<PAGE>
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 1993 Stock Option Plan
Common Stock Option Program
___________________________
(Full Title of the Plans)
___________________________
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
<TABLE>
<CAPTION>
================================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered (1) Offering Price Per Aggregate Offering Registration
Share (2) Price (2) Fee (3)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1993 Stock Option Plan
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share 17,000,000 shares (4) $70.21875 1,193,718,750 331,855
=================================================================================================================================
Common Stock Option Program
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 20,000 shares (5) $70.21875 1,404,375 391
=================================================================================================================================
</TABLE>
<PAGE>
(1) This registration statement also relates to an aggregate of approximately
44,963,167 shares of common stock, par value $.01 per share, of EMC
Corporation ("Common Stock") previously registered and remaining unissued
under Registration Statements on Form S-8 (Registration Nos. 33-71598,
33-63665, 333-31471 and 333-55801), which are incorporated by reference
herein. Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy the
antidilution provisions of the EMC Corporation 1993 Stock Option Plan and
the Common Stock Option Program to which this Registration Statement
relates.
(2) 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 October 28,
1999.
(3) In accordance with Instruction E of Form S-8, the registration fee is being
paid with respect to newly registered securities only.
(4) Represents shares that may be issued upon exercise of options granted under
the EMC Corporation 1993 Stock Option Plan.
(5) Represents shares that may be issued to certain Company employees upon
exercise of options granted pursuant to non-qualified stock option
agreements in the form filed herewith.
2
<PAGE>
PART II
EMC Corporation (the "Registrant") hereby incorporates by reference the
contents of the Registrant's Registration Statements on Form S-8 (Registration
Nos. 33-71598, 33-63665, 333-31471 and 333-55801).
3
<PAGE>
Item 8. Exhibits.
Exhibit
Number Title of Exhibit
- ------ ----------------
4.1 EMC Corporation 1993 Stock Option Plan,
as amended to date.
4.2 Form of Non-Qualified Stock Option Agreement.
5.1 Opinion of Paul T. Dacier, Esq., Vice President and
General Counsel of EMC Corporation, as to the legality
of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Paul T. Dacier, Esq., Vice President and
General Counsel of EMC Corporation (contained
in the opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (included on the signature pages to this
Registration Statement).
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Hopkinton, Commonwealth of Massachusetts on the 29th
day of October, 1999.
EMC Corporation
By: /s/ Paul T. Dacier
--------------------------
PAUL T. DACIER
Vice President and General Counsel
Each person whose signature appears below constitutes and appoints Michael
C. Ruettgers, Colin G. Patteson and Paul T. Dacier, and each of them singly, his
or her true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 to be
filed by EMC Corporation, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- --------------------------------- --------------------- ----------------
<S> <C> <C>
/s/ Richard J. Egan Chairman of the Board October 29, 1999
- ---------------------------------
Richard J. Egan (Principal Executive
Officer) and Director
/s/ Michael C. Ruettgers President and Chief October 29, 1999
- ---------------------------------
Michael C. Ruettgers Executive Officer and
Director
</TABLE>
5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Colin G. Patteson Senior Vice President, Chief October 29, 1999
- ----------------------------------
Colin G. Patteson Administrative Officer and
Treasurer (Principal
Financial Officer)
/s/ William J. Teuber Vice President and Chief October 29, 1999
- ----------------------------------
William J. Teuber, Jr. Financial Officer
(Principal Accounting
Officer)
/s/ Michael J. Cronin Director October 29, 1999
- ----------------------------------
Michael J. Cronin
/s/ John R. Egan Director October 29, 1999
- ----------------------------------
John R. Egan
/s/ Maureen E. Egan Director October 29, 1999
- ----------------------------------
Maureen E. Egan
/s/ W. Paul Fitzgerald Director October 29, 1999
- ----------------------------------
W. Paul Fitzgerald
/s/ Joseph F. Oliveri Director October 29, 1999
- ----------------------------------
Joseph F. Oliveri
</TABLE>
6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Title of Exhibit
- ------ ----------------
4.1 EMC Corporation 1993 Stock Option Plan, as amended to date.
4.2 Form of Non-Qualified Stock Option Agreement.
5.1 Opinion of Paul T. Dacier, Esq., Vice President and
General Counsel of EMC Corporation, as to the legality
of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Paul T. Dacier, Esq., Vice President and
General Counsel of EMC Corporation (contained
in the opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (included on the signature pages to this
Registration Statement).
