-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VpLXxF4nhmSMokGRT2YJmNow2eKGGgLIh4nr3+QD4d+f2ABYPFUZvT6ceRLBI4fD 1ZeH6zrpXnZMdSv1ugmhlA== 0000790070-00-000033.txt : 20001222 0000790070-00-000033.hdr.sgml : 20001222 ACCESSION NUMBER: 0000790070-00-000033 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001221 EFFECTIVENESS DATE: 20001221 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMC CORP CENTRAL INDEX KEY: 0000790070 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER STORAGE DEVICES [3572] IRS NUMBER: 042680009 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-52362 FILM NUMBER: 792784 BUSINESS ADDRESS: STREET 1: 35 PARKWOOD DR CITY: HOPKINTON STATE: MA ZIP: 01748-9103 BUSINESS PHONE: 5084351000 MAIL ADDRESS: STREET 1: 35 PARKWOOD DRIVE CITY: HOPKINTON STATE: MA ZIP: 01748-9103 S-8 1 0001.txt 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). EX-4.1 2 0002.txt Exhibit 4.1 EMC CORPORATION EXECUTIVE DEFERRED COMPENSATION RETIREMENT PLAN (Adopted Effective January 1, 2001) EMC CORPORATION EXECUTIVE DEFERRED COMPENSATION RETIREMENT PLAN (Adopted Effective January 1, 2001) Article 1. INTRODUCTION 1.1. Adoption of Plan. The EMC Corporation Executive ----------------- Deferred Compensation Retirement Plan has been adopted effective as of January 1, 2001. 1.2. Purpose of Plan. The Company (as defined below) ---------------- has adopted the Plan (as defined below) to provide a competitive level of retirement benefits to certain designated employees of the Company or any of its Subsidiaries by allowing them to defer receipt of designated percentages of their Compensation (as defined below) and to provide, in the sole discretion of the Company, Company Credits (as defined below). 1.3. Status of Plan. The Plan is intended to be "a --------------- plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees" within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA (as defined below), and shall be interpreted and administered to the fullest extent possible in a manner consistent with that intent. Article 2. DEFINITIONS Wherever used herein, the following terms shall have the meanings set forth below, unless a different meaning is clearly required by the context: 2.1. "Account" means, for each Participant, the account established for his or her benefit under Section 5.1. 2.2. "Administrator" means initially the Executive Compensation and Stock Option Committee of the Board (as defined below) as it may be constituted from time to time, or otherwise means a committee comprised of such members of the Board or executive officers of the Company as may be appointed by the Board or the Company's President or Chief Executive Officer from time to time. 2.3. "Board" means the Board of Directors of the Company, as it may be constituted from time to time. 2.4. "Change of Control" means the determination by the Administrator, in its sole discretion, that any of the following shall have occurred: (a) a reorganization, consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which the Company's common stock, par value $.01 per share (the "Common Stock") is converted into cash, securities or other property, in either case other than a reorganization, consolidation or merger of the Company in which the holders of Common Stock immediately prior to the reorganization, consolidation or merger hold, directly or indirectly, at least a majority of the voting stock of the continuing or surviving corporation immediately after such reorganization, consolidation or merger; or (b) the sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company. 2.5. "Code" means the Internal Revenue Code of 1986, as amended from time to time. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. 2.6. "Company" means EMC Corporation, a corporation formed under the laws of The Commonwealth of Massachusetts. 2.7. "Company Credit" means any credit from the Company which is received by a Participant under Section 4.2. 2.8. "Company Credit Subaccount" means the subaccount within the Participant's Account to which Company Credits and allocable earnings credits, if any, are credited. 2.9 "Company Credit Eligible Employee" means an employee of the Company or any of its Subsidiaries selected by the Administrator as eligible for Company Credits under Section 4.2 from among the group of highly compensated or managerial employees of the Company or any of its Subsidiaries. 2.10. "Compensation" means any cash bonuses payable from time to time by the Company or any of its Subsidiaries to a Participant; provided, however, that the Administrator may, in its sole discretion, amend this Section 2.10 to cover other types of compensation payable from time to time by the Company or any of its Subsidiaries to a Participant, including, without limitation, cash commissions and salary. 2.11. "Elective Deferral" means the portion of Compensation which is deferred by a Participant under Section 4.1. 2.12. "Elective Deferral Subaccount" means the subaccount within the Participant's Account to which Elective Deferrals and allocable earnings credits are credited. 2.13. "Elective Deferral Eligible Employee" means an employee of the Company or any of its Subsidiaries selected by the Administrator as eligible for Elective Deferrals under Section 4.1 from among the group of highly compensated or managerial employees of the Company or any of its Subsidiaries. 