is
any director of the Company (i) who has continuously
been a director of the Company since January 1, 1998 or
(ii) who is a successor of a continuing director (as
defined in (i)) if such successor (and any intervening
successor) shall have been recommended or elected to
succeed a continuing director by a majority of the then
continuing directors.
9.3 Limitation of Rights. Neither the establishment
of the Plan and the Trust, nor any amendment thereof, nor
the creation of any fund or account, nor the payment of any
benefits, will be construed as giving to any Participant or
other person any legal or equitable right against any
Participating Employer, the Company (or any member thereof)
or the Trustee except as provided herein; and in no event
will the terms of employment or service of any Participant
be modified or in any way be affected hereby. It is a
condition of this Plan, and each Participant expressly
agrees by his or her participation herein, that each
Participant will look solely to the assets held in the Trust
for the payment of any benefit to which he or she is
entitled under the Plan.
9.4 Payments to Minors and Incompetents. If the
Company receives evidence satisfactory to it that any person
entitled to receive any benefit payments under the Plan is,
at the time when such benefit payments are payable, a minor
or physically or mentally incompetent to receive such
benefit and to give a valid release therefor, and that
another individual or an institution is then maintaining or
has custody of such person, and that no guardian or other
representative of the estate of such person has been duly
appointed, the Company may authorize payment of such benefit
otherwise payable to such person or such other individual or
institution, and the release of such other individual or
institution will be valid and complete discharge for the
payment of such benefit.
9.5 Governing Law. The Plan and all provisions
thereof will be governed by the laws of the Commonwealth of
Massachusetts to the extent such laws are not inconsistent
with, or preempted by, ERISA or other Federal law.
9.6 Nonalienability of Benefits. The benefits
provided hereunder will not be subject to alienation,
assignment, garnishment, attachment, execution or levy of
any kind, and any attempt to cause such benefits to be so
subjected will not be recognized, except to such extent as
may be required by law.
The provisions of the preceding paragraph shall apply
in general to the creation, assignment or recognition of a
right to any benefit payable with respect to a Participant
pursuant to a domestic relations order. Notwithstanding the
foregoing, if such order is a Qualified Domestic Relations
Order, the provisions of the preceding paragraph shall not
apply.
9.7 Payment Under Qualified Domestic Relations Orders.
Notwithstanding any provisions of the Plan to the contrary,
if there is entered any Qualified Domestic Relations Order
that affects the payment of benefits hereunder, such
benefits shall be paid in accordance with the applicable
requirements of such Order. Particularly, but not in
limitation of the foregoing, distribution may be made to an
alternate payee pursuant to the terms of a Qualified
Domestic Relations Order before the affected Participant is
otherwise entitled to receive a distribution from the Plan.
The Company shall establish procedures to determine whether
an order or other decree is a Qualified Domestic Relations
Order, and to administer distributions under such Orders.
9.8 Information Between Company and Trustee. The
Company will furnish to the Trustee, and the Trustee will
furnish to the Company, such information relating to the
Plan and Trust as may be required under the Code and any
regulations issued or forms adopted by the Treasury
Department thereunder or under the provisions of ERISA and
any regulations issued or forms adopted by the Labor
Department thereunder.
9.9 Veterans' Re-Employment and Benefits Rights.
Notwithstanding any provision of the Plan to the contrary,
contributions, benefits and service credit with respect to
qualified military service will be provided in accordance
with Code section 414(u). In addition, loan repayments will
be suspended under the Plan as permitted under Section
414(u)(4) of the Code.
ARTICLE 10. LIMITS ON CONTRIBUTIONS.
10.1 Code Section 404 Limits. The sum of the
contributions made by each Participating Employer under the
Plan for any Plan Year shall not exceed the maximum amount
deductible under the applicable provisions of the Code. All
contributions under the Plan made by a Participating
Employer are expressly conditioned on their deductibility
under Code section 404 for the taxable year when paid (or
treated as paid under Code section 404(a)(6)).
10.2 Code Section 415 Limits. Each Plan Year, the
requirements of Code section 415, hereby incorporated by
reference into the Plan, shall apply to limit contributions
under the Plan.
(a) Order of reduction. To the extent necessary
to satisfy the limitations of Code Section 415 for any
Participant, the Annual Addition which would otherwise
be made on behalf of a Participant under the Plan shall
be reduced after the Participant's benefit is reduced
under any and all defined benefit plans, and after the
Participant's Annual Addition is reduced under any
other defined contribution plan.
(b) Correction of excess Annual Addition. The
Company, to the extent necessary to satisfy the
foregoing limitations in the case of any Participant,
shall: (i) first, reduce any future contributions
remaining to be made for the Limitation Year for the
benefit of the Participant; (ii) second, if a reduction
is necessary in respect of amounts already contributed,
return to the affected Participant his or her Pre-Tax
Employee Contributions while transferring any related
Matching Contributions (and earnings) to a suspense
account within the Plan, to be applied or allocated as
hereinafter provided; and (iii) if a further reduction
is necessary, transfer any Discretionary Profit-Sharing
Contributions (and earnings) for the benefit of the
Participant to a suspense account within the Plan, to
be applied or allocated as hereinafter provided.
