-----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, EvYXCNTJzZHMqXvrsP56iZEhfGFm64+qX+sEFUmpK2mMPIHKuJJT5gPhT35mKpNl BmnfuSPixtRoSbr0kKfXRw== 0000927356-96-000091.txt : 19960304 0000927356-96-000091.hdr.sgml : 19960304 ACCESSION NUMBER: 0000927356-96-000091 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960301 EFFECTIVENESS DATE: 19960320 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMC CORP CENTRAL INDEX KEY: 0000790070 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 042680009 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-01375 FILM NUMBER: 96530159 BUSINESS ADDRESS: STREET 1: 171 SOUTH STREET CITY: HOPKINTON STATE: MA ZIP: 01748-9103 BUSINESS PHONE: 5084351000 MAIL ADDRESS: STREET 1: 171 SOUTH STREET CITY: HOPKINTON STATE: MA ZIP: 01748-9103 S-8 1 FORM S-8 Registration No. 33-_________ As filed with the Securities and Exchange Commission on March 1, 1996. 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 04-2680009 (State or other juris- (I.R.S. Employer diction of incorporation Identification No.) or organization) 171 South Street Hopkinton, Massachusetts 01748 (Address, including zip code of Principal Executive Offices) McDATA CORPORATION 1990 CLASS A STOCK OPTION PLAN McDATA CORPORATION 1990 CLASS B STOCK OPTION PLAN (Full Title of the Plans) Paul T. Dacier Vice President and General Counsel EMC Corporation 171 South Street Hopkinton, Massachusetts 01748 (508) 435-1000 (Name, address and telephone number, including area code, of agent for service) ________________________________________ CALCULATION OF REGISTRATION FEE
=============================================================================================================== Title of each class of Proposed maximum Proposed maximum Amount of securities to be Amount to be offering price per aggregate offering registration registered registered share(1) price fee - --------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value per share 493,400 shares $11.42 $5,634,628.00 $1,942.98 ===============================================================================================================
(1) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h)(1) based upon the maximum exercise price of options granted pursuant to the listed plans. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents which have been filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this Registration Statement: (a) the Registrant's latest Annual Report filed pursuant to Section 13(a) or 15(d) of the Exchange Act; (b) all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above; and (c) the description of the Registrant's Common Stock contained in the Registrant's Registration Statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering 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 (such documents, and the documents enumerated above, being hereinafter referred to as the "Incorporated Documents"). Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for all purposes to the extent that a statement contained in this Registration Statement or in any other subsequently filed Incorporated Document or in any prospectus or prospectus supplement modifies or supersedes such statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the shares of the Registrant's common stock being registered pursuant to this Registration Statement will be passed upon for the Registrant by Paul T. Dacier, Vice President and General Counsel of the Registrant. As of December 31, 1995, Mr. Dacier was the beneficial owner (for purposes of the Exchange Act) of 49,768 shares of the Registrant's common stock. II-1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Section 9 of the Amended and Restated Bylaws of the Registrant, the Registrant shall, to the extent legally permissible, indemnify each of its directors and officers (including persons who were at its request serving 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 him in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which he may be involved or with which he may be threatened, while in office or thereafter, by reason of his being or having been such a director or officer, except with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the Registrant (any person serving another organization in one or more of the indicated capacities at the request of the Registrant who shall have acted in good faith in the reasonable belief that his action was in the best interests of such other organization to be deemed as having acted in such manner with respect to the Registrant) 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 Registrant, 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 his action was in the best interests of the Registrant; 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 Registrant in advance of the final disposition thereof upon receipt of an undertaking by such director or officer to repay the amounts so paid to the Registrant if it is ultimately determined that indemnification for such expenses is not authorized under Section 9. The right of indemnification provided by Section 9 shall not be exclusive of or affect any other rights to which any director or officer may be entitled. As used in Section 9, 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 Section 9 shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law. II-2 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4.1 Form of stock certificate (incorporated by reference from the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1987, as filed with the Commission on March 31, 1988). 4.2 McDATA Corporation 1990 Class A Stock Option Plan. 4.3 McDATA Corporation 1990 Class B Stock Option Plan. 5.1 Opinion of Paul T. Dacier regarding the legality of the Common Stock being registered. 23.1 Consent of Coopers & Lybrand L.L.P. 23.2 Consent of Paul T. Dacier (included in the opinion filed as Exhibit 5.1). 