2.14. "Eligible Employee" means an employee of the Company or any of its Subsidiaries who is a Company Credit Eligible Employee, an Elective Deferral Eligible Employee, or both. 2.15. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to any section or subsection of ERISA includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. 2.16. "Participant" means any individual who participates in the Plan in accordance with Article 3. 2.17. "Plan" means the EMC Corporation Executive Deferred Compensation Retirement Plan as set forth herein and all subsequent amendments hereto. 2.18. "Plan Year" means in the case of the first Plan Year, the period beginning January 1, 2001 and ending on December 31, 2001, and thereafter, the 12-month period ending each December 31. 2.19. "Retirement" means the voluntary retirement by a Participant from service with the Company (a) after such Participant has attained 55 years of age and five years of service with the Company or (b) after such Participant has attained twenty years of service with the Company or any of its Subsidiaries; provided, in each such case, that such Participant complies with the terms set forth in the Company's form of Key Employee Agreement (which agreement (i) shall be deemed to apply to such Participant whether or not such Participant is a party to a Key Employee Agreement and (ii) is expressly incorporated by reference herein and made a part of the Plan). 2.20. "Subsidiary" or "Subsidiaries" means a corporation or corporations in which the Company owns, directly or indirectly, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock. Article 3. PARTICIPATION 3.1. Commencement of Participation. Any individual who ------------------------------ is an Eligible Employee and who has elected to defer part of his or her Compensation for the Plan Year in accordance with Section 4.1, or who has been selected by the Company in its sole discretion to receive a Company Credit in accordance with Section 4.2, shall become a Participant on the date such election or credit is made. 3.2. Continued Participation. Subject to Section 3.3, ------------------------ an individual who has become a Participant in the Plan shall continue to be a Participant so long as any amount remains credited to his or her Account. 3.3. Termination of Participation. The Administrator ----------------------------- may terminate a Participant's participation in the Plan prospectively or retroactively for any reason, including but not limited to the Administrator's determination that such termination is necessary in order to maintain the Plan as a "plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees" within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. Upon termination of a Participant's participation in the Plan, amounts credited to a Participant's Account, if any, shall be paid to a Participant in a single lump sum cash payment. Article 4. DEFERRALS AND CREDITS 4.1. Elective Deferrals. ------------------- (a) In general. An Elective Deferral Eligible Employee may elect to defer a designated portion of his or her Compensation to be earned or payable during a Plan Year, by filing a written election with the Administrator prior to the first day of the Plan Year in which such Compensation is to be earned or by such other date as may be determined by the Administrator in its sole discretion. An individual who first becomes an Elective Deferral Eligible Employee on or after the first day of any Plan Year may elect to defer a designated portion of his or her Compensation to be earned during the Plan Year by filing a written election with the Administrator by such date as may be determined by the Administrator in its sole discretion. (b) Nature of Election. Each election under this Section 4.1 for a Plan Year (or the balance of a Plan Year) shall be made on a form prescribed or approved by the Administrator, shall be irrevocable by the Participant for the applicable Plan Year, and shall apply only to Compensation earned after the date the election form is completed and filed with the Administrator. The election form shall specify the whole percentage or flat dollar amount that is to be deferred for the applicable Plan Year. In accordance with Article 6, each Participant shall indicate on the election form when the amount that is to be deferred for the applicable Plan Year is to be paid (e.g., upon Retirement, upon a fixed distribution date pursuant to Section 6.6, or upon a Change of Control) and the method of payment (e.g., in a single lump sum payment or in a number of annual installments). The deferred amounts shall be credited to the Participant's Elective Deferral Subaccount as of the date such Compensation would otherwise have been paid to the Participant. 4.2. Company Credits. Notwithstanding any other provisions ---------------- of the Plan, the Company shall not be obligated to credit a Company Credit to the Company Credit Subaccount of a Company Credit Eligible Employee. The Company may determine from time to time, in its sole discretion, to credit a Company Credit, in an amount the Company may determine in its sole discretion, to the Company Credit Subaccount of a Company Credit Eligible Employee. Article 5. ACCOUNTS; INTEREST 5.1. Accounts. The Administrator shall establish an --------- Account for each Participant consisting of an Elective Deferral Subaccount and Company Credit Subaccount, reflecting Elective Deferrals and Company Credits, respectively, and any adjustments hereunder. As soon as reasonably practical after the end of each Plan Year, the Administrator shall provide the Participant with a statement of his or her Account. 