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)
SOFTWORKS, INC. 1999 STOCK OPTION PLAN, AS AMENDED
TERASCAPE SOFTWARE INC. 1997 STOCK PLAN, AS AMENDED
(Full Title of the Plans)
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 Securities to Amount to Proposed Proposed Amount of
be be Maximum Maximum Registration
Registered Registered Offering Aggregate Fee (2)
(1) Price Per Offering
Share Price (2)
Softworks, Inc. 1999
Stock Option Plan, as 185,530(3) $58.4798(4) $10,849,757.29 $28,645.00
amended
Common Stock, par value
$.01 per share
Terascape Software Inc.
1997 Stock Option Plan, 11,272 (5) $11.106 (6) $125,186.83 $330.00
as amended
Common Stock, par value
$.01 per share
_________________
(1) 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 Plans to
which this Registration Statement relates.
(2) 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.
(3) This Registration Statement covers 185,530 shares of Common
Stock that may be issued upon exercise of options granted under
the Softworks, Inc. 1999 Stock Option Plan, as amended.
(4) 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 Registrant's common stock, par value $.01 per share, under
the Softworks, Inc. 1999 Stock Option Plan, as amended, may be
exercised, which prices range from $33.55 to $150.54.
(5) This Registration Statement covers 11,272 shares of Common
Stock that may be issued upon exercise of options granted under
the Terascape Software Inc. 1997 Stock Plan, as amended.
(6) As set forth in Rule 457(h)(1) under the Securities Act of
1933, as amended, based on the price at which options to acquire
the Registrant's common stock, par value $.01 per share, under
the Terascape Software Inc. 1997 Stock Plan, as amended, may be
exercised.
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 Report on Form 8-K filed on
February 22, 2000;
(b) the Registrant's Annual Report on Form 10-K for the fiscal
year ending December 31, 1999; and
(c) the description of the Registrant's common stock which is
contained 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 and 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 February
29, 2000, Mr. Dacier was the beneficial owner (for purposes of
the Exchange Act) of 197,268 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 omission 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 judgements, in
compromise or as fines and penalties, and counsel fees,
reasonably incurred by him 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 individual
shall have been adjudicated in any proceeding not to have acted
in good faith in the reasonable belief that his 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 interest 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
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 Softworks, Inc. 1999 Stock Option Plan, as amended.
4.2 Terascape Software Inc. 1997 Stock Plan, as amended.
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 page 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 to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the city of Hopkinton, Commonwealth of Massachusetts, on this
21st day of March, 2000.
EMC CORPORATION
By: /s/ Paul T. Dacier
-----------------------------
Paul T. Dacier
Senior Vice President and General Counsel
POWER OF ATTORNEY
Each person whose signature appears below severally
constitutes and appoints Colin G. Patteson, William J. Teuber,
Jr. and Paul T. Dacier, and each of them singly, with the power
to act without the other, as attorneys-in-fact, each with the
power of substitution, for him or her in any and all capacities,
to sign any amendment to this Registration Statement and to file
the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting
to said attorneys-in-fact, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-
in-fact or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Richard J. Egan Chairman of the Board of March 21, 2000
- ------------------- Directors (Principal Executive
Richard J. Egan Officer)
/s/ Michael C. Ruettgers Chief Executive Officer March 21, 2000
- -------------------------- and Director
Michael C. Ruettgers
/s/ Colin G. Patteson Senior Vice President, March 21, 2000
- -------------------------- Chief Administrative Officer
Colin G. Patteson and Treasurer (Principal Financial
Officer)
/s/ William J. Teuber, Jr. Senior Vice President March 21, 2000
- -------------------------- and Chief Financial Officer
William J. Teuber, Jr. (Principal Accounting Officer)
- -------------------------- Director March 21, 2000
Michael J. Cronin
/s/ John R. Egan Director March 21, 2000
- --------------------------
John R. Egan
/s/ Maureen E. Egan Director March 21, 2000
- --------------------------
Maureen E. Egan
- -------------------------- Director March 21, 2000
W. Paul Fitzgerald
/s/ Joseph F. Oliveri Director March 21, 2000
- --------------------------
Joseph F. Oliveri
/s/ Alfred M. Zeien Director March 21, 2000
- --------------------------
Alfred M. Zeien
EXHIBIT INDEX
4.1 Softworks, Inc. 1999 Stock Option Plan, as amended.
4.2 Terascape Software Inc. 1997 Stock Plan, as amended.
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 page to
this registration statement).
Exhibit 4.1
SOFTWORKS, Inc.