Amounts held in a suspense account pursuant to the
preceding sentence shall be used to reduce Matching
Contributions for the benefit of the effected
Participant during the next Limitation Year (and
succeeding Limitation Years, if any), provided the
Participant is an Eligible Employee. If the
Participant ceases to be an Eligible Employee, any
amount remaining in such suspense account shall be
applied toward Matching Contributions for remaining
Participants. If for any Plan Year a Discretionary
Profit-Sharing Contribution but no Matching
Contribution is made to the Trust, any amounts that
would have been applied under this Section to Matching
Contributions shall instead be applied to reduce
Discretionary Profit-Sharing Contributions.
10.3 Code Section 402(g) Limits. The maximum amount of
Pre-Tax Employee Contributions made on behalf of any
Participant for any calendar year, when added to the amount
of elective deferrals under all other plans, contracts and
arrangements of the Company and all Affiliated Companies
with respect to the Participant for the calendar year, shall
in no event exceed the maximum applicable limit in effect
for the calendar year under Section 402(g) of the Code
($10,000 in 1998).
10.4 Code Section 401(k)(3) Limits.
(a) Certain prospective adjustments in Pre-Tax
Employee Contributions. If at any time during a Plan
Year the Company determines that the nondiscrimination
standard of Code section 401(k)(3), hereby incorporated
by reference and described below, may not be satisfied
(or that the limitations set forth in Section 10.2 may
be exceeded) by reason of excessive Pre-Tax Employee
Contributions made or to be made for such Year, the
Company may decrease the rate of future contributions
under Section 3.1 for the Plan Year to the extent it
deems such a decrease to be necessary or appropriate to
satisfy or meet the aforesaid standard or limitations
(or both). In the event of any such decrease in a
contribution made for the benefit of any Participant,
the amount by which the Participant's Compensation is
reduced will be appropriately adjusted.
(i) The nondiscrimination standard referred
to in the preceding paragraph will be satisfied
for a Plan Year if either of the following tests
is satisfied: (A) the average of the ratios of
all Pre-Tax Employee Contributions to Compensation
("Deferral Ratios") for the Plan Year for all
highly compensated Participants does not exceed
the product of 1.25 times the average of the
Deferral Ratios for the immediately preceding Plan
Year for all Participants other than highly
compensated Participants as determined for such
preceding Plan Year (including those Participants
who do not make an election under Section 3.1); or
(B) the excess of the average of the Deferral
Ratios for the Plan Year for all highly
compensated Participants over the average of the
Deferral Ratios for the immediately preceding Plan
Year for all Participants other than highly
compensated Participants as determined for such
preceding Plan Year is not more than two
percentage points, and the average of the Deferral
Ratios for the Plan Year for all highly
compensated Participants does not exceed the
product of two times the average of the Deferral
Ratios for the immediately preceding Plan Year for
all Participants other than highly compensated
Participants as determined for such preceding Plan
Year.
For purposes of these tests, "highly
compensated Participants" for a Plan Year includes
only those Participants who would be considered
highly compensated employees for such Plan Year
under section 414(q) of the Code without regard to
the "top-paid group" rule of Code section
414(q)(1)(B)(ii).
In the event that the Plan satisfies the
requirements of Code sections 401(k), 410(a)(4) or
401(b) only if aggregated with one or more other
plans with the same plan year, or if one or more
of the plans with the same plan year satisfy such
Code sections only if aggregated with the Plan,
then this Section 10.4(a) shall be applied by
determining the deferral ratios as if as such
plans were a single plan, provided that each such
plan uses the same testing method ("prior year
testing method described above). Also, if, in
addition to this Plan, a highly compensated
Participant for the Plan Year is eligible to have
elective deferrals (including qualified matching
contributions, to the extent treated as elective
deferrals) allocated to his or her accounts under
any other cash or deferred arrangement described
in Code section 401(k) and maintained by the
Employer, the highly compensated Participant's
Deferral Ratio shall be determined as if the
additional elective deferrals, if any, are made
under this Plan.
(ii) If the Company determines pursuant to
this Section 10.4(a) to decrease the rate of
contributions under Section 3.1 in order to
satisfy the nondiscrimination standard described
above, any such decrease shall be affected by a
method determined by the Company in its discretion
to satisfy the nondiscrimination requirement
described in this Section 10.4(a).
(iii) If the Company requires a decrease in
the rate of Pre-Tax Employee Contributions in
order to meet the requirements of Section 10.2
with respect to any Participant, only those
contributions which would have been made for the
benefit of the Participant will be decreased.
(iv) Notwithstanding the foregoing, for the
Plan Year beginning January 1, 1997, the Plan used
the "current year" testing method, under which
subparagraph (i) above was applied by comparing
Deferral Ratios for the Plan Year of highly
compensated Participants to Deferral Ratios for
the same Plan Year of Participants other than
highly compensated Participants.