5.2. Earnings Measurement. The Administrator shall -------------------- identify one or more funds (such as mutual funds or bank collective funds) from time to time for the purpose of measuring earnings credits to Participants' Accounts. Each Participant may specify which one or more of such funds he or she wishes to be used as a measuring vehicle for designated percentages of his or her Account, in such form and manner, and with such notice, as the Administrator may prescribe, provided that such directions may be given on a prospective basis only. Changes in Participant directions hereunder may be made by a Participant no more than once every thirty (30) days or at such other times or as frequently as the Administrator may prescribe. Each Participant's Account shall be adjusted from time to time (at least quarterly) to reflect the fair market value that would be ascribed to the Account if the amounts credited to the Account were actually invested in the funds as directed by the Participant. For purposes of Company Credits, earnings credits (if any) shall begin to accrue as of the actual date of contribution and investment by the Company of such funds into a grantor trust pursuant to Section 9.1. 5.3. Payments. Each Participant's Account shall be -------- reduced by the amount of any payment made to or on behalf of the Participant under Article 6 as of the date such payment is made. 5.4. Vesting. A Participant will at all times be 100% ------- vested in his or her Elective Deferral Subaccount. A Participant will earn an interest to be vested in his or her Company Credit Subaccount according to any vesting schedule(s) adopted by the Company in its sole discretion; provided, however, that in the event (a) that a Participant becomes totally and permanently disabled as determined in the sole discretion of the Company or (b) of a Change of Control a Participant will become 100% vested in his or her Company Credit Subaccount. 5.5 Detrimental Activity. Notwithstanding any other -------------------- provisions of the Plan, in the event that a Participant engages in "Detrimental Activity" (as defined below) at any time, the Administrator may in its sole discretion (i) direct the Company to pay the balance of the Participant's Account in the form of a single lump sum cash payment; and (ii) cancel, rescind, suspend or otherwise limit or restrict at any time all amounts, if any, credited to such Participant's Company Credit subaccount, whether or not fully vested. Furthermore, in the event that a Participant engages in Detrimental Activity at any time during the twelve (12) months after the termination of his or her employment with the Company or any of its Subsidiaries for any reason, the Company may require such Participant at any time until the later of (A) two years after such Participant's termination of employment for any reason or (B) two years after such Participant engaged in Detrimental Activity to pay to the Company (1) an amount equal to any distributions previously made by the Company to such Participant from such Participant's Company Credit Account and (2), if the Company commences an action against such Participant (by way of a claim or counterclaim and including declaratory claims), in which it is preliminarily or finally determined that such Participant engaged in Detrimental Activity, an amount equal to the Company's costs and fees incurred in such action, including but not limited to, the Company's reasonable attorneys' fees and expenses. The Company shall be entitled to set off any such amount owed to the Company against any amounts owed to such Participant by the Company, including without limitation, any amounts to be distributed from such Participant's Elective Deferral Subaccount. For this purpose "Detrimental Activity" means, in the Company's sole determination, that the Participant has, directly or indirectly, (a) become associated in any capacity with any enterprise that is, or may be deemed to be, in competition with any business of the Company or any of its Subsidiaries, (b) solicited, induced or attempted to induce, in any enterprise that is competitive with the Company or any of its Subsidiaries, any customers or employees of the Company to curtail or discontinue their relationship with the Company or any of its Subsidiaries, (c) disclosed, communicated or misused, to the detriment of the Company or any of its Subsidiaries, any confidential or proprietary information relating to the Company or any of its Subsidiaries to any person or entity not associated with the Company or any of its Subsidiaries, (d) failed to comply with the terms of the Plan, (e) failed to comply with any term set forth in the Company's Key Employee Agreement (irrespective of whether the Participant is a party to the Key Employee Agreement), (f) engaged in any activity that results in termination of the Participant's employment for cause, (g) violated any rule, policy, procedure or guideline of the Company or any of its Subsidiaries, or (h) been convicted of, or has entered a guilty plea with respect to, a crime whether or not