As filed with the Securities and Exchange Commission on January 9, 2004
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMC CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Massachusetts
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(State or Other Jurisdiction of Incorporation or Organization)
04-2680009
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(I.R.S. Employer Identification Number)
176 South Street, Hopkinton, Massachusetts 01748
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(Address of Principal Executive Offices)
VMware, Inc. 1998 Stock Plan
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(Full Title of the Plans)
Paul T. Dacier, Esq.
Senior Vice President and General Counsel
EMC Corporation
176 South Street
Hopkinton, Massachusetts 01748
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(Name and Address of Agent for Service)
(508) 435-1000
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(Telephone Number, Including Area Code for Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Amount of
Title of Securities to be Amount to be Offering Price Maximum Aggregate Registration
Registered Registered (1) Per Share (2) Offering Price (2) Fee (2)
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VMware, Inc. 1998 Stock Plan 6,304,448 $1.59 $10,024,072 $810.95
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(1) This Registration Statement covers an aggregate of 6,304,448 shares of
the Registrant's common stock, par value $.01 per share (the "Common
Stock"), that may be issued pursuant to awards granted under the equity
plans identified above (collectively, the "Plans"). Also registered
hereunder are such additional shares of Common Stock, presently
undeterminable, as may be necessary to satisfy the antidilution
provisions of each of the Plans 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 prices at which the options
to acquire Common Stock may be exercised.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates by reference the following documents filed
with the Commission:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002;
(b) the Registrant's Quarterly Reports on Form 10-Q for the quarter
ended June 30, 2003 and the quarter ended September 30, 2003,
respectively;
(c) the Registrant's Current Reports on Form 8-K filed with the
Commission on January 23, 2003, April 8, 2003, April 16, 2003,
July 8, 2003, July 16, 2003, October 14, 2003, October 21, 2003,
December 16, 2003 and December 19, 2003 respectively; and
(d) the description of 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 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 Securities Exchange Act
of 1934, 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 incorporated 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. Mr.
Dacier holds options to purchase Common Stock and owns shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts authorizes a Massachusetts corporation to indemnify any
director, officer, employee or other agent of the corporation, 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.
The Registrant's Restated Articles of Organization include a provision
that eliminates the personal liability of each of its directors 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,
except for liability, to the extent required by Section 13(b)(1 1/2) or any
successor provision of the Massachusetts Business Corporation Law, (a) for any
breach of the director's duty of loyalty to the Registrant or its stockholders,
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under sections 61 or 62 of the
Massachusetts Business Corporation Law, or (d) for any transaction from which
the director derived an improper personal benefit.
In addition, the Registrant's Amended and Restated By-laws provide
that (a) the Registrant 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, 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 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; (b) the
Registrant is authorized to pay expenses, including counsel fees, from time to
time reasonably incurred by any director or officer in connection with the
defense or disposition of any such action, suit or other proceeding in advance
of the final disposition thereof upon receipt of an undertaking by such
director or officer to repay to the Registrant the amounts so paid by the
Registrant if it is ultimately determined that indemnification for such
expenses is not authorized under the Amended and Restated Bylaws; (c) the
right of indemnification under the Amended and Restated By-laws shall not be
exclusive of or affect any other rights to which any director or officer may
be entitled by contract or otherwise under law.
The Registrant has entered into indemnification agreements with its
directors and executive officers providing for the indemnification of such
director or executive officer, as applicable, to the extent legally
permissible and the payment of expenses, including counsel fees reasonably
incurred in connection with the defense or disposition of any action, suit or
other proceeding in which such individual may be involved by reason of such
individual being or having been a director or officer of the Registrant.
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 VMware, Inc. 1998 Stock 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 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 has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of
Hopkinton, Commonwealth of Massachusetts, on the 9th day of January, 2004.
EMC CORPORATION
By: /s/ Paul T. Dacier
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Paul T. Dacier
Senior Vice President and
General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints William J. Teuber, Jr. and Paul T.
Dacier, and each of them, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, 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 and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof. This power
of attorney may be executed in counterparts.
* * * *
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 date indicated.
Signature Title Date
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/s/ Michael C. Ruettgers Chairman of the Board January 9, 2004
--------------------------------- of Directors
MICHAEL C. RUETTGERS
/s/ Joseph M. Tucci
--------------------------------- President, Chief Executive Officer January 9, 2004
JOSEPH M. TUCCI and Director
(Principal Executive Officer)
/s/ William J. Teuber, Jr.
--------------------------------- Executive Vice President and January 9, 2004
WILLIAM J. TEUBER, JR. Chief Financial Officer
(Principal Financial Officer)
/s/ Mark A. Link Vice President and Chief January 9, 2004
--------------------------------- Accounting Officer
MARK A. LINK (Principal Accounting Officer)
/s/ Michael J. Cronin Director January 9, 2004
---------------------------------
MICHAEL J. CRONIN
/s/ Gail Deegan Director January 9, 2004
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GAIL DEEGAN
/s/ John R. Egan Director January 9, 2004
-----------------------------------
JOHN R. EGAN
/s/ W. Paul Fitzgerald Director January 9, 2004
-----------------------------------
W. PAUL FITZGERALD
/s/ Windle B. Priem Director January 9, 2004
-----------------------------------
WINDLE B. PRIEM
/s/ David N. Strohm Director January 9, 2004
-----------------------------------
DAVID N. STROHM
/s/ Alfred M. Zeien Director January 9, 2004
-----------------------------------
ALFRED M. ZEIEN
[SIGNATURE PAGE TO REGISTRATION STATEMENT ON FORM S-8]
EXHIBIT INDEX
4.1 VMware, Inc. 1998 Stock 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).