(b) Excess contributions returned. If,
notwithstanding the adjustments described in paragraph
(a), the Company determines that the nondiscrimination
standard of Code section 401(k)(3), described in
paragraph (a), will not be (or has not been) satisfied
for such Year, excess contributions (as hereinafter
defined) for such Year shall be returned to
Participants within 2 1/2 months after the close of the
Plan Year, in accordance with and subject to the
following rules:
(i) No return of contributions pursuant to this
Section shall be effected except in accordance with
section 401(k)(8) of the Code.
(ii) The Company shall determine the excess Pre-
Tax Employee Contributions attributable to each highly
compensated Participant by: (A) first, treating Pre-
Tax Employee Contributions made on behalf of all highly
compensated Participants as having been reduced in the
order of the Participants' respective Deferral Ratios,
beginning with the largest such Ratio, until the
Deferral Ratios for the highly compensated Participants
(as so reduced) would satisfy the nondiscrimination
standard of subparagraph (a)(i) above; and (B) second,
aggregating the excess contributions determined under
clause (A). The Company shall then cause an amount
equal to the aggregate amount of such excess to be
distributed to highly compensated Participants as
follows: (1) first, highly compensated Participants
shall be ranked in descending order based on the
amounts of Pre-Tax Employee Contributions that were
contributed to the Plan for their benefit; and (2)
second, there shall be distributed to the Participant
with the highest dollar amount of Pre-Tax Employee
Contributions the amount required to cause that
Participant's undistributed Pre-Tax Employee
Contributions to equal the dollar amount of the Pre-Tax
Employee Contributions for the benefit of the highly
compensated Participant with the next highest dollar
amount of Pre-Tax Employee Contributions. These steps
shall be repeated until the aggregate amount of Pre-Tax
Employee Contributions so distributed equals the
aggregate amount of excess Pre-Tax Employee
Contributions determined under the first sentence of
this subparagraph (b)(ii). There shall be distributed
together with any Pre-Tax Employee Contributions that
are returned under this subsection earnings
attributable to such contributions, as determined by
the Company in a manner consistent with applicable
regulations.
(iii) Pre-Tax Employee Contributions for the
benefit of a Participant which are returned as a result
of this Section shall not be taken into account in
determining the amount of Matching Contributions to be
made for the Participant's benefit. To the extent
Matching Contributions have already been made with
respect to the Pre-Tax Employee Contributions at the
time the Pre-Tax Employee Contributions are determined
to be excess contributions, such Matching Contributions
shall be distributed to the Participant at the same
time the Pre-Tax Employee Contributions are returned.
10.5 Code Section 401(m) Limits.
(a) In General. Matching Contributions made
under the Plan are subject to the limits of Code
section 401(m), as more fully described below. The
Plan provisions relating to the 401(m) limits are to be
interpreted and applied in accordance with Code
sections 401(m) and 401(a)(4), which are hereby
incorporated by reference, and in such manner as to
satisfy such other requirements relating to Code
section 401(m) as may be prescribed by the Secretary of
the Treasury from time to time.
(b) Limits. In addition to the limitations of
Sections 10.1 and 10.2, Matching Contributions for any
Plan Year shall be limited so that the
nondiscrimination standard described in this subsection
is satisfied. The nondiscrimination standard described
in this subsection is satisfied if and only if:
(i) either (A) the average of the ratios of
all Matching Contributions to Compensation (the
"Contribution Ratios") for the Plan Year for all highly
compensated Participants does not exceed 1.25 times the
average of the Contribution Ratios for the immediately
preceding Plan Year for all Participants other than
highly compensated Participants as determined for such
preceding Plan Year, or (B) the excess of the average
of the Contribution Ratios for the Plan Year for all
highly compensated Participants over the average of the
Contribution Ratios for the immediately preceding Plan
Year for all Participants other than highly compensated
Participants as determined for such preceding Plan Year
is not more than two percentage points, and the average
of the Contribution Ratios for the Plan Year for all
highly compensated Participants does not exceed the
product of two times the average of the Contribution
Ratios for the immediately preceding Plan Year for all
Participants other than highly compensated Participants
as determined for such preceding Plan Year; and
(ii) after taking into account Pre-Tax
Employee Contributions made for the Plan Year for the
benefit of highly compensated Participants, the so-
called "multiple use" limitations of Treasury
regulation section 1.401(m)-2 have not been exceeded.
For purposes of these determinations, "highly compensated
Participants" has the same meaning as in Section 10.4. Pre-
Tax Employee Contributions not applied to satisfy the Code
section 401(k)(3) limits described in Section 10.4 above may
be treated as Matching Contributions for purposes of the
limitations described in this Section to the extent
permitted by Treasury regulation section 1.401(m)-1(b)(5).
In the event that the Plan satisfies the requirements of
Code sections 401(k), 410(a)(4), or 410(b) only if
aggregated with one or more other plans with the same plan
year, or if one or more other plans with the same plan year
satisfy such Code sections only if aggregated with this
Plan, then this Section shall be applied by determining the
ratios of Matching Contributions to Compensation as if all
such plans were a single plan, provided that each such plan
uses the same method of testing as the Plan ("prior year"
testing method described above).
