EXHIBIT 10.3
EMC CORPORATION
1993 STOCK OPTION PLAN, as amended March 5, 2000
1. PURPOSE.
The purpose of the EMC Corporation 1993 Stock Option Plan is to enable EMC
Corporation to provide a special incentive to a limited number of key employees
of the Company and its Subsidiaries, if any, who are in a position to have a
significant effect upon the Company's business and earnings. In order to
accomplish this purpose, the Plan authorizes the grant to such key employees of
options to purchase Common Stock of the Company. Increased ownership of Common
Stock will provide such key employees with an additional incentive to take into
account the long-term interests of the Company.
2. DEFINITIONS.
As used herein, the following words or terms have the meanings set forth
below. The masculine gender is used throughout the Plan but is intended to apply
to members of both sexes.
2.1 "Board of Directors" means the Board of Directors of the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute.
2.3 "Committee" means the Committee appointed by the Board of Directors to
administer the Plan or the Board of Directors as a whole if no appointment is
made.
2.4 "Common Stock" means the Common Stock of the Company.
2.5 "Company" means EMC Corporation, a corporation established under the
laws of The Commonwealth of Massachusetts.
2.6 "Fair Market Value" in the case of a share of Common Stock on a
particular day, means the fair market value as determined from time to time by
the Board of Directors or, where appropriate, by the Committee, taking into
account all information which the Board of Directors, or the Committee,
considers relevant.
2.7 "Incentive Stock Option" means a stock option that satisfies the
requirements of Section 422 of the Code.
2.8 "Participant" means an individual holding a stock option or stock
options granted to him under the Plan.
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2.9 "Plan" means the EMC Corporation 1993 Stock Option Plan set forth
herein.
2.10 "Subsidiary" or "Subsidiaries" means a corporation or corporations in
which the Company owns, directly or indirectly, stock possessing 50 percent or
more of the total combined voting power of all classes of stock.
2.11 "Ten Percent Stockholder" means any person who, at the time an option
is granted, owns or is deemed to own stock (as determined in accordance with
Sections 422 and 424 of the Code) possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or its parent
or a subsidiary.
3. ADMINISTRATION.
3.1 The Plan shall be administered by the Committee and, to the extent
provided herein, the Board of Directors. A majority of the members of the
Committee shall constitute a quorum, and all determinations of the Committee
shall be made by a majority of its members. Any determination of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by a majority of the Committee members.
3.2 Subject to the provisions set forth herein, each of the Committee and
the Board of Directors shall have full authority to determine the provisions of
options to be granted under the Plan. Subject to the provisions set forth
herein, the Committee shall have full authority to interpret the terms of the
Plan and of options granted under the Plan, to adopt, amend and rescind rules
and guidelines for the administration of the Plan and for its own acts and
proceedings and to decide all questions and settle all controversies and
disputes which may arise in connection with the Plan; PROVIDED, HOWEVER, that
any change to the terms of an option granted hereunder shall be approved by the
Board of Directors to the extent such change would be deemed to be a new option
grant or such terms relate to a subsequent transaction that would not be exempt
from Section 16(b) of the Securities Exchange Act of 1934 in the absence of such
approval.
3.3 The decision of the Committee or the Board of Directors, as applicable,
on any matter as to which the Committee or the Board of Directors, as
applicable, is given authority under subsection 3.2 shall be final and binding
on all persons concerned.
3.4 Nothing in the Plan shall be deemed to give any officer or employee, or
his legal representatives or assigns, any right to participate in the Plan,
except to such extent, if any, as the Committee or the Board, as applicable, may
have determined or approved pursuant to the provisions of the Plan.
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4. SHARES SUBJECT TO THE PLAN.
4.1 The maximum number of shares of Common Stock that may be delivered upon
the exercise of options granted under the Plan shall be 90,000,000*, subject to
adjustment in accordance with the provisions of Section 8.