connected with the Company or any of its Subsidiaries. Article 6. - PAYMENTS 6.1 Payment Upon Retirement. In the event a Participant's ----------------------- employment with the Company or any of its Subsidiaries is terminated due to the Participant's Retirement, then as soon as administratively practicable thereafter, payments will be made to the Participant as follows: (a) With respect to the Participant's Elective Deferral Subaccount, unless the Participant elects an alternative form of payment as described in Section 6.1(c) at least 13 months prior to Retirement, payments to be made upon Retirement will be made in a single lump sum cash payment. (b) With respect to the vested portion, if any, of the Participant's Company Credit Subaccount, unless the Participant elects an alternative form of payment as described in Section 6.1(c) at least 13 months prior to Retirement, payments to be made upon Retirement will be made in a single lump sum cash payment. The unvested portion, if any, of the Participant's Company Credit Subaccount shall be forfeited automatically upon Retirement. (c) A Participant may elect, at least 13 months prior to the Participant's Retirement, to receive the balance to the credit of the Participant's Account in payments of five, ten or fifteen annual cash installments. The first installment shall be made as soon as administratively practicable following Retirement and succeeding installments shall be made on the next four anniversaries of the date of Retirement (for a total of five installments), on the next nine anniversaries of the date of Retirement (for a total of ten installments), or on the next fourteen anniversaries of the date of Retirement (for a total of fifteen installments). The amount of each installment shall be determined by dividing the Participant's applicable Account balance (adjusted through the day before the installment is paid) by the number of installments remaining. Any election made under this Section 6.1(c) shall be made in writing on a form prescribed or approved by the Administrator, and may be revoked in writing on a form prescribed or approved by the Administrator at any time if such revocation is made at least 13 months prior to the Participant's Retirement. Notwithstanding the foregoing, the Administrator may, in its sole discretion, at any time after the Participant's Retirement, direct the Company to pay the balance to the credit of the Participant's Account in the form of a single lump sum cash payment. 6.2 Payment Upon Termination of Employment Due to Disability. -------------------------------------------------------- In the event, a Participant's employment with the Company or any of its Subsidiaries is terminated due to the Participant's disability as determined by the Administrator in its sole discretion ("Disability"), then as soon as administratively practicable thereafter, payments will be made to the Participant as follows: (a) With respect to the Participant's Elective Deferral Subaccount, payments will made at the same time and in the same manner as if the Participant's employment had terminated due to his or her Retirement. (b) With respect to the vested portion (after any acceleration of vesting pursuant to Section 5.4, if applicable), if any, of the Participant's Company Credit Subaccount, payments will made at the same time and in the same manner as if the Participant's employment had terminated due to his or her Retirement. The unvested portion, if any, of the Participant's Company Credit Subaccount shall be forfeited automatically upon termination of the Participant's employment with the Company of any of its Subsidiaries due to Disability. Notwithstanding the foregoing, the Administrator may, in its sole discretion, at any time after the termination of the Participant's employment with the Company or any of its Subsidiaries due to Disability, direct the Company to pay the balance to the credit of the Participant's Account in the form of a single lump sum cash payment. 6.3 Payment Upon Termination of Employment Due to Death. --------------------------------------------------- In the event a Participant's employment with the Company or any of its Subsidiaries is terminated due to the Participant's death, then as soon as administratively practicable thereafter, payments will be made to the Participant's beneficiary or estate, in accordance with Section 6.3(c), as follows: (a) With respect to the Participant's Elective Deferral Subaccount, payments will made at the same time and in the same manner as if the Participant's employment had terminated due to his or her Retirement. (b) With respect to the vested portion of the Participant's Company Credit Subaccount, payments, if any, will made at the same time and in the same manner as if the Participant's employment had terminated due to his or her Retirement. The unvested portion of the Participant's Company Credit Subaccount shall be forfeited automatically upon termination of the Participant's employment with the Company of any of its Subsidiaries due to death. (c) A Participant shall designate his or her beneficiary or beneficiaries who, in the event of the Participant's death, shall be entitled to receive the balance to the credit of the Participant's Account. Such designation shall be made in writing on a form prescribed or approved by the Administrator, and may be revoked in writing on a form prescribed or approved by the Administrator at any time prior to the Participant's death. If a Participant fails to designate a beneficiary or no designated beneficiary survives the Participant, then payments hereunder shall be made to the Participant's estate. Notwithstanding the foregoing, the Administrator may, in its sole discretion, at any time after the Participant's death, direct the Company to pay the balance to the credit of the Participant's Account to the Participant's beneficiary or estate, as the case may be, in the form of a single lump sum cash payment. 