SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMC CORPORATION
(Exact name of issuer as specified in its charter)
MASSACHUSETTS
(State or other jurisdiction of Incorporation or Organization)
04-2680009
(I.R.S. Employer Identification Number)
35 Parkwood Drive, Hopkinton,
Massachusetts 01748
(Address of Principal Executive Offices)
EMC Corporation Executive Deferred Compensation Retirement Plan
(Full Title of the Plan)
Paul T. Dacier, Esq.
Senior Vice President and General Counsel
EMC Corporation
171 South Street
Hopkinton, Massachusetts 01748
(Name and Address of Agent for Service)
(508) 435-1000
(Telephone Number, Including Area Code for Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Amount of
Securities to be Maximum Registration
be Registered Registered (1) Aggregate Fee (2)
Offering
Price (2)
Deferred $20,000,000.00 $20,000,000.00 $6,000.00
Compensation
Obligations
________________
(1)The Deferred Compensation Obligations are unsecured
obligations of EMC Corporation to pay deferred compensation in
the future in accordance with the terms of the EMC Corporation
Executive Deferred Compensation Retirement Plan.
(2)Estimated in accordance with Rule 457(h) under the
Securities Act of 1933, as amended, solely for the purpose of
determining the registration fee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
EMC Corporation (the "Registrant") hereby incorporates by
reference the following documents filed with the Securities and
Exchange Commission (the "SEC"):
(a) the Registrant's Current Reports on Form 8-K filed with the
SEC on February 22, 2000, April 18, 2000, May 9, 2000, and
November 8, 2000;
(b) the Registrant's Annual Report on Form 10-K for the fiscal
year ending December 31, 1999; and
(c) the Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2000, June 30, 2000, and September 30,
2000.
In addition, all documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters
all securities then remaining unsold under this Registration
Statement, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained herein or
in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superceded for
purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed
document which also is contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supercedes such
earlier statement. Any statement so modified or superceded shall
not be deemed, except as so modified or superceded, to constitute
part of this Registration Statement.
Item 4. Description of Securities.
The securities being registered under this Registration
Statement are obligations (the "Obligations") of the Registrant
to pay deferred compensation in the future in accordance with the
terms of the EMC Corporation Executive Deferred Compensation
Retirement Plan (the "Plan"). The Obligations may be offered to
certain eligible employees of the Registrant and its subsidiaries
pursuant to the Plan.
The Obligations are unsecured general obligations of the
Registrant and rank pari passu with the Registrant's other
unsecured and unsubordinated indebtedness. The Obligations are
not convertible into any other security of the Registrant.
The amount of compensation to be deferred by each
participant is determined in accordance with the Plan based on
elections by the participant. Each eligible employee may elect
to defer a specified portion of his or her eligible compensation
by completing a deferral election form in a form that the
administrator of the Plan (the "Administrator") will prescribe.
Amounts will be deferred in such intervals as the Administrator
may prescribe. A deferral election generally must be made with
respect to compensation earned in any calendar year only if
delivered to the Administrator prior to the end of the previous
calendar year. Elections to defer compensation are irrevocable
and, accordingly, except in limited circumstances, a participant
will not have the right to make withdrawals of amounts deferred
prior to the time fixed for distribution of these amounts.
During the year in which an election is effective, the
Administrator will cause the participant's compensation to be
reduced by the amount specified to be deferred and these amounts
will be credited to the participant's account under the Plan at
the time the compensation would otherwise have been paid.
The Obligations for a participant will equal the balance of
the participant's account under the Plan. A participant may
select various measuring investments which are used for purposes
of the Plan to measure fluctuations in the balance of that
portion of an account which is deemed notionally invested in such
investments. The Administrator shall determine the measuring
investments that are to be made available under the Plan and may
at any time reduce or increase the number of, or otherwise change
the list of, such measuring investments, including with respect
to amounts already deferred under the Plan.