4.2 If any option granted under the Plan terminates without having been
exercised in full (including an option which terminates by agreement between the
Company and the Participant), or if shares of Common Stock are reacquired by the
Company upon the rescission of an exercise of an option, the number of shares of
Common Stock as to which an option has not been exercised prior to termination,
or have been reacquired upon the rescission of an option, shall be available for
future grants within the limits set forth in subsection 4.1.
4.3 Shares of Common Stock delivered upon the exercise of options shall
consist of shares of authorized and unissued Common Stock, except that the Board
of Directors may from time to time in its discretion determine in any case the
shares to be so delivered shall consist of shares of authorized and issued
Common Stock reacquired by the Company and held in its Treasury. No fractional
shares of Common Stock shall be delivered upon the exercise of an option.
5. ELIGIBILITY FOR OPTIONS.
Employees eligible to receive options under the Plan shall be those key
employees of the Company and its Subsidiaries, if any, who, in the opinion of
the Committee, are in a position to have a significant effect upon the Company's
business and earnings. Members of the Board of Directors of the Company or a
Subsidiary who are not employed as regular salaried officers or employees of the
Company or a Subsidiary may not participate in the Plan.
6. GRANT OF OPTIONS.
6.1 From time to time while the Plan is in effect, each of the Committee
and the Board of Directors may, in its absolute discretion, select from among
the persons eligible to receive options (including persons to whom options were
previously granted) those persons to whom options are to be granted.
6.2 Each of the Committee and the Board of Directors shall, in its absolute
discretion, determine the number of shares of Common Stock to be subject to each
option granted by it under the Plan.
*Subject to stockholder approval
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6.3 No Incentive Stock Option may be granted under the Plan after May 12,
2003, but options theretofore granted may extend beyond that date.
7. PROVISIONS OF OPTIONS.
7.1 INCENTIVE STOCK OPTIONS OR OTHER OPTIONS. Options granted under the
Plan may be either Incentive Stock Options or options which do not qualify as
Incentive Stock Options, as the Committee or the Board of Directors shall
determine at the time of each grant of options hereunder.
7.2 STOCK OPTION CERTIFICATES OR AGREEMENTS. Options granted under the Plan
shall be evidenced by certificates or agreements in such form as the Committee
shall from time to time approve. Such certificates or agreements shall comply
with the terms and conditions of the Plan and may contain such other provisions
not inconsistent with the terms and conditions of the Plan as the Committee
shall deem advisable. In the case of options intended to qualify as Incentive
Stock Options, the certificates or agreements shall contain such provisions
relating to exercise and other matters as are required of incentive stock
options under the Code.
7.3 TERMS AND CONDITIONS. All options granted under the Plan shall be
subject to the following terms and conditions to the extent applicable and to
such other terms and conditions not inconsistent therewith as the Committee or
the Board of Directors shall determine:
7.3.1 EXERCISE PRICE. The exercise price per share of Common Stock
with respect to each option shall be as determined by the Committee but in
the case of an Incentive Stock Option not less than 100% (110% in the case
of an Incentive Stock Option granted to a Ten Percent Stockholder) of the
Fair Market Value per share at the time the option is granted. In the case
of an option which does not qualify as an Incentive Stock Option, the
exercise price per share of Common Stock shall be not less than par value.
7.3.2 VALUE OF SHARES OF COMMON STOCK SUBJECT TO INCENTIVE STOCK
OPTIONS. Each eligible employee may be granted Incentive Stock Options only
to the extent that, in the aggregate under this Plan and all incentive
stock option plans of the Company and any related corporation, such
Incentive Stock Options do not become exercisable for the first time by
such employee during any calendar year in a manner which would entitle the
employee to purchase more than $100,000 in fair market value (determined at
the time the Incentive Stock Options were granted) of Common Stock in that
year. Any options granted to an employee in excess of such amount will be
granted as Non-Qualified Options.
7.3.3 PERIOD OF OPTIONS. An option shall be exercisable during
such period of time as the Committee or Board of Directors may specify
(subject to
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subsection 7.4 below), but in the case of an Incentive Stock Option
not after the expiration of ten years (five years in the case of an
Incentive Stock Option granted to a Ten Percent Stockholder) from the
date the option is granted.