6.4 Payment Upon Termination of Employment for any Other Reason. ----------------------------------------------------------- In the event a Participant's employment with the Company or any of its Subsidiaries is terminated for any reason other than Retirement, Disability or death, then as soon as administratively practicable thereafter, payments will be made to the Participant as follows: (a) With respect to the Participant's Elective Deferral Subaccount, payment will be made in a single lump sum cash payment. (b) With respect to the vested portion, if any, of the Participant's Company Credit Subaccount, payment will be made in a single lump sum cash payment. The unvested portion of the Participant's Company Credit Subaccount shall be forfeited automatically upon the termination of the Participant's employment with the Company or any of its Subsidiaries for any reason other than Retirement, Disability or death. 6.5 Severe Financial Hardship Distribution. At any time, a -------------------------------------- Participant who believes he or she is suffering a severe financial hardship may apply to the Administrator for a distribution under the Plan in order to alleviate such hardship. The Administrator, in its sole discretion (but after taking into account, among other factors, the nature and foreseeability of the alleged hardship, the Participant's other resources, and the effect of making a distribution on the intended tax status of the deferrals made under the Plan), may direct the Company to pay to the Participant an amount which it determines is necessary or appropriate, not to exceed the Participant's Elective Deferral Subaccount balance, if any, and the Company shall pay such amount to the Participant in a single lump sum cash distribution. 6.6 In-Service Distribution. In connection with his or her ----------------------- election to defer Compensation pursuant to Section 4.1, a Participant may specify a fixed distribution date for the commencement of payment of his or her Elective Deferral Subaccount which may be prior to termination of employment, which shall be payable in a single lump sum cash distribution or in five annual cash installments commencing on the fixed distribution date; provided, however, that such fixed distribution date shall not be earlier than the third anniversary of the last day of the Plan Year in which such Compensation was deferred. Such distribution dates may be extended to later dates so long as elections to extend are made at least 13 months prior to the fixed distribution date. If such distribution is to be paid in five annual installments, then the first installment shall be made on the fixed distribution date and succeeding installments shall be made on the next four anniversaries of the fixed distribution date (for a total of five installments). The amount of each installment shall be determined by dividing the Participant's applicable Account balance (adjusted through the day before the installment is paid) by the number of installments remaining. Any election made under this Section 6.6 shall be made in writing on a form prescribed or approved by the Administrator and may be revoked in writing on a form prescribed or approved by the Administrator at any time if such revocation is made at least 13 months prior to the fixed distribution date. In the event the Participant's employment with the Company or any of its Subsidiaries is terminated prior to the fixed distribution date, then no payments shall be made pursuant to this Section 6.6 and, instead, the balance to the credit of the Participant's Elective Deferral Subaccount shall be paid based on the Participant's termination of employment by reason of Retirement, Disability, death or otherwise, as the case may be. In the event the Participant's employment with the Company or any of its Subsidiaries is terminated by reason of Retirement, Disability or death after the fixed distribution date has occurred and the Participant had elected to receive such distribution under this Section 6.6 in five annual cash installments, then payments shall be made at the same time and in the same manner as elected by the Participant under this Section 6.6. In the event the Participant's employment with the Company or any of its Subsidiaries is terminated for any reason other than Retirement, Disability or death after the fixed distribution date has occurred and the Participant had elected to receive such distribution under this Section 6.6 in five annual cash installments, then notwithstanding such election, the remaining portion of the distribution shall be made in a single lump sum cash payment to the Participant as soon as administratively practicable after the Participant's employment with the Company or any of its Subsidiaries is terminated for any reason other than Retirement, Disability or death. Notwithstanding the foregoing, the Administrator may, in its sole discretion, at any time after the termination of the Participant's employment for any reason, direct the Company to pay the balance to the credit of the Participant's Account in the form of a single lump sum cash payment. 