<PAGE>
Exhibit 4.1
EMC CORPORATION
1993 STOCK OPTION PLAN, as amended May 5, 1999
1. PURPOSE.
-------
The purpose of the EMC Corporation 1993 Stock Option Plan is to enable EMC
Corporation to provide a special incentive to a limited number of key employees
of the Company and its Subsidiaries, if any, who are in a position to have a
significant effect upon the Company's business and earnings. In order to
accomplish this purpose, the Plan authorizes the grant to such key employees of
options to purchase Common Stock of the Company. Increased ownership of Common
Stock will provide such key employees with an additional incentive to take into
account the long-term interests of the Company.
2. DEFINITIONS.
-----------
As used herein, the following words or terms have the meanings set forth
below. The masculine gender is used throughout the Plan but is intended to
apply to members of both sexes.
2.1 "Board of Directors" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute.
2.3 "Committee" means the Committee appointed by the Board of Directors to
administer the Plan or the Board of Directors as a whole if no appointment is
made.
2.4 "Common Stock" means the Common Stock of the Company.
2.5 "Company" means EMC Corporation, a corporation established under the
laws of The Commonwealth of Massachusetts.
2.6 "Fair Market Value" in the case of a share of Common Stock on a
particular day, means the fair market value as determined from time to time by
the Board of Directors or, where appropriate, by the Committee, taking into
account all information which the Board of Directors, or the Committee,
considers relevant.
2.7 "Incentive Stock Option" means a stock option that satisfies the
requirements of Section 422 of the Code.
2.8 "Participant" means an individual holding a stock option or stock
options granted to him under the Plan.
2.9 "Plan" means the EMC Corporation 1993 Stock Option Plan set forth
herein.
2.10 "Subsidiary" or "Subsidiaries" means a corporation or corporations in
which the Company owns, directly or indirectly, stock possessing 50 percent or
more of the total combined voting power of all classes of stock.
2.11 "Ten Percent Stockholder" means any person who, at the time an option
is granted, owns or is deemed to own stock (as determined in accordance with
Sections 422 and 424 of the Code) possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or its parent
or a subsidiary.
<PAGE>
3. ADMINISTRATION.
--------------
3.1 The Plan shall be administered by the Committee and, to the extent
provided herein, the Board of Directors. A majority of the members of the
Committee shall constitute a quorum, and all determinations of the Committee
shall be made by a majority of its members. Any determination of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by a majority of the Committee members.
3.2 Subject to the provisions set forth herein, each of the Committee and
the Board of Directors shall have full authority to determine the provisions of
options to be granted under the Plan. Subject to the provisions set forth
herein, the Committee shall have full authority to interpret the terms of the
Plan and of options granted under the Plan, to adopt, amend and rescind rules
and guidelines for the administration of the Plan and for its own acts and
proceedings and to decide all questions and settle all controversies and
disputes which may arise in connection with the Plan; provided, however, that
-------- -------
any change to the terms of an option granted hereunder shall be approved by the
Board of Directors to the extent such change would be deemed to be a new option
grant or such terms relate to a subsequent transaction that would not be exempt
from Section 16(b) of the Securities Exchange Act of 1934 in the absence of such
approval.
3.3 The decision of the Committee or the Board of Directors, as
applicable, on any matter as to which the Committee or the Board of Directors,
as applicable, is given authority under subsection 3.2 shall be final and
binding on all persons concerned.
3.4 Nothing in the Plan shall be deemed to give any officer or employee,
or his legal representatives or assigns, any right to participate in the Plan,
except to such extent, if any, as the Committee or the Board, as applicable, may
have determined or approved pursuant to the provisions of the Plan.
4. SHARES SUBJECT TO THE PLAN.
--------------------------
4.1 The maximum number of shares of Common Stock that may be delivered
upon the exercise of options granted under the Plan shall be 80,000,000, subject
to adjustment in accordance with the provisions of Section 8.
4.2 If any option granted under the Plan terminates without having been
exercised in full (including an option which terminates by agreement between the
Company and the Participant), or if shares of Common Stock are reacquired by the
Company upon the rescission of an exercise of an option, the number of shares of
Common Stock as to which an option has not been exercised prior to termination,
or have been reacquired upon the rescission of an option, shall be available for
future grants within the limits set forth in subsection 4.1.