7.3.4 EXERCISE OF OPTIONS.
7.3.4.1 Each option shall be made exercisable at such time
or times as the Committee or the Board of Directors shall
determine. In the case of an option made exercisable in
installments, the Committee or the Board of Directors may later
determine to accelerate the time at which one or more of such
installments may be exercised.
7.3.4.2 Any exercise of an option shall be in writing signed
by the proper person and delivered or mailed to the General
Counsel of the Company, accompanied by an option exercise notice
and payment in full for the number of shares in respect to which
the option is exercised.
7.3.4.3 In the event an option is exercised by the executor
or administrator of a deceased Participant, or by the person or
persons to whom the option has been transferred by the
Participant's will or the applicable laws of descent and
distribution, the Company shall be under no obligation to deliver
stock thereunder until the Company is satisfied that the person
or persons exercising the option is or are the duly appointed
executor or administrator of the deceased Participant or the
person or persons to whom the option has been transferred by the
Participant's will or by the applicable laws of descent and
distribution.
7.3.4.4 The Committee or the Board of Directors may at the
time of grant condition the exercise of an option upon agreement
by the Participant to subject the Common Stock to any
restrictions on transfer or repurchase rights in effect on the
date of exercise, upon representations of continued employment
and upon other terms not inconsistent with this Plan. Any such
conditions shall be set forth in the option certificate or other
document evidencing the option.
7.3.4.5 In the case of an option that is not an Incentive
Stock Option, the Committee shall have the right to require that
the individual exercising the option to remit to the Company an
amount sufficient to satisfy any federal, state, or local
withholding tax requirements (or makes other arrangements
satisfactory to the Company with regard to such taxes) prior to
the delivery of any Common Stock pursuant to the exercise of the
option. In the case of an Incentive Stock Option, if at the time
the Incentive Stock Option is exercised the Committee determines
that under applicable law and regulations the Company could be
liable for the withholding of any federal or state tax with
respect to a disposition of the
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Common Stock received upon exercise, the Committee may require as
a condition of exercise that the individual exercising the
Incentive Stock Option agree (i) to inform the Company promptly
of any disposition (within the meaning of Section 422 (a) (1) of
the Code and the regulations thereunder) of Common Stock received
upon exercise, and (ii) to give such security as the Committee
deems adequate to meet the potential liability of the Company for
the withholding of tax, and to augment such security from time to
time in any amount reasonably deemed necessary by the Committee
to preserve the adequacy of such security.
7.3.4.6 In the case of an option that is exercised by an
individual that is subject to taxation in a foreign jurisdiction,
the Committee shall have the right to require the individual
exercising the option to remit to the Company an amount
sufficient to satisfy any federal or withholding requirement of
that foreign jurisdiction (or make other arrangements
satisfactory to the Company with regard to such taxes prior to
the delivery of any Common Stock pursuant to the exercise of the
option).
7.3.5 PAYMENT FOR AND DELIVERY OF STOCK. The shares of stock
purchased on any exercise of an option granted hereunder shall be paid
for in full in cash or, if permitted by the terms of the option, in
shares of unrestricted Common Stock at the time of such exercise or,
if so permitted, a combination of such cash and Common Stock. A
Participant shall not have the rights of a stockholder with respect to
awards under the Plan except as to stock actually issued to him.
7.3.6 LISTING OF STOCK, WITHHOLDING AND OTHER LEGAL REQUIREMENTS.
The Company shall not be obligated to deliver any stock until all
federal and state laws and regulations which the Company may deem
applicable have been complied with, nor, in the event the outstanding
Common Stock is at the time listed upon any stock exchange, until the
stock to be delivered has been listed or authorized to be added to the
list upon official notice of issuance to such exchange. In addition,
if the shares of stock subject to any option have not been registered
in accordance with the Securities Act of 1933, as amended, the Company
may require the person or persons who wishes or wish to exercise such
option to make such representation or agreement with respect to the
sale of stock acquired on exercise of the option as will be
sufficient, in the opinion of the Company's counsel, to avoid
violation of said Act, and may also require that the certificates
evidencing said stock bear an appropriate restrictive legend.