25.1 Power of Attorney (included in Part II of this Registration Statement under the caption "Signatures"). ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: a. 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. b. That, for the purpose of determining any liability under the Securities Act of 1933, each 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. c. 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. II-3 d. 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 Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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. e. To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. f. 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 Act 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 Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hopkinton, State of Massachusetts, on February 28, 1996. EMC CORPORATION By: /s/ Richard J. Egan ------------------------ Richard J. Egan, Chairman of the Board Each of the undersigned directors and/or officers of the Registrant, by virtue of his or her signature to this Registration Statement appearing below, hereby constitutes and appoints Michael C. Ruettgers, Colin G. Patteson and Paul T. Dacier, and each of them singly, with full power of substitution and resubstitution, as attorneys-in-fact in his or her name, place and stead to execute any and all amendments to this Registration Statement in the capacity or capacities set forth opposite his or her name and hereby ratifies all that said attorneys-in-fact may do by virtue hereof. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED. SIGNATURE TITLE DATE - --------- ----- ---- /s/ Richard J. Egan Chairman of the Board (Principal February 28, 1996 - ------------------------ Executive Officer) and Director Richard J. Egan /s/ Michael C. Ruettgers President, Chief Executive Officer February 28, 1996 - ------------------------ and Director Michael C. Ruettgers /s/ John R. Egan Executive Vice President, Sales and February 28, 1996 - ---------------------- Director John R. Egan /s/ Colin G. Patteson Vice President and Chief Financial February 28, 1996 - --------------------- Officer (Principal Financial Colin G. Patteson Officer) /s/ William J. Teuber Vice President and Controller February 28, 1996 - ----------------------- (Principal Accounting Officer) William J. Teuber II-5 - ----------------------- Director February 28, 1996 W. Paul Fitzgerald /s/ Joseph F. Oliveri Director February 28, 1996 - ----------------------- Joseph F. Oliveri /s/ Michael J. Cronin Director February 28, 1996 - ----------------------- Michael J. Cronin /s/ Maureen E. Egan Director February 28, 1996 - ----------------------- Maureen E. Egan Director February 28, 1996 - ----------------------- John F. Cunningham II-6 EX-4.2 2 CLASS A STOCK OPTION PLAN Exhibit 4.2 McDATA CORPORATION 1990 CLASS A STOCK OPTION PLAN (As approved by the Board of Directors on August 28, 1990, and by the Stockholders on November 16, 1990) I. Purpose The McDATA Corporation 1990 Class A Stock Option Plan ("Plan") provides for the grant of Stock Options to Employees of McDATA Corporation (the "Company"), and such of its subsidiaries (as defined in Section 425(f) of the Internal Revenue Code of 1986 (the "Code")) as the Board of Directors of the Company (the "Board") shall from time to time designate ("Participating Subsidiaries"), in order to advance the interests of the Company and its Participating Subsidiaries through the motivation, attraction and retention of their respective Employees. II. Incentive Stock Options and Non-Incentive Stock Options The Stock Options granted under the Plan may be either: (a) Incentive Stock Options ("ISOs") which are intended to be "Incentive Stock Options" as that term is defined in Section 422A of the Code; or (b) Nonstatutory Stock Options ("NSOs") which are intended to be options that do not qualify as "Incentive Stock Options" under Section 422A of the Code. All Stock Options shall be ISOs unless the Option Agreement clearly designates the Stock Options granted thereunder, or a specified portion thereof, as NSOs or unless the stockholders of the Company do not approve the Plan within twelve months after the Plan is adopted by the Board. If the Plan is not approved by the stockholders of the Company within twelve months after the Plan is adopted by the Board, any ISO granted under the Plan shall be treated as an NSO as of the original date of grant, but all other terms and conditions of such Stock Options shall continue in effect. Subject to the other provisions of the Plan, a Participant 1 may receive ISOs and NSOs at the same time, provided that the ISOs and NSOs are clearly designated as such. Except as otherwise expressly provided herein, all of the provisions and requirements of the Plan relating to Stock Options shall apply to ISOs and NSOs. III. Administration 3.1 Committee. The Plan shall be administered by a committee --------- ("Committee") composed of at least two members of the Board of Directors. The Board of Directors may reserve to itself any of the authority granted to the Committee as set forth herein, and it may perform and discharge all of the functions and responsibilities of the Committee at any time that a duly constituted Committee is not appointed and serving. All references in this Plan to the "Committee" shall be deemed to refer to the Board of Directors whenever the Board is discharging the powers and responsibilities of the Committee. The Committee or the Board, as the case may be, shall have full authority to administer the Plan, including authority to interpret and construe any provision of the Plan and any Stock Option granted thereunder, and to adopt such rules and regulations for administering the Plan as it may deem