4.3 Shares of Common Stock delivered upon the exercise of options shall
consist of shares of authorized and unissued Common Stock, except that the Board
of Directors may from time to time in its discretion determine in any case the
shares to be so delivered shall consist of shares of authorized and issued
Common Stock reacquired by the Company and held in its Treasury. No fractional
shares of Common Stock shall be delivered upon the exercise of an option.
5. ELIGIBILITY FOR OPTIONS.
-----------------------
Employees eligible to receive options under the Plan shall be those key
employees of the Company and its Subsidiaries, if any, who, in the opinion of
the Committee, are in a position to have a significant effect upon the Company's
business and earnings. Members of the Board of Directors of the Company or a
Subsidiary who are not employed as regular salaried officers or employees of the
Company or a Subsidiary may not participate in the Plan.
2
<PAGE>
6. GRANT OF OPTIONS.
----------------
6.1 From time to time while the Plan is in effect, each of the Committee
and the Board of Directors may, in its absolute discretion, select from among
the persons eligible to receive options (including persons to whom options were
previously granted) those persons to whom options are to be granted.
6.2 Each of the Committee and the Board of Directors shall, in its
absolute discretion, determine the number of shares of Common Stock to be
subject to each option granted by it under the Plan.
6.3 No Incentive Stock Option may be granted under the Plan after May 12,
2003, but options theretofore granted may extend beyond that date.
7. PROVISIONS OF OPTIONS.
---------------------
7.1 Incentive Stock Options or Other Options. Options granted under the
----------------------------------------
Plan may be either Incentive Stock Options or options which do not qualify as
Incentive Stock Options, as the Committee or the Board of Directors shall
determine at the time of each grant of options hereunder.
7.2 Stock Option Certificates or Agreements. Options granted under the
---------------------------------------
Plan shall be evidenced by certificates or agreements in such form as the
Committee shall from time to time approve. Such certificates or agreements
shall comply with the terms and conditions of the Plan and may contain such
other provisions not inconsistent with the terms and conditions of the Plan as
the Committee shall deem advisable. In the case of options intended to qualify
as Incentive Stock Options, the certificates or agreements shall contain such
provisions relating to exercise and other matters as are required of incentive
stock options under the Code.
7.3 Terms and Conditions. All options granted under the Plan shall be
--------------------
subject to the following terms and conditions to the extent applicable and to
such other terms and conditions not inconsistent therewith as the Committee or
the Board of Directors shall determine:
7.3.1 Exercise Price. The exercise price per share of Common Stock
--------------
with respect to each option shall be as determined by the Committee but in
the case of an Incentive Stock Option not less than 100% (110% in the case
of an Incentive Stock Option granted to a Ten Percent Stockholder) of the
Fair Market Value per share at the time the option is granted. In the case
of an option which does not qualify as an Incentive Stock Option, the
exercise price per share of Common Stock shall be not less than par value.
7.3.2 Value of Shares of Common Stock Subject to Incentive Stock
----------------------------------------------------------
Options. Each eligible employee may be granted Incentive Stock Options
-------
only to the extent that, in the aggregate under this Plan and all incentive
stock option plans of the Company and any related corporation, such
Incentive Stock Options do not become exercisable for the first time by
such employee during any calendar year in a manner which would entitle the
employee to purchase more than $100,000 in fair market value (determined at
the time the Incentive Stock Options were granted) of Common Stock in that
year. Any options granted to an employee in excess of such amount will be
granted as Non-Qualified Options.
7.3.3 Period of Options. An option shall be exercisable during such
-----------------
period of time as the Committee or Board of Directors may specify (subject
to subsection 7.4 below), but in the case of an Incentive Stock Option not
after the expiration of ten years (five years in the case of an Incentive
Stock Option granted to a Ten Percent Stockholder) from the date the option
is granted.
3
<PAGE>
7.3.4 Exercise of Options.
-------------------
7.3.4.1 Each option shall be made exercisable at such time or
times as the Committee or the Board of Directors shall determine. In
the case of an option made exercisable in installments, the Committee
or the Board of Directors may later determine to accelerate the time
at which one or more of such installments may be exercised.
7.3.4.2 Any exercise of an option shall be in writing signed
by the proper person and delivered or mailed to the General Counsel of
the Company, accompanied by an option exercise notice and payment in
full for the number of shares in respect to which the option is
exercised.