1999 Stock Option Plan, as amended
SECTION 1. GENERAL PROVISIONS
1.1. Name and General Purpose
The name of this plan is the SOFTWORKS, Inc. 1999 Stock
Option Plan (hereinafter called the "1999 Plan"). The 1999 Plan
is intended to be a broadly-based incentive plan which enables
SOFTWORKS Inc. (the "Company") and its subsidiaries and
affiliates to foster and promote the interests of the Company by
attracting and retaining directors, officers and employees of,
and consultants to, the Company who contribute to the Company's
success by their ability, ingenuity and industry, to enable such
directors, officers, employees and consultants to participate in
the long-term success and growth of the Company by giving them a
proprietary interest in the Company and to provide incentive
compensation opportunities competitive with those of competing
corporations.
1.2 Definitions
a. "Affiliate" means any person or entity controlled by or
under common control with the Company, by virtue of the ownership
of voting securities, by contract or otherwise.
b. "Board" means the Board of Directors of the Company.
c. "Change in Control" means a change of control of the
Company, or in any
person directly or indirectly controlling the Company, which
shall mean:
(i) any person who is not currently such becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of
the Company's then outstanding voting securities; or
(ii) three or more directors, whose election or nomination
for election is not approved by a majority of the Incumbent Board
(as hereinafter defined), are elected within any single 24-month
period to serve on the Board of Directors; or
(iii) members of the Incumbent Board cease to constitute a
majority of the Board of Directors without the approval of the
remaining members of the Incumbent Board; or
(iv) any merger (other than a merger where the Company is
the survivor and there is no accompanying Change in Control under
subparagraphs (i), (ii) or (iii) of this paragraph (b)),
consolidation, liquidation or dissolution of the Company, or the
sale of all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur pursuant to subparagraph (i) of this
definition solely because 25% or more of the combined voting
power of the Company's outstanding securities is acquired by one
or more employee benefit plans maintained by the Company or by
any other employer, the majority interest in which is held,
directly or indirectly, by the Company. For purposes of this
definition, the terms "person" and "beneficial owner" shall have
the meaning set forth in Sections 3(a) and 13(d) of the Exchange
Act, and in the regulations promulgated thereunder, as in effect
on February 7, 1999; and the term "Incumbent Board" shall mean
(A) the members of the Board of Directors of the Company on
February 7, 1999, to the extent that they continue to serve as
members of the Board of Directors, and (B) any individual who
becomes a member of the Board of Directors after February 7,
1999, if his election or nomination for election as a director
was approved by a vote of at least three-quarters of the then
Incumbent Board.
d. "Committee" means the Committee referred to in Section
1.3 of the 1999 Plan.
e. "Common Stock" means shares of the Common Stock, par
value $.10 per share, of the Company.
f. "Company" means SOFTWORKS Inc., a corporation organized
under the laws of the State of Delaware (or any successor
corporation).
g. "Fair Market Value" means the market price of the Common
Stock on The Nasdaq Stock Market on the date of the grant or as
reported on any other exchange on which the Common Stock is then
traded on such date or on any other date on which the Common
Stock is to be valued hereunder. If no sale shall have been
reported on any such exchange, Fair Market Value shall be
determined by the Committee.
h. "Non-Employee Director" shall have the meaning set forth
in Rule 16(b) promulgated by the Securities and Exchange
Commission ("Commission").
i. "Option" means any option to purchase Common Stock under
Section 2 of the 1999 Plan.
j. "Option Agreement" means the option agreement described
in Section 2.4 of the 1999 Plan.
k.. "Participant" means any director, officer, employee or
consultant of the Company, a Subsidiary or an Affiliate who is
selected by the Committee to participate in the 1999 Plan.
l. "Subsidiary" means any corporation in which the Company
possesses directly or indirectly 50% or more of the combined
voting power of all classes of stock of such corporation.
m. "Total Disability" means accidental bodily injury or
sickness which wholly and continuously disabled an optionee. The
Committee, whose decisions shall be final, shall make a
determination of Total Disability.
1.3 Administration of the Plan
The 1999 Plan shall be administered by the Board or by the
Committee appointed by the Board consisting of two or more
members of the Board all of whom shall be Non-Employee Directors.
The Committee shall serve at the pleasure of the Board and shall
have such powers as the Board may, from time to time, confer upon
it.
Subject to this Section 1.3, the Committee shall have sole
and complete authority to adopt, alter, amend or revoke such
administrative rules, guidelines and practices governing the
operation of the 1999 Plan as it shall, from time to time, deem
advisable, and to interpret the terms and provisions of the 1999
Plan.
The Committee shall keep minutes of its meetings and of
action taken by it without a meeting. A majority of the
Committee shall constitute a quorum, and the acts of a majority
of the members present at any meeting at which a quorum is
present, or acts approved in writing by all of the members of the
Committee without a meeting, shall constitute the acts of the
Committee.
1.4 Eligibility
Stock Options may be granted only to directors, officers,
employees or consultants of the Company or a Subsidiary or
Affiliate. Any person who has been granted any Option may, if he
is otherwise eligible, be granted an additional Option or
Options.