6.7 Immediate Distribution. At any time, a ---------------------- Participant may elect to have all or any portion of the balance to the credit of the Participant's Elective Deferral Subaccount distributed in a single lump sum cash distribution. Such distribution shall be made as soon as administratively practicable following the Administrator's receipt of the Participant's election. Any election made under this Section 6.7 shall be made in writing on a form prescribed or approved by the Administrator. The actual amount to be distributed to the Participant hereunder shall equal ninety percent (90%) of the elected distribution amount and the remaining ten percent (10%) of the elected distribution amount shall be forfeited to the Company. The Participant shall not be eligible to make any elective deferrals into the Plan at any time during the twelve month period immediately following the date of such distribution. 6.8 Payment Upon a Change of Control. In connection with -------------------------------- his or her election to defer Compensation pursuant to Section 4.1, a Participant may elect to receive the balance to the credit of the Participant's Account in a single lump sum cash payment upon a Change of Control. Any election made under this Section 6.8 shall be made in writing on a form prescribed or approved by the Administrator and may be revoked in writing on a form prescribed or approved by the Administrator at any time if such revocation is made at least 13 months prior to the Change of Control. Article 7. ADMINISTRATOR 7.1. Plan Administration and Interpretation. The Administrator -------------------------------------- shall oversee the administration of the Plan. The Administrator shall have complete discretionary control and authority to administer all aspects of the Plan and to determine the rights and benefits and all claims, demands and actions arising out of the provisions of the Plan of any Participant, beneficiary, deceased Participant, or any other person having or claiming to have any interest under the Plan. The Administrator shall have the exclusive discretionary power to interpret the Plan and to decide all matters under the Plan. The Administrator also shall have the exclusive discretionary power to adopt, amend and rescind rules and guidelines for the administration of the Plan and for its own acts and proceedings. Such interpretation and decision shall be final, conclusive and binding on all Participants and any person claiming under or through any Participant, in the absence of clear and convincing evidence that the Administrator acted arbitrarily and capriciously. Any individual serving as Administrator, or on a committee acting as Administrator, who is a Participant, shall not vote or act on any matter relating solely to himself or herself. When making a determination or calculation, the Administrator shall be entitled to conclusively rely on information furnished by a Participant, a beneficiary, or any other person or entity. The Administrator shall be deemed to be the Plan administrator with responsibility for complying with any reporting and disclosure requirements of ERISA. The Administrator may employ such counsel, agents and advisers, and obtain such administrative, clerical and other services, as it may deem necessary or appropriate in carrying out the provisions of the Plan and its duties hereunder. 7.2. Claims Procedure. ---------------- (a) In general. If any person believes he or she has been denied any rights or benefits under the Plan, such person may file a claim in writing with the Administrator. If any such claim is wholly or partially denied, the Administrator will notify such person of its decision in writing. Such notification will be given within 90 days after the claim is received by the Administrator (or within 180 days, if special circumstances require an extension of time for processing the claim, and if written notice of such extension and circumstances is given to such person within the initial 90 day period). Notwithstanding the foregoing, if such notification is not given within such 90 or 180 day period, the claim will be considered denied as of the last day of such period and such person may request a review of his or her claim in accordance with Section 7.2(b). (b) Appeals. Within 60 days after the date on which a person receives a written notice of a denied claim (or, if applicable, within 60 days after the date on which such denial is considered to have occurred) such person (or his or her duly authorized representative) may file a written request with the Administrator for a review of his or her denied claim. The Administrator will notify such person of its decision on review in writing. The decision on review will be made within 60 days after the request for review is received by the Administrator (or within 120 days, if special circumstances require an extension of time for processing the request, such as an election by the Administrator to hold a hearing, and if written notice of such extension and circumstances is given to such person within the initial 60 day period). Notwithstanding the foregoing, if the decision on review is not made within such 60 or 120 day period, the claim will be considered denied. The Administrator may, in its sole discretion amend or revise this Section 7.2, provided, that the claims procedure for the Plan pursuant to which persons may claim an interest in the Plan and appeal denials of such claims, as amended or changed, shall meet the minimum standards of Section 503 of ERISA. 