necessary in order to comply with the requirements of the Code or in order that Stock Options that are intended to be ISOs will be classified as incentive stock options under the Code, or in order to conform to any regulation or to any change in any law or regulation applicable thereto. The Committee or the Board may delegate any of its responsibilities under the Plan, other than its responsibility to grant Stock Options or to interpret and construe the Plan. 3.2 Actions of Committee. All actions taken and all interpretations -------------------- and determinations made by the Committee in good faith (including determinations of Fair Market Value) shall be final and binding upon all Participants, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, and all members of the Committee shall, in addition to their rights as directors, be fully protected by the Company with respect to any such action, determination or interpretation. IV. Definitions 4.1 "Stock Option." A Stock Option is the right granted under the ------------- Plan to an Employee to purchase, at such time or times and at such price or prices 2 ("Option Price") as are determined by the Committee, the number of shares of Common Stock determined by the Committee. 4.2 "Common Stock." A share of Common Stock means a share of ------------- authorized but unissued or reacquired Class A Common Stock (par value $.001 per share) of the Company. 4.3 "Fair Market Value." If the Common Stock is not traded publicly, ------------------ the Fair Market Value of a share of Common Stock on any date shall be determined, in good faith, by the Board or the Committee after such consultation with outside legal, accounting and other experts as the Board or the Committee may deem advisable, and the Board or the Committee shall maintain a written record of its method of determining such value. If the Common Stock is traded publicly, the Fair Market Value of a share of Common Stock on any date shall be the average of the representative closing bid and asked prices, as quoted by the National Association of Securities Dealers through NASDAQ (its automated system for reporting quotes), for the date in question or, if the Common Stock is listed on the NASDAQ National Market System or is listed on a national stock exchange, the officially quoted closing price on NASDAQ or such exchange, as the case may be, on the date in question. 4.4 "Employee". An Employee is an employee of the Company or any --------- Participating Subsidiary. 4.5 "Participant". A Participant is an Employee to whom a Stock ------------ Option is granted. V. Eligibility and Participation Grants of Stock Options under this Plan may be made to Employees who are, at the time of grant, holders of Class A Common Stock or of options to acquire Class A Common Stock of the Company. Any Director of the Company or of a Participating Subsidiary who is also an Employee shall also be eligible to receive Stock Options, but Directors who are not Employees shall not be eligible to receive Stock Options under the Plan. The Committee shall from time to time determine the Employees to whom Stock Options shall be granted, the number of shares of Common Stock subject to each Stock Option to be granted to each such Employee, the Option Price of such Stock Options, all as provided in this Plan. The Option Price of any ISO shall be not less than the Fair Market Value of a share of Common Stock on the date on which the Stock Option is granted. The Option Price of an NSO shall not be less than 3 50% of the Fair Market Value of a share of Common Stock on the date the NSO is granted. If an ISO is granted to an Employee who then owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company, the Option Price of such ISO shall be at least 110% of the Fair Market Value of the Common Stock subject to the ISO at the time such ISO is granted, and such ISO shall not be exercisable after five years after the date on which it was granted. Each Stock Option shall be evidenced by a written agreement ("Option Agreement") containing such terms and provisions as the Committee may determine, subject to the provisions of this Plan. VI. Shares of Common Stock Subject to the Plan 6.1 Maximum Number. The maximum aggregate number of shares of Common -------------- Stock that may be made subject to stock options under this Plan shall be 3,000,000 shares; provided that such number of shares shall be reduced by the number of shares subject to outstanding options under the Company's 1982 Incentive Stock Option Plan. To the extent that if the aggregate Fair Market Value (determined as of the time a Stock Option is granted) of the Common Stock subject to a Stock Option that first becomes exercisable in a particular calendar year exceeds $100,000, the Stock Option shall be treated as an NSO with respect to the portion of such shares having a Fair Market Value in excess of $100,000. If any shares of Common Stock subject to Stock Options are not purchased or otherwise paid for before such Stock Options expire, such shares may again be made subject to Stock Options. 