Notwithstanding the foregoing, for the Plan Year
beginning January 1, 1997, the Plan used the "current year"
testing method, under which subparagraph (i) above was
applied by comparing Contribution Ratios for the Plan Year
of highly compensated Participants to Contribution Ratios
for the same Plan Year of Participants other than highly
compensated Participants.
(c) Adjustments; return. Notwithstanding Section
3.2 above, if the amount determined to be contributed
to the Trust for any Plan Year as Matching
Contributions would result in a failure to satisfy the
limitations of paragraph (b) above, then the Matching
Contributions to be contributed to the Trust for the
benefit of highly compensated Participants shall be
reduced in such manner and to such extent as the
Company determines to be necessary to satisfy such
limitations. If, notwithstanding such precautions,
Matching Contributions made to the Trust for a Plan
Year exceed the limitations of paragraph (b) above, the
excess of such contributions shall be determined and
distributed as follows. First, the amount of excess
shall be determined by treating Matching Contributions
(and any other contributions treated as Matching
Contributions) made for the benefit of highly
compensated Participants as having been reduced in the
order of their respective Contribution Ratios,
beginning with the largest such ratio, until the
Contribution Ratios for the highly compensated
Participants (as so reduced) would satisfy the
nondiscrimination standard of paragraph (b) above.
Second, the amount of the excess contributions
determined under the preceding sentence shall be
aggregated. Third, the aggregate excess amount so
determined shall be distributed by (i) ranking highly
compensated Participants in descending order based on
the amounts of Matching Contributions (and any other
contributions treated as Matching Contributions) made
for their benefit, and (ii) then distributing to the
Participant with the highest dollar amount of such
contributions the amount necessary to cause the
undistributed portion of such contributions to equal
the dollar amount of Matching Contribution (and any
other contributions treated as Matching Contributions)
for the benefit of the highly compensated Participant
with the next highest amount of such contributions, and
so forth until the entire aggregate excess amount of
Matching Contributions and any other contributions
treated as Matching Contributions has been distributed.
There shall be distributed together with any
contributions distributed under the preceding sentence
earnings attributable to such contributions, as
determined by the Company in a manner consistent with
applicable regulations. Any excess Matching
Contributions distributed in accordance with this
subsection shall nevertheless be treated as employer
contributions for purposes of Code sections 401(a)(4),
404, and 415.
10.6 Return of Contributions. All contributions under
the Plan shall be made on the condition that they would be
deductible under section 404 of the Code. If it is later
determined that a contribution made by a Participating
Employer was not deductible, the Trustee shall, upon request
by the Participating Employer, return such contribution to
the Participating Employer. In addition, if a contribution
by a Participating Employer to the Trust is made by reason
of a good faith mistake of fact, the Trustee will, upon
request by the Participating Employer, return to such
Participating Employer the excess of the amount contributed
over the amount, if any, that would have been contributed
had there not occurred a mistake of fact. In each case, the
amount of the contribution to be returned shall be reduced
by the losses of the Trust attributable thereto, if and to
the extent such losses exceed the gains and income
attributable thereto.
If the excess amount described in the preceding
paragraph has been credited to the Accounts of Participants,
the amount returned under this Section 10.6 shall be
subtracted from each Participant's Accounts in proportion to
the portion of the excess amount allocated to the
Participant. However, if, as a result of distributions from
the Trust, the balance of a Participant's Accounts are less
than the amount to be subtracted from them under the
preceding sentence, the amount returned shall be reduced by
the difference, and the Accounts of other Participants shall
not be further adjusted under the preceding sentence. In no
event shall the return of a contribution hereunder cause any
Participant's Accounts to be reduced to less than they would
have been had the mistaken or nondeductible amount not been
contributed.
No return of a contribution will be made more than one
year after the mistaken payment of the contribution or the
determination that the contribution would not have been
deductible, as the case may be.
ARTICLE 11. SPECIAL TOP HEAVY PROVISIONS.
11.1 Special Contribution for Top Heavy Plan Years.
Notwithstanding anything contained in the Plan to the
contrary, if for any top heavy plan year the Discretionary
Profit-Sharing Contribution made for the benefit of any
Participant who is not a key employee for that year is less
than three percent of such Participant's Compensation, a
special contribution shall be made hereunder so that the sum
of the special contribution and Discretionary Profit-Sharing
Contribution equals three percent of the Participant's
Compensation; provided, however, that if for such top heavy
plan year the sum of the Voluntary, Matching and
Discretionary Profit-Sharing Contributions made for the
benefit of each key employee, expressed as a percentage of
his or her Compensation, is less than three percent, the
minimum contribution required under this Section 11.1 for
the benefit of each Participant who is not a key employee
will be limited to an amount which, when added to the
Discretionary Profit-Sharing Contributions made for the
benefit of such Participant, constitutes a percentage of
such Participant's Compensation not less than the highest
percentage obtained by dividing, for each key employee, the
sum of the Voluntary, Matching and Discretionary Profit-
Sharing Contributions made for the benefit of such key
employee by his or her Compensation. In applying the
preceding sentence, there shall be aggregated with
contributions made for a Participant's benefit under the
Plan all Employer contributions (other than voluntary
contributions, in the case of a Participant who is not a key
employee) for the benefit (and forfeitures allocated to the
account) of the Participant under all qualified defined
contribution plans (if any) required to be aggregated with
the Plan pursuant to the first sentence of
Section 11.3(b)(iii), subject to the special rule of Code
section 416(c)(2)(B)(ii)(II).