The Administrator initially will be the Executive
Compensation and Stock Option Committee of the Registrant's Board
of Directors. The Administrator has complete authority to
construe the terms of the Plan, determine the eligibility of
participants in the Plan and make all other determinations and
take all other actions assigned to the Administrator under the
Plan. The Administrator has the authority to interpret the Plan
and decide any questions and settle all controversies and
disputes that may arise in connection with the Plan.
Determinations of the Administrator are conclusive and binding on
all parties.
Generally, amounts in a participant's account will be
distributed in accordance with the participant's election either
in a single lump sum payment payable upon, or in annual
installments commencing upon, termination of employment by reason
of retirement (as specifically defined in the Plan), death or
disability. Generally, a participant will receive a single lump
sum payment upon termination of employment for any other reason.
In addition, a participant may elect to receive a distribution
from his or her account on a specified date either in a single
lump sum payment or in annual installments. A participant may
also elect to receive a single lump sum payment upon a Change of
Control (as defined in the Plan). In certain instances, a
participant may be allowed to receive a distribution from his or
her account in a lump sum payment due to financial hardship or
other reasons.
The rights of participants and their beneficiaries under the
Plan are not subject in any manner to alienation, sale, transfer,
assignment, pledge, hypothecation, encumbrance, attachment or
garnishment. Any attempt by any person to transfer or assign
benefits under the Plan, other than a claim for benefits by a
participant or his or her beneficiary(ies), shall be null and
void.
The Registrant may, but shall not be obligated to, set aside
amounts or establish any trust or fund to assist in the payment
of distributions from the participants' accounts under the Plan.
Whether or not such a trust is established, participants and
their beneficiaries under the Plan shall have rights no greater
than those of unsecured general creditors of the Registrant.
The Registrant may terminate the Plan at any time and may
amend the Plan at any time prior to a Change of Control, with or
without retroactive effect. No amendment or termination of the
Plan, however, shall adversely affect the rights of any participant
with respect to amounts credited to his or her account under the
Plan as of the amendment or termination.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities being registered pursuant to
this registration statement will be passed upon for the
Registrant by Paul T. Dacier, Senior Vice President and General
Counsel of the Registrant. Mr. Dacier is eligible to participate
in the Plan.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the General Laws of the
Commonwealth of Massachusetts authorizes a Massachusetts corporation
to indemnify any director, officer, employee or other agent of the
corporation to whatever extent specified in or authorized by (i) the
articles of organization, (ii) a by-law adopted by the stockholders
or (iii) a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors.
Article 6(k) of the Registrant's Restated Articles of
Organization provides as follows:
No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director to the extent provided by applicable
law notwithstanding any provision of law imposing such liability;
provided, however, that to the extent, and only to the extent,
required by Section 13(b)(1 1/2) or any successor provision of the
Massachusetts Business Corporation Law, this provision shall not
eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under sections 61 or 62 of the Massachusetts Business Corporation
Law, or (iv) for any transaction from which the director derived an
improper personal benefit. This provision shall not be construed in
any way so as to impose or create liability. The forgoing
provisions of this Article 6(k) shall not eliminate the liability of
a director for any act or omission occurring prior to the date on
which this Article 6(k) becomes effective. No amendment to or
repeal of this Article 6(k) shall apply to or have any effect on the
liability or alleged liability of any director of the corporation
for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
In addition, Section 7 of the Registrant's Amended and Restated
By-laws, entitled "Indemnification of Directors and Officers,"
provides as follows:
The corporation shall, to the extent legally permissible,
indemnify each of its directors and officers (including persons who
act 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 such director or
officer in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in which such
director or officer may be involved or with which such director or
officer may be threatened, while in office or thereafter, by reason
of such individual being or having been such a director or officer,
except with respect to any matter as to which such director or
officer shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that such individual's
action was in the best interests of the corporation (any person
serving another organization in one or more of the indicated
capacities at the request of the corporation who shall have acted in
good faith in the reasonable belief that such individual's action