6.2 Capital Changes. In the event any changes are made to the --------------- outstanding shares of Common Stock (whether by reason of merger, consolidation, reorganization, recapitalization, stock dividend in excess of ten percent (10%) at any single time, stock split, combination of shares, exchange of shares, change in corporate structure or otherwise), appropriate adjustments shall be made in: (i) the number of shares of Common Stock theretofore made subject to Stock Options, and in the purchase price of said shares; and (ii) the aggregate number of shares which may be made subject to Stock Options. If any of the foregoing adjustments shall result in a fractional share, the fraction shall be disregarded, and the Company shall have no obligation to make any cash or other payment with respect to such a fractional share. VII. Exercise of Stock Options 4 7.1 Time of Exercise. Subject to the provisions of the Plan, the ---------------- Committee, in its discretion, shall determine the time when a Stock Option, or a portion of a Stock Option, shall become exercisable, and the time when a Stock Option, or a portion of a Stock Option, shall expire. Such time or times shall be set forth in the Option Agreement evidencing such Stock Option. Unless otherwise determined by the Committee, a Stock Option shall become exercisable in four equal installments on the first four anniversaries of the date of grant. A Stock Option shall expire, to the extent not exercised, no later than the tenth anniversary of the date on which it was granted. The Committee may accelerate the vesting of any Participant's Stock Option by giving written notice to the Participant. Upon receipt of such notice, the Participant and the Company shall amend the Option Agreement to reflect the new vesting schedule. Unless otherwise determined by the Committee, the acceleration of the exercise period of a Stock Option shall not affect the expiration date of that Stock Option. 7.2 Exchange of Outstanding Stock. The Committee, in its sole ----------------------------- discretion, may permit a Participant to surrender to the Company shares of the Common Stock previously acquired by the Participant as part of full payment for the exercise of a Stock Option. Such surrendered shares shall be valued at their Fair Market Value on the date of exercise. Unless otherwise determined by the Committee, any such shares surrendered by the Participant shall have been held by him for at least six months prior to surrender. 7.3 Stock Restriction Agreement. The Committee may provide that --------------------------- shares of Common Stock issuable upon the exercise of a Stock Option shall, under certain conditions, be subject to restrictions whereby the Company has a right of first refusal with respect to such shares or a right or obligation to repurchase all or a portion of such shares, which restrictions may survive a Participant's term of employment with the Company. The acceleration of the time or times at which the Stock Option becomes exercisable may be conditioned upon the Participant's agreement to such restrictions. 7.4 Termination of Employment Before Exercise. If a Participant's ----------------------------------------- employment with the Company or a Participating Subsidiary shall terminate for any reason other than the Participant's disability, any Stock Option then held by the Participant, to the extent then exercisable under the applicable Option Agreement(s), shall remain exercisable after the termination of his employment for a period of three months. If the Participant's employment is terminated because the Participant is disabled within the meaning of Section 22(e)(3) of the Code, any Stock Option then 5 held by the Participant, to the extent then exercisable under the applicable Option Agreement(s), shall remain exercisable after the termination of his employment for a period of twelve months (but in no event beyond ten years from the date of grant of the Stock Option). If the Stock Option is not exercised during the applicable period, it shall be deemed to have been forfeited and of no further force or effect. 7.5 Disposition of Forfeited Stock Options. Any shares of Common -------------------------------------- Stock subject to Stock Options forfeited by a Participant shall not thereafter be eligible for purchase by the Participant but may be made subject to Stock Options granted to other Participants. VIII. No Contract of Employment Nothing in this Plan shall confer upon the Participant the right to continue in the employ of the Company, or any Participating Subsidiary, nor shall it interfere in any way with the right of the Company, or any such Participating Subsidiary, to discharge the Participant at any time for any reason whatsoever, with or without cause. Nothing in this Article VIII shall affect any rights or obligations of the Company or any Participant under any written contract of employment. IX. No Rights as a Stockholder A Participant shall have no rights as a stockholder with respect to any shares of Common Stock subject to a Stock Option. Except as provided in Section 6.2, no adjustment shall be made in the number of shares of Common Stock issued to a Participant, or in any other rights of the Participant upon exercise of a Stock Option by reason of any dividend, distribution or other right granted to stockholders for which the record date is prior to the date of exercise of the Participant's Stock Option. X. Assignability No Stock Option granted under this Plan, nor any other rights acquired by a Participant under this Plan, shall be assignable or transferable by a Participant, other than by will or the laws of descent and distribution, and are exercisable, during his lifetime, only by him. Notwithstanding the preceding sentence, the Committee may, in its sole discretion, permit the assignment or transfer of an NSO and the exercise thereof by a person other than a Participant, on such terms and conditions as the Committee in its sole discretion may determine. Any such terms shall be determined at the time the NSO is granted, and shall be set forth in the Option Agreement. In the event of his death, the Stock Option may be exercised by the Personal Representative of the Participant's estate or, if no 6 Personal Representative has been appointed, by the successor or successors in interest determined under the Participant's will or under the applicable laws of descent and distribution. XI. Amendment The Board may from time to time alter, amend, suspend or discontinue the Plan, including, where applicable, any modifications