-----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, PEwTsa6oTfkX0HMOopD88rZSh7dJ8eME6wD4HOcOCbr/FXYZMhh8ocfHhv/3oVPR 8rld801uWLYPnR/0NuK8uQ== 0000912057-02-038829.txt : 20021016 0000912057-02-038829.hdr.sgml : 20021016 20021016172014 ACCESSION NUMBER: 0000912057-02-038829 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021016 EFFECTIVENESS DATE: 20021016 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: 1933 Act SEC FILE NUMBER: 333-100584 FILM NUMBER: 02790817 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 a2091228zs-8.txt FORM S-8 As filed with the Securities and Exchange Commission on October 16, 2002 REGISTRATION NO. 333-____________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EMC CORPORATION - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) Massachusetts - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation or Organization) 04-2680009 - -------------------------------------------------------------------------------- (I.R.S. Employer Identification Number) 176 South Street, Hopkinton, Massachusetts 01748 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) EMC Corporation 2001 Stock Option Plan Stock Option Agreement - -------------------------------------------------------------------------------- (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
- ------------------------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Amount of Amount to be Offering Price Per Maximum Aggregate Registration Title of Securities to be Registered (1) Share (2) Offering Price (3) Fee (3) Registered - ------------------------------------------------------------------------------------------------------------------------------- EMC Corporation 2001 Stock Option Plan 80,000,000 $3.97 $317,600,000 $29,219.20 Common Stock, par value $.01 per share - ------------------------------------------------------------------------------------------------------------------------------- Stock Option Agreement 10,000 $3.97 $ 39,700 $ 3.65 Common Stock, par value $.01 per share - -------------------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement covers (a) 80,000,000 shares of the Registrant's common stock, par value $.01 per share (the "Common Stock"), that may be issued upon exercise of options granted under the EMC Corporation 2001 Stock Option Plan (the "2001 Plan") and (b) 10,000 shares of Common Stock that may be issued upon exercise of a non-qualified stock option granted pursuant to a stock option agreement between the Registrant and the Clerk of the Registrant (the "Stock Option Agreement"). Also registered hereunder is such additional number of shares of Common Stock, presently indeterminable, as may be necessary to satisfy the antidilution provisions of each of the 2001 Plan and the Stock Option Agreement to which this Registration Statement relates. (2) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low sale prices of the Common Stock on the New York Stock Exchange on October 9, 2002. (3) Estimated in accordance with Rule 457(h)(1) under the Securities Act of 1933, as amended, solely for the purpose of determining the registration fee. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. EMC Corporation (the "Registrant") hereby incorporates by reference the following documents filed with the Securities and Exchange Commission (the "Commission"): (a) the Registrant's Annual Report on Form 10-K for the fiscal year ending December 31, 2001; (b) the Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002 and June 30, 2002 and any amendments thereto; (c) the Registrant's Current Report on Form 8-K filed with the Commission on August 13, 2002; and (d) the description of the Registrant's common stock (the "Common Stock") which is contained in the Registrant's Registration Statement on Form 8-A filed by the Registrant under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on March 4, 1988, including any amendments or reports filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold under this Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superceded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supercedes such earlier statement. Any statement so modified or superceded shall not be deemed, except as so modified or superceded, to constitute part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the shares of Common Stock being registered pursuant to this Registration Statement will be passed upon for the Registrant by Paul T. Dacier, Senior Vice President and General Counsel of the Registrant. As of September 30, 2002, Mr. Dacier was the beneficial owner (for purposes of the Exchange Act) of 360,188 shares of Common Stock and is eligible to participate in the Registrant's stock option and stock purchase plans. 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, any person who serves at its request as a director, officer, employee or other agent of another organization, or any person who serves at its request in any capacity with respect to any employee benefit plan, 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, as amended, 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 interests 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 2001 Stock Option Plan, as amended to date. Incorporated by reference from the Registrant's Quarterly Report on Form 10-Q for the period ended June 30, 2002 filed with the Commission on July 30, 2002. 4.2 Form of Stock Option Agreement. 5.1 Opinion of Paul T. Dacier, Senior Vice President and General Counsel of 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 of EMC Corporation (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). 24.1 Power of Attorney (included on the signature pages to this Registration Statement). ITEM 9. UNDERTAKINGS The undersigned Registrant hereby undertakes: (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 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; (2) 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; (3) 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; (4) 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 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 October 16, 2002. 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 hereby severally constitutes and appoints Joseph M. Tucci, 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 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.