7.3.4.3 In the event an option is exercised by the executor
or administrator of a deceased Participant, or by the person or
persons to whom the option has been transferred by the Participant's
will or the applicable laws of descent and distribution, the Company
shall be under no obligation to deliver stock thereunder until the
Company is satisfied that the person or persons exercising the option
is or are the duly appointed executor or administrator of the deceased
Participant or the person or persons to whom the option has been
transferred by the Participant's will or by the applicable laws of
descent and distribution.
7.3.4.4 The Committee or the Board of Directors may at the
time of grant condition the exercise of an option upon agreement by
the Participant to subject the Common Stock to any restrictions on
transfer or repurchase rights in effect on the date of exercise, upon
representations of continued employment and upon other terms not
inconsistent with this Plan. Any such conditions shall be set forth in
the option certificate or other document evidencing the option.
7.3.4.5 In the case of an option that is not an Incentive
Stock Option, the Committee shall have the right to require that the
individual exercising the option to remit to the Company an amount
sufficient to satisfy any federal, state, or local withholding tax
requirements (or makes other arrangements satisfactory to the Company
with regard to such taxes) prior to the delivery of any Common Stock
pursuant to the exercise of the option. In the case of an Incentive
Stock Option, if at the time the Incentive Stock Option is exercised
the Committee determines that under applicable law and regulations the
Company could be liable for the withholding of any federal or state
tax with respect to a disposition of the Common Stock received upon
exercise, the Committee may require as a condition of exercise that
the individual exercising the Incentive Stock Option agree (i) to
inform the Company promptly of any disposition (within the meaning of
Section 422 (a) (1) of the Code and the regulations thereunder) of
Common Stock received upon exercise, and (ii) to give such security as
the Committee deems adequate to meet the potential liability of the
Company for the withholding of tax, and to augment such security from
time to time in any amount reasonably deemed necessary by the
Committee to preserve the adequacy of such security.
7.3.4.6 In the case of an option that is exercised by an
individual that is subject to taxation in a foreign jurisdiction, the
Committee shall have the right to require the individual exercising
the option to remit to the Company an amount sufficient to satisfy any
federal or withholding requirement of that foreign jurisdiction (or
make other arrangements satisfactory to the Company with regard to
such taxes prior to the delivery of any Common Stock pursuant to the
exercise of the option).
7.3.5 Payment for and Delivery of Stock. The shares of stock
---------------------------------
purchased on any exercise of an option granted hereunder shall be paid for
in full in cash or, if permitted by the terms of the option, in shares of
unrestricted Common Stock at the time of such exercise or, if so
4
<PAGE>
permitted, a combination of such cash and Common Stock. A Participant shall
not have the rights of a stockholder with respect to awards under the Plan
except as to stock actually issued to him.
7.3.6 Listing of Stock, Withholding and Other Legal Requirements.
----------------------------------------------------------
The Company shall not be obligated to deliver any stock until all
federal and state laws and regulations which the Company may deem
applicable have been complied with, nor, in the event the outstanding
Common Stock is at the time listed upon any stock exchange, until the stock
to be delivered has been listed or authorized to be added to the list upon
official notice of issuance to such exchange. In addition, if the shares of
stock subject to any option have not been registered in accordance with the
Securities Act of 1933, as amended, the Company may require the person or
persons who wishes or wish to exercise such option to make such
representation or agreement with respect to the sale of stock acquired on
exercise of the option as will be sufficient, in the opinion of the
Company's counsel, to avoid violation of said Act, and may also require
that the certificates evidencing said stock bear an appropriate restrictive
legend.
7.3.7 Non-transferability of Options. No option may be
------------------------------
transferred by the Participant otherwise than by will, by the laws of
descent and distribution or pursuant to a qualified domestic relations
order, and during the Participant's lifetime the option may be exercised
only by him or her; provided, however, that the Board of Directors or the
-------- -------
Committee, as applicable, in its discretion, may allow for transferability
of non-qualified stock options by the Participant to "Immediate Family
Members." Immediate Family Members means children, grandchildren, spouse or
common law spouse, siblings or parents of the Participant or to bona fide
trusts, partnerships or other entities controlled by and of which the
beneficiaries are Immediate Family Members of the Participant. Any option
grants that are transferable are further conditioned on the Participant and
Immediate Family Members agreeing to abide by the Company's then current
stock option transfer guidelines.