or amendments as it shall deem advisable in order that ISOs will be classified as incentive stock options under the Code, or in order to conform to any regulation or to any change in any law or regulation applicable thereto; provided, however, that no such action shall adversely affect the rights and obligations with respect to Stock Options at any time outstanding under the Plan. XII. Registration of Optioned Shares The Stock Options shall not be exercisable unless the purchase of such optioned shares is pursuant to an applicable effective registration statement under the Securities Act of 1933, as amended, or unless, in the opinion of counsel to the Company, the proposed purchase of such optioned shares would be exempt from the registration requirements of the Securities Act of 1933, as amended, and from the registration or qualification requirements of applicable state securities laws. XIII. Withholding Taxes The Company or Participating Subsidiary may take such steps as it may deem necessary or appropriate for the withholding of any taxes which the Company or the Participating Subsidiary is required by any law or regulation or any governmental authority, whether federal, state or local, domestic or foreign, to withhold in connection with any Stock Option, including, but not limited to, the withholding of all or any portion of any issuance of shares of Common Stock upon the exercise of any Stock Option until the Participant reimburses the Company or Participating Subsidiary for the amount the Company or Participating Subsidiary is required to withhold with respect to such taxes, or cancelling any portion of such issuance in an amount sufficient to reimburse itself for the amount it is required to so withhold. XIV. Brokerage Arrangements The Committee, in its discretion, may enter into arrangements with one or more banks, brokers or other financial institutions to facilitate the disposition of shares acquired upon exercise of Stock Options, including, without limitation, 7 arrangements for the simultaneous exercise of Stock Options and sale of the shares acquired upon such exercise. XV. Nonexclusivity of the Plan Neither the adoption of the Plan by the Board nor the submission of the Plan to stockholders of the Company for approval shall be construed as creating any limitations on the power or authority of the Board to adopt such other or additional incentive or other compensation arrangements of whatever nature as the Board may deem necessary or desirable or preclude or limit the continuation of any other plan, practice or arrangement for the payment of compensation or fringe benefits to employees generally, or to any class or group of employees, which the Company or any Subsidiary now has lawfully put into effect, including, without limitation, any retirement, pension, savings and stock purchase plan, insurance, death and disability benefits and executive short-term incentive plans. XVI. Effective Date This Plan was adopted by the Board of Directors and became effective on August 28, 1990, and was approved by the Company's stockholders on November 16, 1990. No Stock Options shall be granted subsequent to ten years after the effective date of the Plan. Stock Options outstanding subsequent to ten years after the effective date of the Plan shall continue to be governed by the provisions of the Plan. 8 EX-4.3 3 CLASS B STOCK OPTION PLAN Exhibit 4.3 McDATA CORPORATION 1990 CLASS B STOCK OPTION PLAN (As approved by the Board of Directors on July 27, 1990, and by the Stockholders on November 16, 1990) I. Purpose The McDATA Corporation 1990 Class B Stock Option Plan ("Plan") provides for the grant of Stock Options to Employees of McDATA Corporation (the "Company"), and such of its subsidiaries (as defined in Section 425(f) of the Internal Revenue Code of 1986 (the "Code")) as the Board of Directors of the Company (the "Board") shall from time to time designate ("Participating Subsidiaries"), in order to advance the interests of the Company and its Participating Subsidiaries through the motivation, attraction and retention of their respective Employees. II. Incentive Stock Options and Non-Incentive Stock Options The Stock Options granted under the Plan may be either: (a) Incentive Stock Options ("ISOs") which are intended to be "Incentive Stock Options" as that term is defined in Section 422A of the Code; or (b) Nonstatutory Stock Options ("NSOs") which are intended to be options that do not qualify as "Incentive Stock Options" under Section 422A of the Code. All Stock Options shall be ISOs unless the Option Agreement clearly designates the Stock Options granted thereunder, or a specified portion thereof, as NSOs or unless the stockholders of the Company do not approve the Plan within twelve months after the Plan is adopted by the Board. If the Plan is not approved by the stockholders of the Company within twelve months after the Plan is adopted by the Board, any ISO granted under the Plan shall be treated as an NSO as of the original date of grant, but all other terms and conditions of such Stock Options shall continue in effect. Subject to the other provisions of the Plan, a Participant may receive ISOs and NSOs at the same time, provided that the ISOs and NSOs are clearly designated as such. 1 Except as otherwise expressly provided herein, all of the provisions and requirements of the Plan relating to Stock Options shall apply to ISOs and NSOs. III. Administration 3.1 Committee. The Plan shall be administered by a committee --------- ("Committee") composed of at least two members of the Board of Directors. The Board of Directors may reserve to itself any of the authority granted to the Committee as set forth herein, and it may perform and discharge all of the functions and responsibilities of the Committee at any time that a duly constituted Committee is