SIGNATURES TITLE DATE ---------- ----- ---- /s/ Michael C. Ruettgers Executive Chairman of the Board October 16, 2002 - --------------------------------------- of Directors MICHAEL C. RUETTGERS /s/ Joseph M. Tucci Chief Executive Officer, October 16, 2002 - --------------------------------------- President and Director (PRINCIPAL JOSEPH M. TUCCI EXECUTIVE OFFICER) /s/ William J. Teuber, Jr. Executive Vice President and October 16, 2002 - --------------------------------------- Chief Financial Officer WILLIAM J. TEUBER, JR. (PRINCIPAL FINANCIAL OFFICER) /s/ Mark A. Link Vice President and Chief October 16, 2002 - --------------------------------------- Accounting Officer MARK A. LINK (PRINCIPAL ACCOUNTING OFFICER) /s/ Michael J. Cronin - --------------------------------------- Director October 16, 2002 MICHAEL J. CRONIN /s/ Gail Deegan - --------------------------------------- Director October 16, 2002 GAIL DEEGAN
[SIGNATURE PAGE TO REGISTRATION STATEMENT ON FORM S-8]
SIGNATURES TITLE DATE ---------- ----- ---- /s/ John R. Egan - --------------------------------------- Director October 16, 2002 JOHN R. EGAN /s/ W. Paul Fitzgerald - --------------------------------------- Director October 16, 2002 W. PAUL FITZGERALD /s/ Windle B. Priem - --------------------------------------- Director October 16, 2002 WINDLE B. PRIEM - --------------------------------------- Director October __, 2002 ALFRED M. ZEIEN
[SIGNATURE PAGE TO REGISTRATION STATEMENT ON FORM S-8] EXHIBIT INDEX 4.1 EMC Corporation 2001 Stock Option Plan, as amended to date. Incorporated by reference from the Registrant's Quarterly Report on Form 10-Q for the period ended June 30, 2002 filed with the Commission on July 30, 2002. 4.2 Form of Stock Option Agreement. 5.1 Opinion of Paul T. Dacier, Senior Vice President and General Counsel of 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 of EMC Corporation (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). 24.1 Power of Attorney (included on the signature pages to this Registration Statement). EX-4.2 3 a2091228zex-4_2.txt EXHIBIT 4.2 Exhibit 4.2 EMC CORPORATION STOCK OPTION AGREEMENT NON-QUALIFIED STOCK OPTION AGREEMENT entered into as of the ___ day of ______, _____ by and between EMC Corporation, a Massachusetts corporation (the "Company"), and the undersigned individual (the "Optionee"). WHEREAS, the Company desires to grant the Optionee a non-qualified stock option to acquire shares of the Company's common stock, $.01 par value per share (the "Common Stock"); and WHEREAS, the Optionee desires to accept such option subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the Company and the Optionee, intending to be legally bound, hereby agree as follows: 1. GRANT OF OPTION. The Company hereby grants to the Optionee a non-qualified stock option (the "Option") to purchase all (or any part) of _______ shares of Common Stock (the "Shares") on the terms and conditions hereinafter set forth. This option shall not be treated as an incentive stock option under Section 422A of the Internal Revenue Code of 1986, as amended. 2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Shares covered by the Option shall be the closing price of a share of Common Stock on _________, or $_____ per share. 3. VESTING AND EXERCISABILITY. On or after the first anniversary of the date hereof, twenty percent (20%) of the Shares subject to the Option shall vest and be exercisable, and on or after each of the next four successive anniversaries of the date hereof, an additional twenty percent (20%) of the Shares shall vest and be exercisable. 4. TERM OF OPTION. (a) This Option shall expire not later than ten (10) years from the date hereof; PROVIDED, HOWEVER, that if the Optionee ceases to serve as Clerk of the Company for any reason, whether voluntary or involuntary (including death), this Option shall terminate on the date such service terminates with respect to any Shares subject to options which are vested or unvested on such date. 5. MANNER OF EXERCISE OF OPTION. (a) To the extent that the right to purchase shares under the Option has vested and is in effect in accordance with the terms hereof, the number of available Shares may be purchased in full (or in part) by giving written notice to the Company stating the number of Shares purchased and accompanied by payment in full for such Shares. Payment shall be either in cash or by a certified or cashier's check or money order