1.5 Shares
The aggregate number of shares reserved for issuance
pursuant to the 1999 Plan shall be 1,500,000 shares of Common
Stock, or the number and kind of shares of stock or other
securities which shall be substituted for such shares or to which
such shares shall be adjusted as provided in Section 1.6.
Such number of shares may be set aside out of the authorized
but unissued shares of Common Stock or out of issued shares of
Common Stock acquired for and held in the Treasury of the
Company, not reserved for any other purpose. Shares subject to,
but not sold or issued under, any Option terminating or expiring
for any reason prior to its exercise in full will again be
available for Options thereafter granted during the balance of
the term of the 1999 Plan.
1.6 Adjustments Due to Stock Splits, Mergers, Consolidation,
Etc.
If, at any time, the Company shall take any action, whether
by stock dividend, stock split, combination of shares or
otherwise, which results in a proportionate increase or decrease
in the number of shares of Common Stock theretofore issued and
outstanding, the number of shares which are reserved for issuance
under the 1999 Plan and the number of shares which, at such time,
are subject to Options shall, to the extent deemed appropriate by
the Committee, be increased or decreased in the same proportion,
provided, however, that the Company shall not be obligated to
issue fractional shares.
Likewise, in the event of any change in the outstanding
shares of Common Stock by reason of any recapitalization, merger,
consolidation, reorganization, combination or exchange of shares
or other corporate change, the Committee shall make such
substitution or adjustments, if any, as it deems to be
appropriate, as to the number or kind of shares of Common Stock
or other securities which are reserved for issuance under the
1999 Plan and the number of shares or other securities which, at
such time are subject to Options.
In the event of a Change in Control, at the option of the
Board or Committee, (a) all Options outstanding on the date of
such Change in Control shall, for a period of sixty (60) days
following such Change in Control, become immediately and fully
exercisable, and (b) an optionee will be permitted to surrender
for cancellation within sixty (60) days after such Change in
Control any Option or portion of an Option which was granted more
than six (6) months prior to the date of such surrender, to the
extent not yet exercised, and to receive a cash payment in an
amount equal to the excess, if any, of the Fair Market Value (on
the date of surrender) of the shares of Common Stock subject to
the Option or portion thereof surrendered, over the aggregate
purchase price for such Shares under the Option.
1.7 Non-Alienation of Benefits
Except as herein specifically provided, no right or unpaid
benefit under the 1999 Plan shall be subject to alienation,
assignment, pledge or charge and any attempt to alienate, assign,
pledge or charge the same shall be void. If any Participant or
other person entitled to benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then
such benefit shall, in the discretion of the Committee, cease.
1.8 Withholding or Deduction for Taxes
If, at any time, the Company or any Subsidiary or Affiliate
is required, under applicable laws and regulations, to withhold,
or to make any deduction for any taxes, or take any other action
in connection with any Option exercise, the Participant shall be
required to pay to the Company or such Subsidiary or Affiliate,
the amount of any taxes required to be withheld, or, in lieu
thereof, at the option of the Company, the Company or such
Subsidiary or Affiliate may accept a sufficient number of shares
of Common Stock to cover the amount required to be withheld.
1.9 Administrative Expenses
The entire expense of administering the 1999 Plan shall be
borne by the Company.
1.10 General Conditions
a. The Board or the Committee may, from time to time,
amend, suspend or terminate any or all of the provisions of the
1999 Plan, provided that, without the Participant's approval, no
change may be made which would alter or impair any right
theretofore granted to any Participant.
b. With the consent of the Participant affected thereby,
the Committee may amend or modify any outstanding Option in any
manner not inconsistent with the terms of the 1999 Plan,
including, without limitation, and irrespective of the provisions
of Section 2.3(c) below, to accelerate the date or dates as of
which an installment of an Option becomes exercisable.
c. Nothing contained in the 1999 Plan shall prohibit the
Company or any Subsidiary or Affiliate from establishing other
additional incentive compensation arrangements for employees of
the Company or such Subsidiary or Affiliate.
d. Nothing in the 1999 Plan shall be deemed to limit, in
any way, the right of the Company or any Subsidiary or Affiliate
to terminate a Participant's employment with the Company (or such
Subsidiary or Affiliate) at any time.
e. Any decision or action taken by the Board or the
Committee arising out of or in connection with the construction,
administration, interpretation and effect of the 1999 Plan shall
be conclusive and binding upon all Participants and any person
claiming under or through any Participant.
f. No member of the Board or of the Committee shall be
liable for any act or action, whether of commission or omission,
(i) by such member except in circumstances involving actual bad
faith, nor (ii) by any other member or by any officer, agent or
employee.