7.3.8 Death. If a Participant dies at a time when he is entitled to
-----
exercise an Incentive Stock Option, then at any time or times within three
years after his death such Incentive Stock Option may be exercised, as to
all or any of the shares which the Participant was entitled to purchase
thereunder immediately prior to his death, by his executor or administrator
or the person or persons to whom the Incentive Stock Option is transferred
by will or the applicable laws of descent and distribution, and except as
so exercised such Incentive Stock Option shall expire at the end of such
three-year period. In no event, however, may any Incentive Stock Option
granted under the Plan be exercised after the expiration of ten years (five
years in the case of an Incentive Stock Option granted to a Ten Percent
Stockholder) from the date the Incentive Stock Option was granted.
7.3.9 Termination of Employment. If the employment of a
-------------------------
Participant terminates for any reason other than his death, all options
held by the Participant shall thereupon expire on the date of termination
unless the option by its terms, or the Committee or the Board of Directors
by resolution, shall allow the Participant to exercise any or all of the
options held by him after termination. In the case of an Incentive Stock
Option, the Incentive Stock Option shall in any event expire at the end of
three months after such termination of employment, or after the expiration
of ten years (five years in the case of an Incentive Stock Option granted
to a Ten Percent Stockholder) from the date the Incentive Stock Option was
granted, whichever occurs first. If the Committee or the Board of
Directors so decides, an option may provide that a leave of absence
granted by the Company or Subsidiary is not a termination of employment for
the purpose of this subsection 7.3.9, and in the absence of such a
provision the Committee may in any particular case determine that such a
leave of absence is not a termination of employment for such purpose. The
Committee shall also determine all other matters relating to continuous
employment.
7.3.10 Claw-back for Detrimental Activity. The following provisions
----------------------------------
of this Section 7.3.10 shall apply to options granted on or after July 1,
1998 to (i) Participants who are classified by the Company or a Subsidiary
as an executive officer, senior officer, or officer (collectively, an
5
<PAGE>
"Officer") of the Company or a Subsidiary; and (ii) certain other
Participants designated by the Committee or the Board of Directors to be
subject to the terms of this Section 7.3.10 (such designated Participants
together with Officers referred to collectively as "Senior Participants").
The Committee or the Board of Directors may cancel, rescind, suspend or
otherwise limit or restrict any unexpired option at any time if the Senior
Participant engages in "Detrimental Activity" (as defined below).
Furthermore, in the event a Senior Participant engages in Detrimental
Activity at any time prior to or during the six months after any exercise
of an option, such exercise may be rescinded until the later of (i) two
years after such exercise or (ii) two years after such Detrimental
Activity. Upon such rescission, the Company at its sole option may require
the Senior Participant to (i) deliver and transfer to the Company the
shares of Common Stock received by the Senior Participant upon such
exercise, (ii) pay to the Company an amount equal to any realized gain
received by the Senior Participant from such exercise, or (iii) pay to the
Company an amount equal to the market price (as of the exercise date) of
the Common Stock acquired upon such exercise minus the respective exercise
price. The Company shall be entitled to set-off any such amount owed to
the Company against any amount owed to the Senior Participant by the
Company. As used in this subsection 7.3.10, "Detrimental Activity" shall
include: (i) the failure to comply with the terms of the Plan or
certificate or agreement evidencing the option, (ii) the failure to comply
with any term set forth in the Company's Key Employee Agreement
(irrespective of whether the Senior Participant is a party to the Key
Employee Agreement), (iii) any activity that results in termination of the
Senior Participant's employment for cause; (iv) a violation of any rule,
policy, procedure or guideline of the Company; (v) the Senior Participant
being convicted of, or entering a guilty plea with respect to a crime
whether or not connected with the Company; or (vi) any other conduct or act
determined to be injurious, detrimental or prejudicial to any interest of
the Company.
7.4 Authority of the Committee. The Committee shall have the authority,
--------------------------
either generally or in particular instances, to waive compliance by a
Participant with any obligation to be performed by him under an option and to
waive any condition or provision of an option, except that the Committee may not
(i) increase the total number of shares covered by any Incentive Stock Option
(except in accordance with Section 8), (ii) reduce the option price per share of
any Incentive Stock Option (except in accordance with Section 8) or (iii) extend
the term of any Incentive Stock Option to more than ten years, subject, however,
to the provisions of Section 10.
