SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMC CORPORATION
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(Exact name of issuer as specified in its charter)
MASSACHUSETTS
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(State or other jurisdiction of Incorporation or Organization)
04-2680009
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(I.R.S. Employer Identification Number)
35 Parkwood Drive, Hopkinton,
Massachusetts 01748
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(Address of Principal Executive Offices)
CrosStor Software, Inc. Incentive Stock Option Plan
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(Full Title of the Plan)
Paul T. Dacier, Esq.
Senior Vice President and General Counsel
EMC Corporation
171 South Street
Hopkinton, Massachusetts 01748
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(Name and Address of Agent for Service)
(508) 435-1000
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(Telephone Number, Including Area Code for Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of Securities Amount Proposed Proposed Amount of
to be to be Maximum Maximum Registration
Registered Registered Offering Aggregate Fee (3)
------------------- (1) Price Per Offering -------------
---------- Share (2) Price (3)
--------- ---------
CrosStor Software, 708,165(1) $2.90 $2,053,678.50 $542.20
Inc. Incentive
Stock Option Plan
Common Stock, par
value $.01 per
share
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(1)This Registration Statement covers 708,165 shares of the
Registrant's common stock, par value $.01 per share (the "Common
Stock"), that may be issued upon exercise of options granted under
the CrosStor Software, Inc. Incentive Stock Option Plan (the
"Plan"). Also registered hereunder is such additional number of
shares of Common Stock, presently indeterminable, as may be
necessary to satisfy the antidilution provisions of the Plan to
which this Registration Statement relates.
(2)As set forth in Rule 457(h)(1) under the Securities Act of
1933, as amended, based on the prices at which options to acquire
the Common Stock under the Plan may be exercised, which prices
range from $0.31 to $44.30.
(3)Estimated in accordance with Rule 457(h)(1) 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:
(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;
(c)the Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2000, June 30, 2000, and September 30,
2000; and
(d)the description of the Registrant's common stock which is
contained in the Registrant's Registration Statement on Form 8-A
filed by the Registrant under Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on March 4, 1988,
including any amendments or reports filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of the Registrant's common stock
being registered pursuant to this registration statement will be
passed upon for the Registrant by Paul T. Dacier, Senior Vice
President and General Counsel of the Registrant. As of September
30, 2000, Mr. Dacier was the beneficial owner (for purposes of the
Exchange Act) of 319,643 shares of the Registrant's common stock.
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 CrosStor Software, Inc. Incentive Stock Option Plan
(which is referred to as the Programmed Logic
Corporation Incentive Stock Option Plan).
5.1 Opinion of Paul T. Dacier, Senior Vice President and
General Counsel to EMC Corporation, 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 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).
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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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 November 16, 2000.
EMC CORPORATION
By: /s/ Paul T. Dacier
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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 November 16, 2000
------------------- (Principal Executive
Richard J. Egan Officer) and Director
/s/ Michael C. Ruettgers Chief Executive Officer November 16, 2000
------------------------ and Director
Michael C. Ruettgers
/s/ William J. Teuber, Jr. Senior Vice President November 16, 2000
-------------------------- and Chief Financial
William J. Teuber, Jr. Officer (Principal
Financial Officer and
Chief Accounting
Officer)
/s/ Michael J. Cronin Director November 16, 2000
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Michael J. Cronin
/s/ John R. Egan Director November 16, 2000
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John R. Egan
/s/ Maureen E. Egan Director November 16, 2000
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Maureen E. Egan
/s/ W. Paul Fitzgerald Director November 16, 2000
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W. Paul Fitzgerald
/s/ Joseph F. Oliveri Director November 16, 2000
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Joseph F. Oliveri
/s/ Alfred M. Zeien Director November 16, 2000
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Alfred M. Zeien
EXHIBIT INDEX
4.1 CrosStor Software, Inc. Incentive Stock Option Plan (which is
referred to as the Programmed Logic Corporation Incentive Stock
Option Plan).
5.1 Opinion of Paul T. Dacier, Senior Vice President and General
Counsel to EMC Corporation, 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 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).