1.11 Compliance with Applicable Law
Notwithstanding any other provision of the 1999 Plan, the
Company shall not be obligated to issue any shares of Common
Stock, or grant any Option with respect thereto, unless it is
advised by counsel of its selection that it may do so without
violation of the applicable Federal and State laws pertaining to
the issuance of securities and the Company may require any stock
certificate so issued to bear a legend, may give its transfer
agent instructions limiting the transfer thereof, and may take
such other steps, as in its judgment are reasonably required to
prevent any such violation.
1.12 Effective Dates
The 1999 Plan was adopted by the Board on February 7, 1999
and amended by the Board on June 21, 1999. The 1999 Plan shall
terminate on February 6, 2009.
Section 2. OPTION GRANTS
2.1 Authority of Committee
Subject to the provisions of the 1999 Plan, the Committee
shall have the sole and complete authority to determine (i) the
Participants to whom Options shall be granted; (ii) the number of
shares to be covered by each Option; and (iii) the conditions and
limitations, if any, in addition to those set forth in Sections 2
and 3 hereof, applicable to the exercise of an Option, including
without limitation, the nature and duration of the restrictions,
if any, to be imposed upon the sale or other disposition of
shares acquired upon exercise of an Option.
Stock Options granted under the 1999 Plan shall be non-
qualified stock options.
The Committee shall have the authority to grant Options.
2.2 Option Exercise Price
The price of stock purchased upon the exercise of Options
granted pursuant to the 1999 Plan shall be the Fair Market Value
thereof at the time that the Option is granted.
The purchase price is to be paid in full in cash, certified
or bank cashier's check or, at the option of the Company, Common
Stock valued at its Fair Market Value on the date of exercise, or
a combination thereof, when the Option is exercised and stock
certificates will be delivered only against such payment.
2.3 Option Grants
Each Option will be subject to the following provisions:
a. Term of Option
An Option will be for a term of not more than ten years from
the date of grant.
b. Exercise
(i) By an Employee:
Subject to the power of the Committee under Section 1.10(b)
above and except in the manner described below upon the death of
the optionee, an Option may be exercised only in installments as
follows: up to one-half of the subject shares on and after the
first anniversary of the date of grant, up to all of the subject
shares on and after the second such anniversary of the date of
the grant of such Option but in no event later than the
expiration of the term of the Option.
An Option shall be exercisable during the optionee's
lifetime only by the optionee and shall not be exercisable by the
optionee unless, at all times since the date of grant and at the
time of exercise, such optionee is an employee of or providing
services to the Company, any parent corporation of the Company or
any Subsidiary or Affiliate, except that, upon termination of all
such employment or provision of services (other than by death,
Total Disability, or by Total Disability followed by death in the
circumstances provided below), the optionee may exercise an
Option at any time within three months thereafter but only to the
extent such Option is exercisable on the date of such
termination.
Upon termination of all such employment by Total Disability,
the optionee may exercise such Options at any time within three
years thereafter, but only to the extent such Option is
exercisable on the date of such termination.
In the event of the death of an optionee (i) while an
employee of or providing services to the Company, any parent
corporation of the Company or any Subsidiary or Affiliate, or
(ii) within three months after termination of all such employment
or provision of services (other than for Total Disability) or
(iii) within three years after termination on account of Total
Disability of all such employment or provision of services, such
optionee's estate or any person who acquires the right to
exercise such option by bequest or inheritance or by reason of
the death of the optionee may exercise such optionee's Option at
any time within the period of three years from the date of death.
In the case of clauses (i) and (iii) above, such Option shall be
exercisable in full for all the remaining shares covered thereby,
but in the case of clause (ii) such Option shall be exercisable
only to the extent it was exercisable on the date of such
termination.
(ii) By Persons other than Employees:
If the optionee is not an employee of the Company or the
parent corporation of the Company or any Subsidiary or Affiliate,
the vesting of such optionee's right to exercise his Options
shall be established and determined by the Committee in the
Option Agreement covering the Options granted to such optionee.
Notwithstanding the foregoing provisions regarding the
exercise of an Option in the event of death, Total Disability,
other termination of employment or provision of services or
otherwise, in no event shall an Option be exercisable in whole or
in part after the termination date provided in the Option
Agreement.
c. Transferability
An Option granted under the 1999 Plan shall not be
transferable otherwise than by will or by the laws of descent and
distribution, or, as determined by the Board or the Committee, to
(i) a member or members of the optionee's family, (ii) a trust,
(iii) a family limited partnership or (iv) a similar estate
planning vehicle primarily for members of the optionee's family.
2.4 Agreements
In consideration of any Options granted to a Participant
under the 1999 Plan, each such Participant shall enter into an
Option Agreement with the Company providing, consistent with the
1999 Plan, such terms as the Committee may deem advisable.
g\sec\plans\SOFTWORKS1999plan.doc
Exhibit 4.2
TERASCAPE SOFTWARE INC.