payable to the Company. (b) The Company shall at all times during the term of the Option reserve and keep available such number of shares of its Common Stock as will be sufficient to satisfy the requirements of the Option. (c) Notwithstanding the provision of Section 5(a) of this Agreement, the Company may delay the issuance of Shares covered by the vesting of this Option and the delivery of a certificate for such Shares until one of the following conditions shall be satisfied: (i) The Shares purchased pursuant to a vested Option are at the time of the issuance of such Shares effectively registered or qualified under applicable federal and state securities laws now in effect or as hereafter amended; or (ii) Counsel for the Company shall have given an opinion that such Shares are exempt from registration and qualification under applicable federal and state securities laws now in effect or as hereafter amended. (iii) The Company shall use its best efforts to promptly meet the conditions under items (i) and (ii) above. 6. CHANGES IN STOCK. In the event of a stock dividend, stock split or other change in corporate structure or capitalization affecting the Common Stock, the Board of Directors or the Compensation Committee (the "Committee") shall make appropriate adjustments in the number and kind of shares of stock remaining subject to this Option outstanding at the time of such change and the Purchase Price. Subject to any required action by the stockholders, if the Company shall be the surviving corporation in any merger or consolidation (other than a merger or consolidation in which the Company survives but in which a majority of its outstanding shares are converted into securities of another corporation or are exchanged for other consideration), this Option shall pertain and apply to the securities which a holder of the number of shares of stock of the Company then subject to this Option would have been entitled to receive, but a dissolution or liquidation of the Company or a merger or consolidation in which the Company is not the surviving corporation or in which a majority of its outstanding shares are so converted or exchanged shall cause this Option to terminate; provided that if any such dissolution, liquidation, merger or consolidation is contemplated, the Company shall either arrange for any corporation succeeding to the business and assets of the Company to issue to the Optionee replacement options on such corporation's stock which will to the extent possible preserve the value of the outstanding Option or shall make the outstanding Option fully exercisable at least 20 days before the effective date of any such dissolution, liquidation, merger or consolidation. The existence of this Agreement shall not prevent any such change or other transaction and the Optionee shall not have any right except as herein expressly set forth. 7. NO SPECIAL RIGHTS. Nothing contained in this Agreement shall be construed or deemed by any person under any circumstances to bind the Company or any of its subsidiaries to continue the service of the Optionee as Clerk of the Company for the period during which this Option may vest. 8. RIGHTS AS A SHAREHOLDER. The Optionee shall not have any of the rights of a shareholder of the Company in respect of the Shares until one or more certificates for such Shares shall be delivered to the Optionee upon the purchase of Shares pursuant to a vested Option in accordance with this Agreement. Except as otherwise expressly provided herein, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. 9. NOTICE OF DISPOSITION. Participant shall notify the Company when he makes any disposition of the Shares acquired upon exercise of this Option, whether by sale, gift or otherwise. 10. APPLICATION OF STOCK TRANSFER AGREEMENT. If at the time when this Option is exercised, the Company is a party to any agreement restricting the transfer of any outstanding shares of its Common Stock, this Option may be exercised only if the Shares so acquired are made subject to the transfer restrictions set forth in that agreement (or if more than one such agreement is then in effect), the agreement specified by the Board of Directors or the Committee. 11. TAX EFFECTS OF EXERCISE OF OPTION. At the time of exercise of any part of this Option, Optionee or his legal representative will be liable for federal and state taxes for the gain between the exercise price of the Shares and the then current fair market value of such shares. The Company has no liability or responsibility to withhold any amounts to cover this federal or state tax liability. 