Notwithstanding the foregoing, no amount shall be
required to be contributed pursuant to this Section in
respect of any Participant for any year if, by reason of
amounts contributed or benefits accrued with respect to such
Participant of such year under one or more other plans
maintained by the Employer, a contribution in respect of
such Participant for such year under this Section would
result in the duplication of minimum benefits or
contributions, as determined under section 416(f) of the
Code and the regulations thereunder.
Any additional contribution made for the benefit of any
Participant under this Section shall be credited to his or
her Discretionary Profit-Sharing Contribution Account as
soon as practicable after the close of the Plan Year for
which the contribution is made.
11.2 Adjustment to Limitations. For any Plan Year
which is a top heavy plan year, the adjustment described in
Section 416(h) of the Code will apply for purposes of
determining a Participant's "defined benefit plan fraction"
(as determined under Section 415(e)(2) of the Code and the
regulations promulgated thereunder) and "defined
contribution plan fraction" (as determined under Section
415(e)(3) of the Code and the regulations promulgated
thereunder, including, if elected, the special transition
rule of Section 415(e)(7) of the Code) unless (a) the Plan
and each qualified plan with which the Plan is required to
be aggregated pursuant to the first sentence of Section
11.3(b)(iii) satisfies the requirements of Section
416(h)(2)(A) of the Code, and (b) such Plan year would not
be a top heavy plan year if "ninety percent" were
substituted for "sixty percent" in the first paragraph of
Section 11.3(b).
11.3 Definitions. As used in this Article, the
following words shall have the following meaning:
(a) "Key employee" means any Employee or
Beneficiary who is a "key employee" within the meaning
of section 416(i) of the Code and the regulations
promulgated thereunder. For purposes of determining
who is a key employee, the compensation taken into
account shall be the individual's Compensation. Any
Employee (and any Beneficiary of an Employee) who is
not a key employee shall be a non-key employee.
(b) "Top heavy plan year" means a Plan Year in
which the sum of the account balances of all key
employees under the Plan and under each other qualified
defined contribution plan (as of the applicable
determination date of each such plan) which is
aggregated with this Plan plus the sum of the present
value of the total accrued benefits of all key
employees under each qualified defined benefit plan (as
of the applicable determination date of each such plan)
which is aggregated with this Plan exceeds 60 percent
of the sum of such amounts for all Employees, former
Employees and Beneficiaries (other than former key
employees) under such plans.
The following rules shall apply for purposes of
the foregoing determination:
(i) all determinations hereunder will be computed
in accordance with section 416 of the Code and the
regulations promulgated thereunder, which are
specifically incorporated herein by reference.
(ii) The term "determination date" means, with
respect to the initial plan year of a plan, the last
day of such plan year and, with respect to any other
plan year of a plan, the last day of the preceding plan
year of such plan. The term "applicable determination
date" means, with respect to the Plan, the
determination date of the Plan Year of reference and,
with respect to any other plan, the determination date
for any plan year of such plan which falls within the
same calendar year as the applicable determination date
of the Plan. Accrued benefits or account balances
under a plan will be determined as of the most recent
valuation date of the plan; provided, however, that in
the case of a defined benefit plan such valuation date
must be the same date as is employed for computing plan
costs for minimum funding purposes, and in the case of
a defined contribution plan the value so determined
will be adjusted for contributions made after the
valuation date to the extent required by applicable
Treasury regulations.
(iii) There shall be aggregated with this Plan
(A) any other plan of an Employer under which at least
one key employee participates and which is able to
satisfy the requirements of sections 401(a)(4) or 410
of the Code by reason, at least in part, of the
existence of this Plan, and (B) if at least one key
employee is a Participant hereunder, any other plan of
an Employer (1) in which a key employee participates or
(2) which enables another such plan (including, but not
limited to, the Plan) to satisfy the requirements of
sections 401(a)(4) or 410 of the Code. Any plan of an
Employer not required to be aggregated with the Plan
may nevertheless, at the discretion of the Company, be
aggregated with the Plan if the benefits and coverage
of all aggregated plans would continue to satisfy the
requirements of sections 401(a)(4) and 410 of the Code.
ARTICLE 12. DEFINITIONS
Wherever used herein, a pronoun or adjective in the
masculine gender includes the feminine gender, the singular
includes the plural, and the following terms have the
meanings set forth below, unless a different meaning is
clearly required by the context.