1997 STOCK PLAN
(As Amended March 3, 1999)
1. Purpose. The purpose of this Terascape Software Inc.
1997 Stock Plan (the "Plan") is to advance the interests of
Terascape Software Inc., a Massachusetts corporation (the
"Company"), by strengthening the ability of the Company to
attract, retain and motivate key employees, consultants and
other individual contributors of or to the Company or any
present or future parent or subsidiary of the Company (the
"Company Group") by providing them with an opportunity to
purchase or receive as bonuses stock of the Company and thereby
permitting them to share in the Company's success. It is
intended that this purpose will be effected by granting (i)
incentive stock options ("Incentive Options") which are
intended to qualify under the provisions of Section 422 of the
Internal Revenue Code of 1986, as heretofore and hereafter
amended (the "Code"), and non-statutory stock options
("Nonqualified Options") which are not intended to meet the
requirements of Section 422 of the Code and which are intended
to be taxed under Section 83 of the Code (both Incentive
Options and Nonqualified Options shall be collectively referred
to as "Options"), (ii) stock purchase authorizations ("Purchase
Authorizations") and (iii) stock bonus awards ("Bonuses").
2. Effective Date. This Plan was adopted and approved
by the Board of Directors of the Company (the "Board") on
January 28, 1997 (the "effective date" of the Plan), and was
approved by the Company's stockholders within one year after
the effective date.
3. Stock Covered by the Plan. Subject to adjustment as
provided in Sections 9 and 10 below, the shares that may be
made subject to Options, Purchase Authorizations or Bonuses
under the Plan ("Shares") shall not exceed in the aggregate one
million (1,000,000) shares of the common stock, without par
value, of the Company ("Common Stock"). Any Shares subject to
an Option or Purchase Authorization which for any reason
expires or is terminated unexercised as to such Shares and any
Shares reacquired by the Company pursuant to forfeiture or a
repurchase right hereunder may again be the subject of an
Option, Purchase Authorization or Bonus under the Plan. The
Shares purchased pursuant to Purchase Authorizations or the
exercise of Options under this Plan or issued as Bonuses may,
in whole or in part, be either authorized but unissued Shares
or issued Shares reacquired by the Company.
4. Administration. This Plan shall be administered by
the Board, whose construction and interpretation of the Plan's
terms and provisions shall be final and conclusive. The Board
shall have authority, subject to the express provisions of the
Plan, to construe the Plan and the respective Options, Purchase
Authorizations, Bonuses and related agreements, to prescribe,
amend and rescind rules and regulations relating to the Plan,
to determine the terms and provisions of the respective
Options, Purchase Authorizations, Bonuses and related
agreements, and to make all other determinations in the
judgment of the Board necessary or desirable for the
administration of the Plan. The Board may correct any defect or
supply any omission or reconcile any inconsistency in the Plan
or in any Option, Purchase Authorization, Bonus, or related
agreement in the manner and to the extent it shall deem
expedient to carry the Plan into effect, and it shall be the
sole and final judge of such expediency. No director shall be
liable for any action or determination made in good faith. The
Board may, to the full extent permitted by law, delegate any or
all of its powers under the Plan to a committee (the
"Committee") appointed by the Board, and if the Committee is so
appointed and to the extent such powers are delegated, all
references to the Board in the Plan shall mean and relate to
such Committee.
5. Eligible Recipients. Options, Purchase Authorizations
and Bonuses may be granted to such key employees, consultants or
other individual contributors of or to the Company Group,
including without limitation members of the Board and members of
any scientific or technical advisory boards, as are selected by
the Board (a "Participant"); provided, that only employees of
the Company Group shall be eligible for grant of an Incentive
Option.
6. Duration of the Plan. This Plan shall terminate ten
(10) years from the effective date hereof, unless terminated
earlier pursuant to Section 13 hereafter, and no Options,
Purchase Authorizations or Bonuses may be granted or made
thereafter.
7. Terms and Conditions of Options. Purchase
Authorizations and Bonuses, Options, Purchase Authorizations
and Bonuses granted or made under this Plan shall be evidenced
by agreements in such form and containing such terms and
conditions as the Board shall determine; provided, however,
that such agreements shall evidence among their terms and
conditions the following:
(a) Price. The purchase price per Share payable upon the
exercise of each Option or the purchase pursuant to each
Purchase Authorization granted or made hereunder shall be
determined by the Board at the time the Option or Purchase
Authorization is granted or made. Subject to the condition of
paragraph 7(j) (i), if applicable, the purchase price per Share
payable upon the exercise of each Incentive Option granted
hereunder shall not be less than one hundred percent (100%) of
the fair market value per Share of the Common Stock on the day
the Incentive Option is granted or made. Fair market value shall
be determined in accordance with procedures to be established in
good faith by the Board. Bonus Shares shall be issued in
consideration of services previously rendered, which shall be
valued for such purposes by the Board or the Committee, as the
case may be.