12. NON-TRANSFERABILITY OF OPTION. This Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution, and is exercisable during the Participant's lifetime only by the Participant. 13. CANCELLATION AND RESCISSION OF OPTION. The Committee or the Board of Directors may cancel, rescind, suspend or otherwise limit or restrict this Option at any time if the Optionee engages in "Detrimental Activity" (as defined below). Furthermore, in the event Optionee engages in Detrimental Activity at any time prior to or during the six months after any exercise of this Option (or portion hereof), such exercise may be rescinded until the later of (i) two years after such exercise or (ii) two years after such Detrimental Activity. Upon such rescission, the Company at its sole option may require the Optionee to (i) deliver and transfer to the Company the shares of Common Stock received by the Optionee upon such exercise, (ii) pay to the Company an amount equal to any realized gain received by the Optionee from such exercise, or (iii) pay to the Company an amount equal to the market price (as of the exercise date) of the Common Stock acquired upon such exercise minus the respective exercise price. The Company shall be entitled to set-off any such amount owed to the Company against any amount owed to the Optionee by the Company. As used in this Section 13, "Detrimental Activity" shall include: (i) the failure to comply with the terms of this Agreement; (ii) the failure to comply with any term set forth in the Key Employee Agreement (irrespective of whether the Optionee is a party to the Key Employee Agreement); (iii) any activity that results in removal of the Optionee for cause; (iv) a violation of any rule, policy, procedure or guideline of the Company; (v) the Optionee being convicted of, or entering a guilty plea with respect to a crime whether or not connected with the Company; or (vi) any other conduct or act determined to be injurious, detrimental or prejudicial to any interest of the Company. [Remainder of Page Intentionally Left Blank] EMC CORPORATION STOCK OPTION AGREEMENT COUNTERPART SIGNATURE PAGE IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and its corporate seal to be hereto affixed by its officer thereunto duly authorized, and the Optionee has hereunto set his hand and seal, all as of the day and year first above written. EMC CORPORATION OPTIONEE By: ---------------------------------- ---------------------------------- NAME: (SIGNATURE) TITLE: ---------------------------------- (PRINT NAME) ---------------------------------- (print address) EX-5.1 4 a2091228zex-5_1.txt EXHIBIT 5.1 Exhibit 5.1 [EMC Corporation Letterhead] October 16, 2002 EMC Corporation 176 South Street Hopkinton, MA 01748 Ladies and Gentlemen: I am Senior Vice President and General Counsel of EMC Corporation, a Massachusetts corporation (the "Company"), and am issuing this opinion in connection with the registration statement on Form S-8 (the "Registration Statement") being filed by the Company with the Securities and Exchange Commission (the "Commission") on the date hereof for the purpose of registering under the Securities Act of 1933, as amended (the "Securities Act"), 80,010,000 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 EMC Corporation 2001 Stock Option Plan (the "2001 Plan") and pursuant to the exercise of the non-qualified stock option granted under the Stock Option Agreement between the Company and the Clerk of the Company ("the Stock Option Agreement"). 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, as amended; (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 the Shares have been duly authorized for issuance and, when issued and sold by the Company pursuant to and in accordance with the 2001 Plan or the Stock Option Agreement, as the case may be, 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 of 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 the Shares 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 5 a2091228zex-23_1.txt EXHIBIT 23.1 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 23, 2002, 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, 2001. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Boston, Massachusetts October 15, 2002 -----END PRIVACY-ENHANCED MESSAGE-----