7.3. Indemnification of Administrator. The Company -------------------------------- shall indemnify and defend to the fullest extent permitted by law any director, officer or employee of the Company or its Subsidiaries who serves as the Administrator or as a member of a committee appointed to serve as Administrator, or who assists the Administrator in carrying out its duties (including any such individual who formerly served in any such capacity) against any and all liabilities, damages, costs and expenses (including attorneys' fees and amounts paid in settlement of any claims approved in writing by the Company) arising out of or relating to any act or omission to act in connection with the Plan, if such act or omission is in good faith. Article 8. AMENDMENT, TERMINATION AND ASSIGNMENT 8.1. Amendments. Prior to a Change of Control, the ---------- Company shall have the right to amend the Plan from time to time, subject to Section 8.3, by an instrument in writing which has been executed on its behalf by the Administrator or by vote of the Board. No amendment to the Plan with respect to any Participant may be made after a Change of Control without the written consent of such Participant (or beneficiary, if applicable). 8.2. Termination of Plan. The Company currently ------------------- intends to continue the Plan indefinitely. However, the Plan is voluntary on the part of the Company and the Company expressly reserves the right to terminate the Plan at any time, subject to Section 8.3, for any reason whatsoever. Subject to Section 8.1, the Company from time to time may, by amendment to the Plan, suspend the Plan or discontinue provisions thereof. The Company may terminate the Plan at any time by an instrument in writing which has been executed on its behalf by the Administrator or by vote of the Board. 8.3. Existing Rights. No amendment or termination of the Plan --------------- shall adversely affect the rights of any Participant with respect to amounts credited to his or her Account as of the date of such amendment or termination (subject to future adjustments as a result of investment measurements). 8.4. Assignment. The rights and obligations of the ---------- Company shall inure to the benefit of and shall be binding upon its successors and assigns. Article 9. - MISCELLANEOUS 9.1. Grantor Trust. The Company may establish a trust ------------- of which the Company is treated as the owner under Subpart E of Subchapter J, Chapter 1 of the Code (a "grantor trust"), and may deposit with the trustee of the grantor trust an amount of cash or marketable securities sufficient to cause the fair market value of the assets held in the grantor trust to be not less than the sum of the Account balances under the Plan. Notwithstanding the foregoing, nothing in this Plan will be construed to create a trust or to obligate the Company, any of its Subsidiaries or any other person or entity to segregate a fund, purchase an insurance contract, or in any other way currently to fund the future payment of any distributions or payments hereunder, nor will anything herein be construed to give any employee or any other person any right to any specific assets of the Company, any of its Subsidiaries or of any other person or entity. Any distributions or payments which become payable hereunder that are not paid out of the grantor trust shall be paid from the general assets of the Company. 9.2. Nature of Claim for Payment. Each Participant and --------------------------- beneficiary will be an unsecured general creditor of the Company with respect to any distributions or payments to be made under the Plan. Nothing in the Plan will be construed to give any person any right to any specific assets of the Company, any of its Subsidiaries or any other person or entity. 9.3. Nonalienation of Benefits. No Participant, ------------------------- beneficiary or any other person having any interest under the Plan shall alienate, anticipate, commute, pledge, encumber, assign or otherwise transfer ("Alienate") any right or interest under the Plan, including, without limitation, with respect to rights to or interests in any payments, distributions, claims or other benefits which he or she may expect to receive, contingently or otherwise, under this Plan ("Rights"). Any attempt to Alienate any Right shall be ineffective. No Right shall be subject to any claim of, subject to attachment, execution, garnishment or other legal process by, any creditor of such Participant, beneficiary or other person. 