(b) Number of Shares. Each agreement shall specify the
number of Shares to which it pertains.
(c) Exercise of Options. Each Option shall be exercisable
for the full amount or for any part thereof and at such
intervals or in such installments as the Board may determine at
the time it grants such Option; provided, however, that no
Option shall be exercisable with respect to any Shares later
than ten (10) years after the date of the grant of such Option
(or five (5) years in the case of Incentive Options to which
paragraph 7(j) (ii) applies). An Option shall be exercisable
only by delivery of a written notice to the Company's Treasurer,
or any other officer of the Company designated by the Board to
accept such notices on its behalf, specifying the number of
Shares for which the Option is exercised and accompanied by
either (i) payment or (ii) if permitted by the Board,
irrevocable instructions to a broker to promptly deliver to the
Company full payment in accordance with paragraph 7(d) (ii)
below of the amount necessary to pay the aggregate exercise
price. With respect to an Incentive Option, the permission of
the Board referred to in clause (ii) of the preceding sentence
must be granted at the time the Incentive Option is granted.
(d) Payment. Payment shall be made in full (i) at the
time the Option is exercised, (ii) promptly after the
Participant forwards the irrevocable instructions referred to in
paragraph 7(c) (ii) above to the appropriate broker, if exercise
of an Option is made pursuant to paragraph 7(c) (ii) above, or
(iii) at the time the purchase pursuant to a Purchase
Authorization is made. Payment shall be made either (a) in cash,
(b) by check, (c) if permitted by the Board (with respect to an
Incentive Option, such permission to have been granted at the
time of the Incentive Option grant), by delivery and assignment
to the Company of shares of Company stock having a fair market
value (as determined by the Board) equal to the exercise or
purchase price, (d) if permitted by the Board, stated in the
agreement evidencing the Option or Purchase Authorization, and
to the extent permitted by any applicable law, by the
Participant's recourse promissory note, which note must be due
and payable not more than five (5) years after the date the
Option or Purchase Authorization is exercised, or (e) by a
combination of (a), (b), (c) and/or (d). If shares of Company
stock are to be used to pay the exercise price of an Incentive
Option, the Company prior to such payment must be furnished with
evidence satisfactory to it that the acquisition of such shares
and their transfer in payment of the exercise price satisfy the
requirements of Section 422 of the Code and other applicable
laws.
(e) Withholding Taxes, Delivery of Shares. The Company's
obligation to deliver Shares upon exercise of an Option or upon
purchase pursuant to a Purchase Authorization or issuance
pursuant to a Bonus shall be subject to the Participant's
satisfaction of all applicable federal, state and local income
and employment tax withholding obligations. Without limiting
the generality of the foregoing, the Company shall have the
right to deduct from payments of any kind otherwise due to the
Participant any federal, state or local taxes of any kind
required by law to be withheld with respect to any Shares
issued upon exercise of Options or purchased or issued pursuant
to Purchase Authorizations or Bonuses. The Participant may
elect to satisfy such obligation(s), in whole or in part, by
(i) delivering to the Company a check for the amount required
to be withheld or (ii) if the Board in its sole discretion
approves in any specific or general case, having the Company
withhold Shares or delivering to the Company already-owned
shares of Common Stock, having a value equal to the amount
required to be withheld, as determined by the Board.
(f) Non-Transferability. No Option or Purchase
Authorization shall be transferable by the Participant
otherwise than by will or the laws of descent or distribution,
and each Option or Purchase Authorization shall be exercisable
during the Participant's lifetime only by the Participant.
(g) Termination of Purchase Authorizations and Options.
Each Purchase Authorization shall terminate and may no longer
be exercised if the Participant ceases for any reason to
provide services to a member of the Company Group. Except to
the extent the Board provides specifically in an agreement
evidencing an Option for a lesser period (or a greater period,
in the case of Nonqualified Options only), each Option shall
terminate and may no longer be exercised if the Participant
ceases for any reason to provide services to a member of the
Company Group in accordance with the following provisions:
(i) if the Participant ceases to perform services for any
reason other than death or
disability (as defined in Section 22 (e) (3) of the
Code), the Participant may, at any
time within a period of thirty (30) days after the
date of such cessation of the
performance of services, exercise the Option to the
extent that the Option was
exercisable on the date of such cessation;
(ii)if the Participant ceases to perform services because
of disability (as defined in
Section 22 (e) (3) of the Code), the Participant may,
at any time within a period of one
hundred eighty (180) days after the date of such
cessation of the performance of
services, exercise the Option to the extent that the
Option was exercisable on the date
of such cessation; and
(iii)if the Participant ceases to perform services because of death,
the Option, to the extent that the Participant was entitled to
exercise it on the date of death, may be
exercised within a period of one hundred eighty (180)
days after the Participant's
death by the person or persons to whom the
Participant's rights under the Option pass by will
or by the laws of descent or distribution;
provided, however, that no Option or Purchase
Authorization may be exercised to any extent by anyone
after the date of its expiration; and provided,
further, that Options and Purchase Authorizations may
be exercised only as to Vested Shares (as defined in
the applicable agreement with the Participant) after
the Participant has ceased to perform services for any
member of the Company Group.