not appointed and serving. All references in this Plan to the "Committee" shall be deemed to refer to the Board of Directors whenever the Board is discharging the powers and responsibilities of the Committee. The Committee or the Board, as the case may be, shall have full authority to administer the Plan, including authority to interpret and construe any provision of the Plan and any Stock Option granted thereunder, and to adopt such rules and regulations for administering the Plan as it may deem necessary in order to comply with the requirements of the Code or in order that Stock Options that are intended to be ISOs will be classified as incentive stock options under the Code, or in order to conform to any regulation or to any change in any law or regulation applicable thereto. The Committee or the Board may delegate any of its responsibilities under the Plan, other than its responsibility to grant Stock Options or to interpret and construe the Plan. 3.2 Actions of Committee. All actions taken and all interpretations -------------------- and determinations made by the Committee in good faith (including determinations of Fair Market Value) shall be final and binding upon all Participants, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, and all members of the Committee shall, in addition to their rights as directors, be fully protected by the Company with respect to any such action, determination or interpretation. IV. Definitions 4.1 "Stock Option." A Stock Option is the right granted under the ------------- Plan to an Employee to purchase, at such time or times and at such price or prices ("Option Price") as are determined by the Committee, the number of shares of Common Stock determined by the Committee. 2 4.2 "Common Stock." A share of Common Stock means a share ------------- of authorized but unissued or reacquired Class B Common Stock (par value $.001 per share) of the Company. 4.3 "Fair Market Value." If the Common Stock is not traded publicly, ------------------ the Fair Market Value of a share of Common Stock on any date shall be determined, in good faith, by the Board or the Committee after such consultation with outside legal, accounting and other experts as the Board or the Committee may deem advisable, and the Board or the Committee shall maintain a written record of its method of determining such value. If the Common Stock is traded publicly, the Fair Market Value of a share of Common Stock on any date shall be the average of the representative closing bid and asked prices, as quoted by the National Association of Securities Dealers through NASDAQ (its automated system for reporting quotes), for the date in question or, if the Common Stock is listed on the NASDAQ National Market System or is listed on a national stock exchange, the officially quoted closing price on NASDAQ or such exchange, as the case may be, on the date in question. 4.4 "Employee". An Employee is an employee of the Company or any --------- Participating Subsidiary. 4.5 "Participant". A Participant is an Employee to whom a Stock ------------ Option is granted. V. Eligibility and Participation Grants of Stock Options may be made to Employees of the Company or any Participating Subsidiary. Any Director of the Company or of a Participating Subsidiary who is also an Employee shall also be eligible to receive Stock Options, but Directors who are not Employees shall not be eligible to receive Stock Options under the Plan. The Committee shall from time to time determine the Employees to whom Stock Options shall be granted, the number of shares of Common Stock subject to each Stock Option to be granted to each such Employee, the Option Price of such Stock Options, all as provided in this Plan. The Option Price of any ISO shall be not less than the Fair Market Value of a share of Common Stock on the date on which the Stock Option is granted. The Option Price of an NSO shall not be less than 50% of the Fair Market Value of a share of Common Stock on the date the NSO is granted. If an ISO is granted to an Employee who then owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company, the Option Price of 3 such ISO shall be at least 110% of the Fair Market Value of the Common Stock subject to the ISO at the time such ISO is granted, and such ISO shall not be exercisable after five years after the date on which it was granted. Each Stock Option shall be evidenced by a written agreement ("Option Agreement") containing such terms and provisions as the Committee may determine, subject to the provisions of this Plan. VI. Shares of Common Stock Subject to the Plan 6.1 Maximum Number. The maximum aggregate number of shares of Common -------------- Stock that may be made subject to stock options under this Plan shall be 1,500,000 shares; provided that such number of shares shall be reduced by the number of shares subject to outstanding options under the Company's 1988 Incentive Stock Option Plan and Director Stock Option Plan, and by the number of shares issued under the Company's Employee Stock Purchase Plan and 401(k) Plan. To the extent that if the aggregate Fair Market Value (determined as of the time a Stock Option is granted) of the Common Stock subject to a Stock Option that first becomes exercisable in a particular calendar year exceeds $100,000, the Stock Option shall be treated as an NSO with respect to the portion of such shares having a Fair Market Value in excess of $100,000. If any shares of Common Stock subject to Stock Options are not purchased or otherwise paid for before such Stock Options expire, such shares may again be made subject to Stock Options. 