9.4. Employment Rights. Neither the adoption or the ----------------- establishment and maintenance of the Plan, the participation in the Plan nor any action of the Company, any Subsidiary or the Administrator, shall be held or construed to confer upon any employee of the Company or any of its Subsidiaries any right to continued employment with the Company or any of its Subsidiaries, as the case may be, nor does it interfere in any way with the right of the Company or any of its Subsidiaries to terminate the employment of any of its employees at any time. Each of the Company and its Subsidiaries expressly reserves the right to terminate or discharge any of its employees at any time. 9.5. Receipt and Release. Any payment or distribution ------------------- to any Participant or beneficiary in accordance with the provisions of the Plan shall be, to the extent thereof, in full satisfaction of all claims against the Company, its Subsidiaries and the Administrator under the Plan, and the Administrator may require such Participant or beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect. If any Participant or beneficiary is determined by the Administrator to be incompetent by reason of physical or mental disability (including minority) to give a valid receipt and release, the Administrator may cause the payment or payments becoming due to such person to be made to another person for his or her benefit without responsibility on the part of the Administrator or the Company to follow the application of such funds. 9.6. Severability of Provision. If any provision of ------------------------- the Plan shall be held by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Plan shall be construed and enforced to the fullest extent possible as if such provision had not been included. 9.7. Government Regulations. It is intended that the ---------------------- Plan comply with all applicable laws and government regulations. Neither the Company, any of its Subsidiaries, nor the Administrator shall not be obligated to perform any obligation hereunder in any case where, in the opinion of the Company's counsel, such performance would result in the violation of any law or regulation. 9.8. Governing Law; Jurisdiction. This Plan shall be --------------------------- construed, administered, and governed in all respects under and by the laws of The Commonwealth of Massachusetts without regard to the conflict of law provisions thereof. The Company, the Administrator, the Participants and their beneficiaries, and any persons having or claiming to have any interest under the Plan submit to the exclusive jurisdiction and venue of the federal or state courts of The Commonwealth of Massachusetts, County of Middlesex, to resolve any and all issues that may arise out of or relate to the Plan or the same subject matter. 9.9 Headings and Subheadings. Headings and subheadings in ------------------------ this Plan are inserted for convenience only and are not to be considered in the construction of the provisions hereof. 9.10 Expenses and Taxes. Expenses, including fees and expenses ------------------ associated with the grantor trust, associated with the administration or operation of the Plan shall be paid by the Company from its general assets unless, in the sole discretion of the Administrator, the Administrator elects to charge such expenses against the appropriate Participant's Account or Participants' Accounts. Any taxes allocable to an Account (or subaccount or portion thereof) maintained under the Plan which are payable prior to the distribution of the Account (or subaccount or portion thereof), as determined by the Administrator in its sole discretion, shall be charged against the appropriate Participant's Account or Participants' Accounts. IN WITNESS WHEREOF, the Company has caused the Plan to be executed by its duly authorized officer this 1st day of January, 2001. EMC CORPORATION By: ____________________________ Name: Richard J. Egan Title: Chairman of the Board EX-5.1 3 0003.txt Exhibit 5.1 [EMC Corporation Letterhead] December 20, 2000 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"), $20,000,000 of deferred compensation obligations of the Company (the "Obligations") under the EMC Corporation Executive Deferred Compensation Retirement Plan (the "Plan"). 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 Company's Restated Articles of Organization; (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 (iv) 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 opinion set forth herein. In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such copies. As to any facts material to the opinion expressed herein which I have not independently established or verified, I have relied upon statements and representations of other officers and representatives of the Company and others. I am admitted to the Bar of The 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 when issued by the Company in the manner provided in the Plan, the Obligations will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws now or hereinafter in effect and general principles of equity, regardless of whether applied in a proceeding in equity or at law. 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 Obligations while the Registration Statement is in effect. Very truly yours, /s/ Paul T. Dacier Paul T. Dacier Senior Vice President and General Counsel EX-23.1 4 0004.txt 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 schedules, which appears in EMC Corporation's Annual Report on Form 10-K for the year ended December 31, 1999. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Boston, Massachusetts December 20, 2000 -----END PRIVACY-ENHANCED MESSAGE-----