(h) Rights as Stockholder. A Participant shall have no
rights as a stockholder with respect to any Shares covered by
an Option, Purchase Authorization or Bonus until the date of
issuance of a stock certificate in the Participant's name for
such Shares.
(i) Repurchase of Shares by the Company. Any Shares
purchased or acquired upon exercise of an Option or pursuant
to a Purchase Authorization or Bonus may in the discretion of
the Board be subject to repurchase by or forfeiture to the
Company if and to the extent and at the repurchase price, if
any, specifically set forth in the option, purchase or bonus
agreement pursuant to which the Shares were purchased or
acquired. Certificates representing Shares subject to such
repurchase or forfeiture may be subject to such escrow and
stock legending provisions as may be set forth in the option,
purchase or bonus agreement pursuant to which the Shares were
purchased or acquired.
(j) 10% Stockholder. If any Participant to whom an
Incentive Option is granted pursuant to the provisions of the
Plan is on the date of grant the owner of stock (as determined
under Section 424 (d) of the Code) possessing more than 10% of
the total combined voting power or value of all classes of
stock of the Company, its parent, if any, or subsidiaries,
then the following special provisions shall be applicable:
(i) The exercise price per Share subject to such Option
shall not be less than 10% of the fair market value
of each Share on the date of grant; and
(ii) The Option shall not have a term in excess of five
years from the date of grant.
8. Restrictions on Incentive Options. Incentive Options
granted under this Plan shall be
specifically designated as such and shall be subject to the
additional restriction that the aggregate fair
market value, determined as of the date the Incentive Option is
granted, of the Shares with respect to
which Incentive Options are exercisable for the first time by a
Participant during any calendar year
shall not exceed $100,000. If an Incentive Option which exceeds
the $100,000 limitation of this
paragraph 8 is granted, the portion of such Option which is
exercisable for shares in excess of the
$100,000 limitation shall be treated as a Nonqualified Option
pursuant to Section 422 (d) of the Code.
In the event that such Participant is eligible to participate in
any other stock incentive plans of the
Company, its parent, if any, or a subsidiary which are also
intended to comply with the provisions of
Section 422 of the Code, such annual limitation shall apply to
the aggregate number of shares for which
options may be granted under all such plans.
9. Stock Dividends: Stock Splits, Stock Combinations,
Recapitalizations. Appropriate adjustment shall be made by the
Board in the maximum number of Shares subject to the Plan and
in the number, kind, and exercise or purchase price of Shares
covered by outstanding Options and Purchase Authorizations
granted hereunder to give effect to any stock dividends. stock
splits, stock combinations, recapitalizations and other
similar changes in the capital structure of the Company after
the effective date of the Plan.
10.Merger, etc.
(a) In the event of any merger, consolidation or
similar reorganization of the Company as a result of which the
Common Stock is converted into or exchanged for cash, securities
or other property, all outstanding Options and Purchase
Authorizations granted hereunder shall, effective upon the
consummation of such transaction, be deemed to cover (i) such
amount of cash, securities or other property which one share of
Common Stock was converted into or exchanged for in such
transaction multiplied by (ii) the number of shares of Common
Stock subject to such Option or Purchase Authorization
immediately prior to the consummation of such transaction. The
Board of Directors of the Company shall use reasonable efforts
to cause the acquiring or succeeding corporation in such
transaction to assume such Options and Purchase Authorizations
in the manner provided in the immediately preceding sentence;
provided, however, if such acquiring or succeeding corporation
does not agree to so assume such Options and Purchase
Authorizations, then the Company shall, by written notice to the
holders of such Options and Purchase Authorizations given at
least 10 days prior to the closing of such transaction, provide
that all such Options and Purchase Authorizations shall
terminate (to the extent not then exercised) effective upon the
closing of such transaction.
(b) In the event of a dissolution or liquidation of
the Company (a "Liquidation"), all outstanding Options and
Purchase Authorizations shall terminate (to the extent not then
exercised) effective upon such Liquidation. The Company shall
give written notice to each holder of an outstanding Option or
Purchase Authorization of a proposed Liquidation at least 10
days prior to the effective date of such Liquidation.