8. CHANGES IN STOCK.
----------------
In the event of a stock dividend, stock split or other change in
corporate structure or capitalization affecting the Common Stock that becomes
effective after the adoption of the Plan by the Board of Directors, the
Committee shall make appropriate adjustments in (i) the number and kind of
shares of stock on which options may thereafter be granted hereunder, (ii) the
number and kind of shares of stock remaining subject to each option outstanding
at the time of such change and (iii) the option price. The Committee's
determination shall be binding on all persons concerned. Subject to any
required action by the stockholders, if the Company shall be the surviving
corporation in any merger or consolidation (other than a merger or consolidation
in which the Company survives but in which a majority of its outstanding shares
are converted into securities of another corporation or are exchanged for other
consideration), any option granted hereunder shall pertain and apply to the
securities which a holder of the number of shares of stock of the Company then
subject to the option would have been entitled to receive, but a dissolution or
liquidation of the Company or a merger or consolidation in which the Company is
not the surviving corporation or in which a majority of its outstanding shares
are so converted or exchanged shall cause every option hereunder to terminate;
provided that if any such dissolution, liquidation, merger or consolidation is
contemplated, the Company shall either arrange for any corporation succeeding to
the business and assets of the Company to issue to the Participants replacement
options (which, in the case of Incentive Stock Options, satisfy, in the
determination of the Committee, the requirements of Section 424 of the Code) on
such corporation's stock which will to the extent possible preserve the value of
the outstanding options or shall make the outstanding options fully exercisable
at least 20 days before the effective date of any such dissolution, liquidation,
merger or consolidation. The existence of the Plan shall not prevent any such
6
<PAGE>
change or other transaction and no Participant thereunder shall have any right
except as herein expressly set forth.
9. EMPLOYMENT RIGHTS.
-----------------
Neither the adoption of the Plan nor any grant of options confers upon any
employee of the Company or a Subsidiary any right to continued employment with
the Company or a Subsidiary, as the case may be, nor does it interfere in any
way with the right of the Company or a Subsidiary to terminate the employment of
any of its employees at any time.
10. DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION.
-------------------------------------------------------
The Committee or the Board of Directors may at any time discontinue granting
options under the Plan and, with the consent of the Participant, may at any time
cancel an existing option in whole or in part and grant another option to the
Participant for such number of shares as the Committee or the Board of Directors
specifies. The Board of Directors may at any time or times amend the Plan for
the purpose of satisfying the requirements of any changes in applicable laws or
regulations or for any other purpose which may at the time be permitted by law
or may at any time terminate the Plan as to any further grants of options,
provided that no such amendment shall without the approval of the stockholders
of the Company (a) increase the maximum number of shares available under the
Plan, (b) change the group of employees eligible to receive options under the
Plan, (c) reduce the exercise price of outstanding incentive options or reduce
the price at which incentive options may be granted, (d) extend the time within
which options may be granted, (e) alter the Plan in such a way that incentive
options granted or to be granted hereunder would not be considered incentive
stock options under Section 422 of the Code, or (f) amend the provisions of this
Section 10, and no such amendment shall adversely affect the rights of any
employee (without his consent) under any option previously granted.
11. EFFECTIVE DATE.
--------------
The Plan became effective immediately upon its approval by the stockholders
of the Company at the Annual Meeting on May 12, 1993.
<PAGE>
Exhibit 4.2
EMC CORPORATION
STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION
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AGREEMENT entered into as of the ______ day of _________, 1999 by and
between EMC Corporation, a Massachusetts corporation (the "Company"), and the
undersigned individual (the "Optionee").
WHEREAS, the Company desires to grant the Optionee a non-qualified stock
option to acquire shares of the Company's common stock, $.01 par value per share
(the "Common Stock"); and
WHEREAS, the Optionee desires to accept such option subject to the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained herein, the Company and the Optionee, intending to be
legally bound, hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee a non-
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qualified stock option (the "Option") to purchase all (or any part) of _________
shares of Common Stock (the "Shares") on the terms and conditions hereinafter
set forth. This option shall not be treated as an incentive stock option under
Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
2. Purchase Price. The purchase price ("Purchase Price") for the Shares
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covered by the Option shall be the closing price of a share of Common Stock on
______________, or $________ per share.
3. Vesting and Exercisability. On or after the first anniversary of the
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date hereof, twenty percent (20%) of the Shares subject to the Option shall vest
and be exercisable, and on or after each of the next four successive
anniversaries of the date hereof, an additional twenty percent (20%) of the
Shares shall vest and be exercisable.
4. Term of Option.
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(a) This Option shall expire not later than ten (10) years from the
date hereof; provided, however, that if the Optionee ceases to serve as _______
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of the Company for any reason, whether voluntary or involuntary (including
death), this Option shall terminate on the date such service terminates with
respect to any Shares subject to options which are vested or unvested on such
date.