12.1 "Accounts" mean, for any Participant, the accounts
established under the Plan to which contributions made for
the Participant's benefit, and any allocable income,
expense, gain and loan, are allocated.
12.2 "Affiliated Company" means (i) the Company, (ii)
any corporation which is a member of a controlled group of
corporations (as defined in section 414(b) of the Code) with
the Company, (iii) any trade or business, whether or not
incorporated, which is under common control (as defined in
section 414(c) of the Code) with the Company, (iv) any trade
or business which is a member of an affiliated service group
(as defined in section 414(m) of the Code) of which the
Company is also a member; or (v) any other corporation,
trade or business after the Board of Directors in its
discretion declares it to be an "Affiliated Company."
Solely for the purposes of Section 10.2, Sections 414(b) and
414(c) of the Code will be considered modified as provided
in Section 415(h) of the Code.
12.3 "Annual Addition" means, in the case of any
Participant for any Limitation Year, the sum of all amounts
contributed for such year by a Participating Employer and
credited to the Participant's Accounts under the Plan,
including amounts, if any, returned to the Participant
pursuant to Sections 10.3 and 10.4.
12.4 "Beneficiary" means the person entitled to receive
a death benefit with respect to a Participant under Article
6.
12.5 "Board of Directors" means the Board of Directors
of the Company.
12.6 "Code" means the Internal Revenue Code of 1986, as
amended from time to time. Reference to any section or
subsection of the Code includes reference to any comparable
or succeeding provisions of any legislation which amends,
supplements or replaces such section or subsection.
12.7 "Company" means EMC Corporation and any successor
to all or a major portion of its assets or business which
successor assumes the obligations of EMC Corporation.
12.8 "Compensation" for a Plan Year with respect to a
Participant means all taxable compensation paid to the
Participant during the Plan Year by a Participating Employer
for services rendered as an Eligible Employee plus any
amounts which would have been paid to the Participant but
for a salary reduction agreement in connection with
participation in a Code section 125 or 401(k) plan sponsored
by a Participating Employer, but excluding car allowances,
relocation assistance, reimbursements (such as travel
expenses, tuition assistance, adoption assistance and
similar reimbursements), and any income relating to stock
options. Compensation for any period shall in all cases be
limited to the applicable amount in effect for the period
under Code section 401(a)(17) ($160,000 in 1998).
12.9 "Computation Period" means an Eligibility Period
or a Plan Year, as the context requires.
12.10 "Effective Date" means January 1, 1998,
provided, however, that with respect to:
(a) Sections 6.5 (required minimum
distributions), 10.3 (401(k) testing), 10.4 (401(m)
testing) and 12.8 (no family aggregation of
Compensation), the Effective Date shall be January 1,
1997;
(b) Section 9.9 (veterans' rights), the Effective
Date shall be October 13, 1996; and
(c) Section 4.3 (Company Stock), the Effective
Date shall be July 1, 1998.
12.11 "Eligible Employee" means:
(a) any Employee (other than a temporary or
casual Employee) regularly scheduled to work at least
20 hours per week; or
(b) any Employee who is regularly scheduled to
work less than 20 hours per week or who is a casual or
temporary Employee, provided the Employee has completed
a Computation Period with 1,000 or more Hours of
Service.
Notwithstanding the foregoing, the term Eligible
Employee shall not include:
(u) any Employee who is regularly scheduled to
work less than 20 hours per week or who is a casual or
temporary Employee, if the Employee has not completed
an Eligibility Period with 1,000 or more Hours of
Service;
(v) any Employee whose employment is subject to
the terms of a collective bargaining agreement, unless
the agreement explicitly provides for inclusion;
(w) any Employee who is a nonresident alien who
receives no United States source income from a
Participating Employer;
(x) any individual classified by a Participating
Employer as an independent contractor (regardless of
any later reclassification, whether or not
retroactive);
(y) any Employee who is a student intern, co-
operative student, or similar student Employee; or
(z) any individual considered to be an Employee
solely by reason of the leased employee rules under
Code section 414(n), unless the Employer for which the
individual performs services is a Participating
Employer, such Participating Employer has elected in
writing to treat such individual as an Eligible
Employee, and the Company has consented to such
election.
12.12 "Eligibility Period" means, with respect to
an Employee, the period of 12 consecutive months beginning
with the Employee's first Hour of Service and each Plan Year
beginning after the Employee's first Hour of Service.
12.13 "EMC Stock Fund" means that portion of the
Trust Fund designed to invest primarily in Stock.
12.14 "Employee" means any individual employed by
an Affiliated Company, and any other individual to the
extent required to be considered an Employee of an
Affiliated Company by Code section 414(n).
12.15 "Entry Date" means the first day of each
calendar quarter (January 1, April 1, July 1, October 1),
and such other dates as the Company may designate.
12.16 "ERISA" means the Employee Retirement Income
Security Act of 1974, as from time to time amended, and any
successor statute or statutes of similar import.