(c) Notwithstanding the foregoing provisions of this
Section 10, effective immediately prior to (i) a Liquidation or
(ii) an Acquisition (as defined below), the number of shares of
Common Stock for which each Eligible Option (as defined below)
is then exercisable shall be increased (if the Option is not
already fully vested) to such number as would apply if the
vesting schedule for such Option had commenced one year prior to
the date specified in the agreement for such Option (with the
remaining vesting schedule for such Option, to the extent such
Option remains outstanding, shortened by one year). For purposes
of this Section 10, an "Acquisition" shall mean (i) a merger,
consolidation or other business combination which results in the
stockholders of the Company immediately prior to such
transaction owning, immediately following such transaction, less
than 50% of the outstanding voting stock of the Company or (if
the Company is not the surviving corporation or becomes a
subsidiary of another Company in such transaction) the surviving
or acquiring entity, (ii) the sale of shares of capital stock of
the Company, in a single transaction or series of related
transactions, representing at least 51% of the outstanding
voting stock of the Company or (iii) the sale of all or
substantially all of the assets of the Company. For purposes of
this Section 10, an "Eligible Option" shall mean an Option that
is held by an optionee who continues to be employed by the
Company at the time of the effectiveness of such Liquidation or
Acquisition and that has not expired as of the effective date of
such Liquidation or Acquisition; provided that an Option for
which vesting does not commence until certain performance
targets are achieved shall be deemed an Eligible Option only if
and to the extent that such performance targets have been
achieved.
11. Investment Representations: Transfer Restrictions.
The Company may require Participants, as a condition of
purchasing Shares pursuant to the exercise of an Option or to a
Purchase Authorization or receipt of shares as a Bonus, to give
written assurances in substance and form satisfactory to the
Company to the effect that such person is acquiring the Shares
for the Participant's own account for investment and not with
any present intention of selling or otherwise distributing the
same, and to such other effects as the Company deems necessary
or appropriate (including without limitation confirmation that
the Participant is aware of any applicable restrictions on
transfer of the Shares, as specified in the by-laws of the
Company or otherwise) in order to comply with federal and
applicable state securities laws.
12. Definitions.
(a) The term "employee" shall have, for purposes of this
Plan, the meaning ascribed to "employee" under Section 340 1
(c) of the Code and the regulations promulgated thereunder.
(b) The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as heretofore and
hereafter amended.
(b) The term "Parent" shall have, for purposes of this
Plan, the meaning ascribed to it under Section 424 (e) of the
Code and the regulations promulgated thereunder.
(d) The term "subsidiary" shall have, for all purposes
under this Plan, the meaning ascribed to it under Section 424
(f) of the Code and the regulations promulgated thereunder.
13. Termination or Amendment of Plan. The Board may at any
time terminate the Plan or make such changes in or additions to
the Plan as it deems advisable without further action on the
part of the stockholders of the Company, provided:
(a) that no such termination or amendment shall adversely
affect or impair any then outstanding Option, Purchase
Authorization, Bonus or related agreement without the consent
of the Participant holding such Option, Purchase Authorization,
Bonus or related agreement; and
(b) that no such amendment which (i) increases the
maximum number of Shares subject to this Plan (except to the
extent provided in Section 3), (ii) materially increases the
benefits accruing to Participants, or (iii) materially modifies
the requirements as to eligibility for participation in the
Plan may be made without obtaining, or being conditioned upon,
stockholder approval.
With the consent of the Participant affected, the Board may
amend outstanding Options, Purchase Authorizations, Bonuses or
related agreements in a manner not inconsistent with the Plan.
The Board shall have the right to amend or modify the terms and
provisions of the Plan and of any outstanding Incentive Options
granted under the Plan to the extent necessary to qualify any or
all such Options for such favorable federal income tax treatment
(including deferral of taxation upon exercise) as may be
afforded incentive stock options under Section 422 of the Code.
Exhibit 5.1
[EMC Corporation Letterhead]
35 Parkwood Drive
Hopkinton, MA 01748
EMC Corporation
35 Parkwood Drive
Hopkinton, MA 01748
Ladies and Gentlemen:
I am Senior Vice President and General Counsel to 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 (the "Securities
Act"), 196,802 shares (the "Shares") of common stock, par value
$.01 per share, of the Company ("Common Stock") which may be
issued pursuant to the exercise of options granted under the
Softworks, Inc. 1999 Stock Option Plan, as amended, and the
Terascape Software Inc. 1997 Stock Plan, as amended
(collectively, the "Plans").
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 Bars 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 Plans, 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 Commission
promulgated thereunder.
This opinion is furnished by me, as Senior 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
Senior Vice President and
General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated
January 21, 2000 relating to the consolidated financial
statements and consolidated financial statement schedule,
which appears in EMC Corporation's Annual Report on Form 10-
K for the year ended December 31, 1999.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
March 17, 2000