6.2 Capital Changes. In the event any changes are made to the --------------- outstanding shares of Common Stock (whether by reason of merger, consolidation, reorganization, recapitalization, stock dividend in excess of ten percent (10%) at any single time, stock split, combination of shares, exchange of shares, change in corporate structure or otherwise), appropriate adjustments shall be made in: (i) the number of shares of Common Stock theretofore made subject to Stock Options, and in the purchase price of said shares; and (ii) the aggregate number of shares which may be made subject to Stock Options. If any of the foregoing adjustments shall result in a fractional share, the fraction shall be disregarded, and the Company shall have no obligation to make any cash or other payment with respect to such a fractional share. VII. Exercise of Stock Options VII. Exercise of Stock Options 4 7.1 Time to Exercise. Subject to the provisions of the Plan, the ---------------- Committee, in its discretion, shall determine the time when a Stock Option, or a portion of a Stock Option, shall become exercisable, and the time when a Stock Option, or a portion of a Stock Option, shall expire. Such time or times shall be set forth in the Option Agreement evidencing such Stock Option. Unless otherwise determined by the Committee, a Stock Option shall become exercisable in four equal installments on the first four anniversaries of the date of grant. A Stock Option shall expire, to the extent not exercised, no later than the tenth anniversary of the date on which it was granted. The Committee may accelerate the vesting of any Participant's Stock Option by giving written notice to the Participant. Upon receipt of such notice, the Participant and the Company shall amend the Option Agreement to reflect the new vesting schedule. Unless otherwise determined by the Committee, the acceleration of the exercise period of a Stock Option shall not affect the expiration date of that Stock Option. 7.2 Exchange of Outstanding Stock. The Committee, in its sole ----------------------------- discretion, may permit a Participant to surrender to the Company shares of the Common Stock previously acquired by the Participant as part of full payment for the exercise of a Stock Option. Such surrendered shares shall be valued at their Fair Market Value on the date of exercise. Unless otherwise determined by the Committee, any such shares surrendered by the Participant shall have been held by him for at least six months prior to surrender. 7.3 Stock Restriction Agreement. The Committee may provide that --------------------------- shares of Common Stock issuable upon the exercise of a Stock Option shall, under certain conditions, be subject to restrictions whereby the Company has a right of first refusal with respect to such shares or a right or obligation to repurchase all or a portion of such shares, which restrictions may survive a Participant's term of employment with the Company. The acceleration of the time or times at which the Stock Option becomes exercisable may be conditioned upon the Participant's agreement to such restrictions. 7.4 Termination of Employment Before Exercise. If a Participant's ----------------------------------------- employment with the Company or a Participating Subsidiary shall terminate for any reason other than the Participant's disability, any Stock Option then held by the Participant, to the extent then exercisable under the applicable Option Agreements), shall remain exercisable after the termination of his employment for a period of three months. If the Participant's employment is terminated because the Participant is 5 disabled within the meaning of Section 22(e)(3) of the Code, any Stock Option then held by the Participant, to the extent then exercisable under the applicable Option Agreement(s), shall remain exercisable after the termination of his employment for a period of twelve months (but in no event beyond ten years from the date of grant of the Stock Option). If the Stock Option is not exercised during the applicable period, it shall be deemed to have been forfeited and of no further force or effect. 7.5 Disposition of Forfeited Stock Options. Any shares of Common -------------------------------------- Stock subject to Stock Options forfeited by a Participant shall not thereafter be eligible for purchase by the Participant but may be made subject to Stock Options granted to other Participants. VIII. No Contract of Employment Nothing in this Plan shall confer upon the Participant the right to continue in the employ of the Company, or any Participating Subsidiary, nor shall it interfere in any way with the right of the Company, or any such Participating Subsidiary, to discharge the Participant at any time for any reason whatsoever, with or without cause. Nothing in this Article VIII shall affect any rights or obligations of the Company or any Participant under any written contract of employment. IX. No Rights as a Stockholder A Participant shall have no rights as a stockholder with respect to any shares of Common Stock subject to a Stock Option. Except as provided in Section 6.2, no adjustment shall be made in the number of shares of Common Stock issued to a Participant, or in any other rights of the Participant upon exercise of a Stock Option by reason of any dividend, distribution or other right granted to stockholders for which the record date is prior to the date of exercise of the Participant's Stock Option. X. Assignability No Stock Option granted under this Plan, nor any other rights acquired by a Participant under this Plan, shall be assignable or transferable by a Participant, other than by will or the laws of descent and distribution, and are exercisable, during his lifetime, only by him. Notwithstanding the preceding sentence, the Committee may, in its sole discretion, permit the assignment or transfer of an NSO and the exercise thereof by a person other than a Participant, on such terms and conditions as the Committee in its sole discretion may determine. Any