12.17 "Hour of Service" means, with respect to any
Employee, each hour described in (a), (b), (c), and (d)
below:
(a) each hour for which the Employee is directly
or indirectly paid, or entitled to payment, for the
performance of duties for an Affiliated Company, each
such hour to be credited to the Employee for the
Computation Period in which the duties were performed;
(b) each hour for which the Employee is directly
or indirectly paid, or entitled to payment, by an
Affiliated Company (including payments made or due from
a trust fund or insurer to which an Affiliated Company
contributes or pays premiums) on account of a period of
time during which no duties are performed (irrespective
of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity,
disability, layoff, jury duty, military duty, or leave
of absence, each such hour to be credited to the
Employee for the Computation Period in which such
period of time occurs;
(c) each hour not credited under (a) or (b) above
for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by an
Affiliated Company for services as an Employee, each
such hour to be credited to the Employee for the
Computation Period to which the award or agreement
pertains; and
(d) to the extent required by law, each hour not
credited under paragraph (a), (b) or (c) above during a
period of absence (i) from an Affiliated Company due to
service in the armed forces of the United States if the
Employee returns to the active employ of an Affiliated
Company at a time when he or she has reemployment
rights under federal law but only to the extent
required by Section 9.9, or (ii) which, under the
Family Medical Leave Act of 1993, as may be amended, is
required to be credited for purposes of the Plan.
Hours of Service to be credited to an Employee under
(a), (b) or (c) above will be calculated and credited
pursuant to paragraphs (b) and (c) of Section 2530.200b-2 of
the Department of Labor Regulations which are incorporated
herein by reference. Hours of Service to be credited to an
individual under (d) above will be determined by the Company
with reference to the individual's most recent work schedule
(or at the rate of 8 hours per day in the event the Company
is unable to establish such schedule).
12.18 "Limitation Year" means the calendar year.
12.19 "Normal Retirement Age" means age 65.
12.20 "Participant" means any individual who
participates in the Plan in accordance with Article 2
hereof. Certain individuals who are no longer Eligible
Employees may continue to be characterized as Participants
for limited purposes under the Plan as described in Section
2.2.
12.21 "Participating Employer" means the Company
and any other Affiliated Company which has adopted the Plan
with the approval of the Company.
12.22 "Period of Service" means, with respect to
any Employee, the aggregate of all time periods commencing
with the Employee's first day of employment or reemployment
and ending on the date a break in service begins. The first
day of employment or reemployment is the first day the
Employee performs an hour of service, and an "hour of
service" for this purpose is an hour for which the Employee
is paid or entitled to payment for the performance of duties
for the Employer. An Employee will also receive credit for
any period of severance of less than 12 consecutive months.
Fractional periods of a year will be expressed in terms of
days. In the case of an individual who is absent from work
for maternity or paternity reasons, the 12-consecutive month
period beginning on the first anniversary of the first day
of such absence shall not constitute a break in service.
The period between the first and second anniversaries of the
first day of absence from work shall be neither a period of
service nor a period of severance, provided, however, than
an Employee who has not returned to employment with a
Participating Employer by the second anniversary of this
first day of absence from work shall incur a date of
severance as of such second anniversary date. For purposes
of this Section,
(a) an absence from work for maternity or
paternity reasons means an absence (1) by reason of the
pregnancy of the individual, (2) by reason of the birth
of a child of the individual, (3) by reason of the
placement of a child with the individual in connection
with the adoption of such child by such individual, or
(4) for purposes of caring for such child for a period
beginning immediately following such birth or
placement;
(b) a break in service is a period of severance
of at least 12 consecutive months;
(c) a period of severance is a continuous period
of time during which the Employee is not employed by an
Affiliated Company. Such period begins on the date the
Employee retires, quits, or is discharged, or if
earlier, the 12-month anniversary of the date on which
the Employee was otherwise first absent from service,
and ends on the date on which the Employee next
performs an hour of service; and
(d) any period of authorized leave of absence, or
a leave of absence under the Family and Medical Leave
Act of 1993 which is required to be credited for
purposes of the Plan, shall not be considered a break
in service.
(e) In the case of a leave of absence for service
in the armed forces of the United States pursuant to
Section 9.9, no period shall be excluded under this
paragraph during which the Employee has reemployment
rights with respect to an Affiliated Company under
federal law.
(f) An Employee will be deemed to have quit upon
failure to return to active employment with the
Employer upon the expiration of an authorized leave of
absence, an absence for service in the armed forces of
the United States, or a leave of absence under the
Family and Medical Leave Act of 1993.
(g) By vote of the Board of Directors,
Participants may be credited in a uniform and
nondiscriminatory manner with a Period of Service on
account of (a) service rendered to an entity prior to
such entity's merger with, consolidation into, or
acquisition of or by a Participating Employer; (b)
service rendered to a Participating Employer under an
arrangement whereby the Participating Employer
reimburses another company for such services; or (c)
service rendered to an Affiliated Company prior to its
becoming an Affiliated Company; but in each case only
to the extent that such service would not otherwise be
credited toward Periods of Service under other
provisions of the Plan.