5. Manner of Exercise of Option.
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(a) To the extent that the right to purchase shares under the Option
has vested and is in effect in accordance with the terms hereof, the number of
available Shares may be purchased in full (or in part) by giving written notice
to the Company stating the number of Shares purchased and accompanied by payment
in full for such Shares. Payment shall be either in cash or by a certified or
cashier's check or money order payable to the Company.
(b) The Company shall at all times during the term of the Option
reserve and keep available such number of shares of its Common Stock as will be
sufficient to satisfy the requirements of the Option.
(c) Notwithstanding the provision of Section 5(a) of this Agreement,
the Company may delay the issuance of Shares covered by the vesting of this
Option and the delivery of a certificate for such Shares until one of the
following conditions shall be satisfied:
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(i) The Shares purchased pursuant to a vested Option are at
the time of the issuance of such Shares effectively registered or qualified
under applicable federal and state securities laws now in effect or as hereafter
amended; or
(ii) Counsel for the Company shall have given an opinion that
such Shares are exempt from registration and qualification under applicable
federal and state securities laws now in effect or as hereafter amended.
(iii) The Company shall use its best efforts to promptly meet
the conditions under items (i) and (ii) above.
6. Changes in Stock.
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In the event of a stock dividend, stock split or other change in corporate
structure or capitalization affecting the Common Stock, the Board of Directors
or the Compensation Committee (the "Committee") shall make appropriate
adjustments in the number and kind of shares of stock remaining subject to this
Option outstanding at the time of such change and the Purchase Price. Subject
to any required action by the stockholders, if the Company shall be the
surviving corporation in any merger or consolidation (other than a merger or
consolidation in which the Company survives but in which a majority of its
outstanding shares are converted into securities of another corporation or are
exchanged for other consideration), this Option shall pertain and apply to the
securities which a holder of the number of shares of stock of the Company then
subject to this Option would have been entitled to receive, but a dissolution or
liquidation of the Company or a merger or consolidation in which the Company is
not the surviving corporation or in which a majority of its outstanding shares
are so converted or exchanged shall cause this Option to terminate; provided
that if any such dissolution, liquidation, merger or consolidation is
contemplated, the Company shall either arrange for any corporation succeeding to
the business and assets of the Company to issue to the Optionee replacement
options on such corporation's stock which will to the extent possible preserve
the value of the outstanding Option or shall make the outstanding Option fully
exercisable at least 20 days before the effective date of any such dissolution,
liquidation, merger or consolidation. The existence of this Agreement shall not
prevent any such change or other transaction and the Optionee shall not have any
right except as herein expressly set forth.
7. No Special Rights. Nothing contained in this Agreement shall be
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construed or deemed by any person under any circumstances to bind the Company or
any of its subsidiaries to continue the service of the Optionee as ________ of
the Company for the period during which this Option may vest.
8. Rights as a Shareholder. The Optionee shall not have any of the
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rights of a shareholder of the Company in respect of the Shares until one or
more certificates for such Shares shall be delivered to the Optionee upon the
purchase of Shares pursuant to a vested Option in accordance with this
Agreement. Except as otherwise expressly provided herein, no adjustment shall
be made for dividends or other rights for which the record date is prior to the
date such stock certificate is issued.
9. Notice of Disposition. Participant shall notify the Company when he
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makes any disposition of the Shares acquired upon exercise of this Option,
whether by sale, gift or otherwise.
10. Application of Stock Transfer Agreement. If at the time when this
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Option is exercised, the Company is a party to any agreement restricting the
transfer of any outstanding shares of its Common Stock, this Option may be
exercised only if the Shares so acquired are made subject to the transfer
restrictions set forth in that agreement (or if more than one such agreement is
then in effect), the agreement specified by the Board of Directors or the
Committee.
11. Tax Effects of Exercise of Option. At the time of exercise of any
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part of this Option, Optionee or his legal representative will be liable for
federal and state taxes for the gain between the exercise price of the Shares
and the then current fair market value of such shares. The Company has no
liability or responsibility to withhold any amounts to cover this federal or
state tax liability.
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<PAGE>
12. Non-transferability of Option. This Option is not transferable by the
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Optionee otherwise than by will or the laws of descent and distribution, and is
exercisable during the Participant's lifetime only by the Participant.