7.3.7 NON-TRANSFERABILITY OF OPTIONS. No option may be
transferred by the Participant otherwise than by will, by the laws of
descent and distribution or pursuant to a qualified domestic relations
order, and during the Participant's lifetime the option may be
exercised only by him or her; PROVIDED, HOWEVER, that the Board of
Directors or the Committee, as applicable, in its discretion, may
allow for transferability of non-qualified stock options by the
Participant to
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"Immediate Family Members." Immediate Family Members means children,
grandchildren, spouse or common law spouse, siblings or parents of the
Participant or to bona fide trusts, partnerships or other entities
controlled by and of which the beneficiaries are Immediate Family
Members of the Participant. Any option grants that are transferable
are further conditioned on the Participant and Immediate Family
Members agreeing to abide by the Company's then current stock option
transfer guidelines.
7.3.8 DEATH. If a Participant dies at a time when he is entitled
to exercise an Incentive Stock Option, then at any time or times
within three years after his death such Incentive Stock Option may be
exercised, as to all or any of the shares which the Participant was
entitled to purchase thereunder immediately prior to his death, by his
executor or administrator or the person or persons to whom the
Incentive Stock Option is transferred by will or the applicable laws
of descent and distribution, and except as so exercised such Incentive
Stock Option shall expire at the end of such three-year period. In no
event, however, may any Incentive Stock Option granted under the Plan
be exercised after the expiration of ten years (five years in the case
of an Incentive Stock Option granted to a Ten Percent Stockholder)
from the date the Incentive Stock Option was granted.
7.3.9 TERMINATION OF EMPLOYMENT. If the employment of a
Participant terminates for any reason other than his death, all
options held by the Participant shall thereupon expire on the date of
termination unless the option by its terms, or the Committee or the
Board of Directors by resolution, shall allow the Participant to
exercise any or all of the options held by him after termination. In
the case of an Incentive Stock Option, the Incentive Stock Option
shall in any event expire at the end of three months after such
termination of employment, or after the expiration of ten years (five
years in the case of an Incentive Stock Option granted to a Ten
Percent Stockholder) from the date the Incentive Stock Option was
granted, whichever occurs first. If the Committee or the Board of
Directors so decides, an option may provide that a leave of absence
granted by the Company or Subsidiary is not a termination of
employment for the purpose of this subsection 7.3.9, and in the
absence of such a provision the Committee may in any particular case
determine that such a leave of absence is not a termination of
employment for such purpose. The Committee shall also determine all
other matters relating to continuous employment.
7.3.10 CANCELLATION AND RESCISSION OF OPTIONS. The following
provisions of this Section 7.3.10 shall apply to options granted on or
after July 1, 1998 to (i) Participants who are classified by the
Company or a Subsidiary as an executive officer, senior officer, or
officer (collectively, an "Officer") of the Company or a Subsidiary;
and (ii) certain other Participants designated by the Committee or the
Board of Directors to be subject to the terms of this Section 7.3.10
(such designated Participants together with Officers referred to
collectively as "Senior Participants"). The Committee or the Board of
Directors may cancel, rescind,
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suspend or otherwise limit or restrict any unexpired option at any
time if the Senior Participant engages in "Detrimental Activity" (as
defined below). Furthermore, in the event a Senior Participant engages
in Detrimental Activity at any time prior to or during the six months
after any exercise of an option, 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 Senior Participant to (i) deliver and
transfer to the Company the shares of Common Stock received by the
Senior Participant upon such exercise, (ii) pay to the Company an
amount equal to any realized gain received by the Senior Participant
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 Senior Participant by the Company. As
used in this subsection 7.3.10, "Detrimental Activity" shall include:
(i) the failure to comply with the terms of the Plan or certificate or
agreement evidencing the option; (ii) the failure to comply with any
term set forth in the Company's Key Employee Agreement (irrespective
of whether the Senior Participant is a party to the Key Employee
Agreement); (iii) any activity that results in termination of the
Senior Participant's employment for cause; (iv) a violation of any
rule, policy, procedure or guideline of the Company; or (v) the Senior
Participant being convicted of, or entering a guilty plea with respect
to a crime whether or not connected with the Company.