12.23 "Plan" means the EMC Corporation 401(k)
Savings Plan as set forth herein, together with any and all
amendments and supplements hereto.
12.24 "Plan Year" means the calendar year.
12.25 "Qualified Domestic Relations Order" means
any judgment, decree or order (including approval of a
property settlement agreement) which is determined by the
Company to:
(a) relate to the provision of child support,
alimony payments, or marital property rights to a
spouse, former spouse, child or other dependent of a
Participant;
(b) be made pursuant to a State domestic
relations law (including a community property law);
(c) constitute a "qualified domestic relations
order" within the meaning of Code Section 414(p) and
ERISA Section 206(d)(3)(B), as added by the Retirement
Equity Act of 1984; and
(d) be entered on or after January 1, 1985.
In addition, any judgment, decree or order which is
determined to have satisfied the requirements of (a) and (b)
above, and which is entered prior to January 1, 1985 may be
treated as a Qualified Domestic Relations Order by the
Company. A judgment, decree or order which is determined to
have satisfied the requirements of (a) and (b) above shall
not be deemed to fail to satisfy (c) above merely because it
requires payment to an alternate payee prior to the
Participant's "earliest retirement age" (as that term is
defined in Section 414(p) of the Code and ERISA section
206(d)(3)).
12.26 "Stock" means the common stock of the
Company.
12.27 "Total and Permanent Disability" means a
mental or physical impairment that is likely to result in
death or to be of long-continued (no less than 12 months)
and indefinite duration, such that, on the basis of medical
evidence satisfactory to the Company, the Employee is
prevented from engaging in any substantial, gainful
activity.
12.28 "Trust" means a trust or trusts forming part
of the Plan and established under an agreement or agreements
between the Company and such person or persons, including a
bank, as shall be selected from time to time by the Board of
Directors.
12.29 "Trust Fund" means the property held in trust
by the Trustees at the time of reference.
12.30 "Trustee" means the person or persons named
as Trustee in the Trust, any successor trustee or trustees,
and any additional trustee or trustees.
12.31 "Valuation Date" means each day during which
trading occurs on the New York Stock Exchange, or such other
day as the Company may designate.
12.32 "Pre-Tax Employee Contributions" means a
Participant's elective contributions, if any, made pursuant
to Section 3.1.
IN WITNESS WHEREOF, EMC Corporation has caused this
instrument to be signed by its duly authorized officer this
1st day of January, 1998.
EMC CORPORATION
By:/s/ Paul T. Dacier
Name: Paul T. Dacier
Title: Vice President and General Counsel
June 19, 1998
EMC Corporation
35 Parkwood Drive
Hopinkton, Massachusetts 01748
Ladies and Gentlemen:
This opinion is furnished to you in connection with a
registration statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of
1933, as amended, for the registration of 1,000,000 shares
of Common Stock, $.01 par value per share (the "Shares"), of
EMC Corporation, a Massachusetts corporation (the
"Company"). The Shares are to be sold from time to time
pursuant to the Company's 401 (k) Savings Plan (the "Plan").
We are informed by the Company, and we have assumed for
the purposes of this opinion, that the Shares will be
outstanding shares of Common Stock of the Company purchased
by the Trustee of the Plan in the open market or in private
transactions.
We have examined and relied upon such documents,
records, certificates and other instruments as we have
deemed necessary for the purpose of this opinion.
The Company, as sponsor for the Plan, has informed us
that it intends to submit the Plan to the appropriate Key
District Director of the Internal Revenue Service and to
request from him or her a favorable determination letter as
to the Plan's qualified status under section 401 (a) of the
Code. The Company may be required to modify the Plan at the
request of the Internal Revenue Service in order to obtain
this favorable determination letter. The Company has
informed us that it will make all such necessary
modifications.
Based on the foregoing statements of the Company and
our review of the provisions of the Plan, in our opinion the
form of the Plan, as may be modified at the request of the
Internal Revenue Service, satisfies the requirements of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"). We express no opinion as to any matter other
than as expressly set forth herein, and no other opinion is
intended to be implied nor may be inferred here from. In
particular, but not in limitation of the foregoing, we
express no opinion as to whether the Plan operationally
satisfies the requirements of ERISA.
We hereby consent to the filing of this opinion as part
of the Registration Statement.
We understand that this opinion is to be used only in
connection with the offer and sale of the Shares while the
Registration Statement is in effect.
Very truly yours,
/s/Ropes & Gray
Ropes & Gray
We consent to the incorporation by reference in this
Registration Statement of EMC Corporation on Form S-8 of our
report dated January 21, 1998, on our audits of the
consolidated financial statements and financial statement
schedule of EMC Corporation as of December 31, 1997 and
December 31, 1996 and for the years ended December 31, 1997,
December 31,1996 and for the years ended December 31, 1997,
December 31,1996, and December 30,1995, which report is
included in the Company's Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 19,1998