13. Cancellation and Rescission of Option. The Committee or the Board of
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Directors may cancel, rescind, suspend or otherwise limit or restrict this
Option at any time if the Optionee engages in "Detrimental Activity" (as defined
below). Furthermore, in the event Optionee engages in Detrimental Activity at
any time prior to or during the six months after any exercise of this Option (or
portion hereof), such exercise may be rescinded until the later of (i) two years
after such exercise or (ii) two years after such Detrimental Activity. Upon
such rescission, the Company at its sole option may require the Optionee to (i)
deliver and transfer to the Company the shares of Common Stock received by the
Optionee upon such exercise, (ii) pay to the Company an amount equal to any
realized gain received by the Optionee from such exercise, or (iii) pay to the
Company an amount equal to the market price (as of the exercise date) of the
Common Stock acquired upon such exercise minus the respective exercise price.
The Company shall be entitled to set-off any such amount owed to the Company
against any amount owed to the Optionee by the Company. As used in this
Section 13, "Detrimental Activity" shall include: (i) the failure to comply with
the terms of this Agreement; (ii) the failure to comply with any term set forth
in the Key Employee Agreement (irrespective of whether the Optionee is a party
to the Key Employee Agreement); (iii) any activity that results in removal of
the Optionee for cause; (iv) a violation of any rule, policy, procedure or
guideline of the Company; (v) the Optionee being convicted of, or entering a
guilty plea with respect to a crime whether or not connected with the Company;
or (vi) any other conduct or act determined to be injurious, detrimental or
prejudicial to any interest of the Company.
[Remainder of Page Intentionally Left Blank]
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<PAGE>
EMC CORPORATION
STOCK OPTION AGREEMENT
Counterpart Signature Page
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its corporate seal to be hereto affixed by its officer thereunto duly
authorized, and the Optionee has hereunto set his hand and seal, all as of the
day and year first above written.
EMC CORPORATION OPTIONEE
By:_________________ ___________________________
(signature)
___________________________
(print name)
___________________________
(print address)
___________________________
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<PAGE>
Exhibit 5.1
[EMC Corporation Letterhead]
35 Parkwood Drive
Hopkinton, MA 01748
October 29, 1999
EMC Corporation
35 Parkwood Drive
Hopkinton, Massachusetts 01748
Ladies and Gentlemen:
I am Vice President and General Counsel of EMC Corporation, a
Massachusetts corporation (the "Company"), and am issuing this opinion in
connection with the registration statement on Form S-8 (the "Registration
Statement") being filed by the Company with the Securities and Exchange
Commission (the "Commission") on the date hereof for the purpose of registering
under the Securities Act of 1933, as amended, 17,020,000 shares (the "Shares")
of common stock, par value $.01 per share, of the Company ("Common Stock") which
may be issued pursuant to the Company's 1993 Stock Option Plan, as amended (the
"Plan"), and pursuant to Non-Qualified Stock Option Agreements.
In this connection, I have examined and am familiar with originals or
copies, certified or otherwise identified to my satisfaction, of (i) the
Registration Statement; (ii) the Articles of Amendment to EMC Corporation's
Restated Articles of Organization, as amended to date, and (iii) such records of
the corporate proceedings of the Company as I have deemed necessary or
appropriate as a basis for the opinions set forth herein; and such certificates
of officers of the Company and others and such other records and documents as I
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such copies. As to any facts material to the
opinion expressed herein which I have not independently established or verified,
I have relied upon statements and representations of other officers and
representatives of the Company and others.
I am admitted to the Bar of the State of Wisconsin and the
Commonwealth of Massachusetts and do not purport to be an expert on, or express
any opinion concerning, any law other than the substantive law of the
Commonwealth of Massachusetts.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized for issuance and, when issued and sold by the
Company pursuant to and in accordance with the Plan, will be validly issued,
fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. In giving this consent, I do not
thereby admit that I am in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the SEC
promulgated thereunder.
This opinion is furnished by me, as Vice President and General Counsel
to the Company, in connection with the filing of the Registration Statement and
is not to be used, circulated or quoted for any other purpose or otherwise
referred to or relied upon by any other person without the prior express written
permission of the Company other than in connection with the offer and sale of
Shares while the Registration Statement is in effect.
Very truly yours,
/s/ Paul T. Dacier
Paul T. Dacier
Vice President and General Counsel
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of EMC Corporation of our report dated January 22, 1999
relating to the consolidated financial statements and financial statement
schedule, which appears in EMC Corporation's Annual Report on Form 10-K for the
year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
November 4, 1999