such terms shall be determined at the time the NSO is granted, and shall 6 be set forth in the Option Agreement. In the event of his death, the Stock Option may be exercised by the Personal Representative of the Participant's estate or, if no Personal Representative has been appointed, by the successor or successors in interest determined under the Participant's will or under the applicable laws of descent and distribution. XI. Amendment The Board may from time to time alter, amend, suspend or discontinue the Plan, including, where applicable, any modifications or amendments as it shall deem advisable in order that ISOs will be classified as incentive stock options under the Code, or in order to conform to any regulation or to any change in any law or regulation applicable thereto; provided, however, that no such action shall adversely affect the rights and obligations with respect to Stock Options at any time outstanding under the Plan. XII. Registration of Optioned Shares The Stock Options shall not be exercisable unless the purchase of such optioned shares is pursuant to an applicable effective registration statement under the Securities Act of 1933, as amended, or unless, in the opinion of counsel to the Company, the proposed purchase of such optioned shares would be exempt from the registration requirements of the Securities Act of 1933, as amended, and from the registration or qualification requirements of applicable state securities laws. XIII. Withholding Taxes The Company or Participating Subsidiary may take such steps as it may deem necessary or appropriate for the withholding of any taxes which the Company or the Participating Subsidiary is required by any law or regulation or any governmental authority, whether federal, state or local, domestic or foreign, to withhold in connection with any Stock Option, including, but not limited to, the withholding of all or any portion of any issuance of shares of Common Stock upon the exercise of any Stock Option until the Participant reimburses the Company or Participating Subsidiary for the amount the Company or Participating Subsidiary is required to withhold with respect to such taxes, or cancelling any portion of such issuance in an amount sufficient to reimburse itself for the amount it is required to so withhold. XIV. Brokerage Arrangements 7 The Committee, in its discretion, may enter into arrangements with one or more banks, brokers or other financial institutions to facilitate the disposition of shares acquired upon exercise of Stock Options, including, without limitation, arrangements for the simultaneous exercise of Stock Options and sale of the shares acquired upon such exercise. XV. Nonexclusivity of the Plan Neither the adoption of the Plan by the Board nor the submission of the Plan to stockholders of the Company for approval shall be construed as creating any limitations on the power or authority of the Board to adopt such other or additional incentive or other compensation arrangements of whatever nature as the Board may deem necessary or desirable or preclude or limit the continuation of any other plan, practice or arrangement for the payment of compensation or fringe benefits to employees generally, or to any class or group of employees, which the Company or any Subsidiary now has lawfully put into effect, including, without limitation, any retirement, pension, savings and stock purchase plan, insurance, death and disability benefits and executive short-term incentive plans. XVI. Effective Date This Plan was adopted by the Board of Directors and became effective on July 27, 1990, and was approved by the Company's stockholders on November 16, 1990. No Stock Options shall be granted subsequent to ten years after the effective date of the Plan. Stock Options outstanding subsequent to ten years after the effective date of the Plan shall continue to be governed by the provisions of the Plan. 8 EX-5.1 4 GENERAL COUNSEL LETTER Exhibit 5.1 February 23, 1996 EMC Corporation 171 South Street Hopkinton, Massachusetts 01748 Ladies and Gentlemen: I am General Counsel of EMC Corporation, a Massachusetts corporation (the "Company"), and in such capacity have examined the Company's Registration Statement on Form S-8 (the "Registration Statement"), being filed with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of the offering of a maximum of 493,400 shares (the "Shares") of the Company's Common Stock, to be issued pursuant to the McDATA Corporation 1990 Class A Stock Option Plan and the McDATA 1990 Class B Stock Option Plan (collectively, the "Plans"). I am familiar with the proceedings undertaken by the Company in connection with the authorization, reservation and registration of the Shares. Additionally, I have examined such questions of law and fact as I have considered necessary or appropriate for purposes of this opinion. Based on the foregoing, I am of the opinion that the Shares have been duly authorized and, upon issuance, delivery and payment therefor as contemplated by the Plans, will be validly issued, fully paid and nonassessable. I hereby consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Paul T. Dacier Paul T. Dacier Vice President and General Counsel EX-23.1 5 CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the registration of 493,400 shares of Common Stock, $0.01 par value, of EMC Corporation authorized for issuance pursuant to the McDATA 1990 Class A Stock Option Plan and the McDATA 1990 Class B Stock Option Plan of our report dated January 30, 1995, with respect to the consolidated financial statements and schedules of EMC Corporation included in its Annual Report on Form 10-K for the year ended December 31, 1994 filed with the Securities and Exchange Commission. COOPERS & LYBRAND L.L.P. Boston, Massachusetts February 27, 1996 -----END PRIVACY-ENHANCED MESSAGE-----