7.3.11 JURISDICTION AND GOVERNING LAW. The parties submit to the
exclusive jurisdiction and venue of the federal or state courts of the
Commonwealth of Massachusetts, County of Middlesex, to resolve issues
that may arise out of or relate to the Plan or the same subject
matter. The Plan shall be governed by the laws of the Commonwealth of
Massachusetts, excluding its conflicts or choice of law rules or
principles that might otherwise refer construction or interpretation
of this Plan to the substantive law of another jurisdiction.
7.4 AUTHORITY OF THE COMMITTEE. The Committee shall have the
authority, either generally or in particular instances, to waive compliance
by a Participant with any obligation to be performed by him under an option
and to waive any condition or provision of an option, except that the
Committee may not (i) increase the total number of shares covered by any
Incentive Stock Option (except in accordance with Section 8), (ii) reduce
the option price per share of any Incentive Stock Option (except in
accordance with Section 8) or (iii) extend the term of any Incentive Stock
Option to more than ten years, subject, however, to the provisions of
Section 10.
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8. CHANGES IN STOCK.
In the event of a stock dividend, stock split or other change in corporate
structure or capitalization affecting the Common Stock that becomes effective
after the adoption of the Plan by the Board of Directors, the Committee shall
make appropriate adjustments in (i) the number and kind of shares of stock on
which options may thereafter be granted hereunder, (ii) the number and kind of
shares of stock remaining subject to each option outstanding at the time of such
change and (iii) the option price. The Committee's determination shall be
binding on all persons concerned. 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), any
option granted hereunder shall pertain and apply to the securities which a
holder of the number of shares of stock of the Company then subject to the
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 every option hereunder 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 Participants replacement
options (which, in the case of Incentive Stock Options, satisfy, in the
determination of the Committee, the requirements of Section 424 of the Code) on
such corporation's stock which will to the extent possible preserve the value of
the outstanding options or shall make the outstanding options fully exercisable
at least 20 days before the effective date of any such dissolution, liquidation,
merger or consolidation. The existence of the Plan shall not prevent any such
change or other transaction and no Participant thereunder shall have any right
except as herein expressly set forth.
9. EMPLOYMENT RIGHTS.
Neither the adoption of the Plan nor any grant of options confers upon any
employee of the Company or a Subsidiary any right to continued employment with
the Company or a Subsidiary, as the case may be, nor does it interfere in any
way with the right of the Company or a Subsidiary to terminate the employment of
any of its employees at any time.
10. DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION.
The Committee or the Board of Directors may at any time discontinue
granting options under the Plan and, with the consent of the Participant, may at
any time cancel an existing option in whole or in part and grant another option
to the Participant for such number of shares as the Committee or the Board of
Directors specifies. The Board of Directors may at any time or times amend the
Plan for the purpose of satisfying the
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requirements of any changes in applicable laws or regulations or for any other
purpose which may at the time be permitted by law or may at any time terminate
the Plan as to any further grants of options, provided that no such amendment
shall without the approval of the stockholders of the Company (a) increase the
maximum number of shares available under the Plan, (b) change the group of
employees eligible to receive options under the Plan, (c) reduce the exercise
price of outstanding incentive options or reduce the price at which incentive
options may be granted, (d) extend the time within which options may be granted,
(e) alter the Plan in such a way that incentive options granted or to be granted
hereunder would not be considered incentive stock options under Section 422 of
the Code, or (f) amend the provisions of this Section 10, and no such amendment
shall adversely affect the rights of any employee (without his consent) under
any option previously granted.
11. EFFECTIVE DATE.
The Plan became effective immediately upon its approval by the stockholders
of the Company at the Annual Meeting on May 12, 1993.
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