was in the best interest of such other organization to be deemed as
having acted in such manner with respect to the corporation) 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 corporation, after notice that it involves
such indemnification: (a) by a disinterested majority of the
directors then in office; or (b) by a majority of the disinterested
directors then in office, provided that there has been obtained an
opinion in writing of independent legal counsel to the effect that
such director or officer appears to have acted in good faith in the
reasonable belief that such individual's action was in the best
interests of the corporation; or (c) by the holders of a majority of
the outstanding stock at the time entitled to vote for directors,
voting as a single class, exclusive of any stock owned by any
interested director or officer. Expenses, including counsel fees,
reasonably incurred by any director or officer in connection with
the defense or disposition of any such action, suit or other
proceeding may be paid from time to time by the corporation in
advance of the final disposition thereof upon receipt of an
undertaking by such director or officer to repay to the corporation
the amounts so paid by the corporation if it is ultimately
determined that indemnification for such expenses is not authorized
under this Section 7. The right of indemnification hereby provided
shall not be exclusive of or affect any other rights to which any
director or officer may be entitled. As used in this Section, 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 this Section shall affect any
rights to indemnification to which corporate personnel other than
directors or officers may be entitled by contract or otherwise under
law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of or incorporated
by reference into this Registration Statement:
4.1 EMC Corporation Executive Deferred Compensation
Retirement Plan.
5.1 Opinion of Paul T. Dacier, Senior Vice President and
General Counsel to the Registrant, as to the legality of
the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Paul T. Dacier, Senior Vice President and
General Counsel to the Registrant (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).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes the following:
(1)To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(2)To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to reflect in the prospectus any facts or events
arising after the effective date of the 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.
(3)To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(4)That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof;
(5)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;
(6)That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(7)Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 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 on Form S-8 to be signed on
its behalf by the undersigned, thereunto duly authorized in the Town
of Hopkinton, Commonwealth of Massachusetts, on December 20, 2000.
EMC Corporation
By: /s/ Paul T. Dacier
---------------------------
Name: Paul T. Dacier
Title: Senior Vice President
and General Counsel
POWER OF ATTORNEY
We, the undersigned officers and directors of EMC Corporation,
hereby severally constitute Michael C. Ruettgers, William J. Teuber,
Jr. and Paul T. Dacier, and each of them singly, our true and lawful
attorneys-in-fact with full power of substitution and
resubstitution, for them, and each of them singly, to sign for us
and in our names in the capacities indicated below, the registration
statement filed herewith and any and all amendments to said
registration statement (including pre-effective and post-effective
amendments), and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable EMC
Corporation to comply with the provisions of the Securities Act of
1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys-in-fact, or any of them, to said
registration statement and any and all amendments thereto.
Witness our hands and common seal on the dates set forth below.
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 December 20, 2000
------------------- (Principal Executive
Richard J. Egan Officer) and Director
Chief Executive Officer December __, 2000
------------------------ and Director
Michael C. Ruettgers
/s/ William J. Teuber, Jr. Senior Vice President December 20, 2000
-------------------------- and Chief Financial
William J. Teuber, Jr. Officer
(Principal Financial
Officer and Chief
Accounting Officer)
/s/ Michael J. Cronin Director December 20, 2000
---------------------
Michael J. Cronin
/s/ John R. Egan Director December 20, 2000
----------------
John R. Egan
/s/ Maureen E. Egan Director December 20, 2000
-------------------
Maureen E. Egan
/s/ W. Paul Fitzgerald Director December 20, 2000
----------------------
W. Paul Fitzgerald
/s/ Joseph F. Oliveri Director December 20, 2000
----------------------
Joseph F. Oliveri
/s/ Alfred M. Zeien Director December 20, 2000
--------------------
Alfred M. Zeien
EXHIBIT INDEX
4.1 EMC Corporation Executive Deferred Compensation Retirement Plan.
5.1 Opinion of Paul T. Dacier, Senior Vice President and General
Counsel to the Registrant, as to the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Paul T. Dacier, Senior Vice President and General
Counsel to the Registrant (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).
