AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 7, 1999
REGISTRATION NO. 333-86659
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
EMC CORPORATION
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS
(State or other Jurisdiction
of Incorporation or Organization)
04-2680009
(I.R.S. Employer
Identification No.)
35 PARKWOOD DRIVE
HOPKINTON, MASSACHUSETTS 01748
(508) 435-1000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DATA GENERAL CORPORATION EMPLOYEE STOCK OPTION PLAN
DATA GENERAL CORPORATION RESTRICTED STOCK OPTION PLAN
DATA GENERAL CORPORATION 1998 EMPLOYEE STOCK OPTION PLAN
DATA GENERAL CORPORATION 1997 NON-OFFICER EMPLOYEE STOCK OPTION PLAN
DATA GENERAL CORPORATION 1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plans)
PAUL T. DACIER, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
EMC CORPORATION
35 PARKWOOD DRIVE
HOPKINTON, MASSACHUSETTS 01748
(508) 435-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
- - -------------------
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4
Registration Statement pursuant to the procedure described herein.
See "Introductory Statement Not Forming Part of Prospectus."
CALCULATION OF REGISTRATION FEE
===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED SHARE PRICE REGISTRATION FEE(2)
- - -------------------------------------------------------------------------------------------------------------------
Common stock, par value $.01 1,700,000 $35.8037(1) $60,866,211.79 $16,068.68
per share
===================================================================================================================
(1) As set forth in Rule 457(h)(1) under the Securities Act of 1933, as
amended, based on the prices at which options to acquire the
Registrant's common stock, par value $.01 per share, may be exercised,
which prices range from $3.40 to $106.61.
(2) Estimated in accordance with Rule 457(h)(1) under the Securities Act
of 1933, as amended, solely for the purpose of determining the
registration fee. The entire amount of the registration fee has been
offset by amounts previously paid by Data General Corporation in
connection with the filing of preliminary proxy materials by Data
General Corporation with the Commission on August 20, 1999 as
permitted by Rule 457(b). Accordingly, no additional fee has been
paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
INTRODUCTORY STATEMENT NOT FORMING PART OF PROSPECTUS
EMC Corporation ("EMC") hereby amends its Registration Statement on
Form S-4 (No. 333-86659), by filing this Post-Effective Amendment No. 2 on
Form S-8 relating to shares of the common stock of EMC issuable upon the
exercise of stock options granted under the Data General Corporation
Employee Stock Option Plan, the Data General Corporation Restricted Stock
Option Plan, the Data General Corporation 1998 Employee Stock Option Plan,
the Data General Corporation 1997 Non-Officer Employee Stock Option Plan
and the Data General Corporation 1994 Non-Employee Director Stock Option
Plan (the "Plans").
On October 12, 1999, Emerald Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of EMC, was merged into Data
General Corporation, a Delaware corporation ("Data General"). As a result
of such merger, Data General became a wholly owned subsidiary of EMC, and
each outstanding share of common stock of Data General was converted into
.3125 of a share of EMC common stock. As a result of the terms of the
merger, the options previously granted under the Plans will no longer be
exercisable for shares of Data General common stock but, instead, upon
exercise thereof, the holder will be entitled to receive shares of EMC
common stock, with the number of shares and exercise price thereof adjusted
accordingly pursuant to the merger agreement dated as of August 6, 1999 by
and among EMC, Data General and Emerald Merger Corporation.
The shares to which this Post-Effective Amendment No. 2 relates
have been included in the shares which were registered by EMC on its
Registration Statement on Form S-4 (Registration No. 333-86659).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by EMC Corporation (the
"Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference herein:
(1) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998;
(2) the Registrant's Current Report on Form 8-K filed on
February 25, 1999;
(3) the Registrant's Definitive Proxy Statement on Schedule 14A
filed on March 19, 1999;
(4) the Registrant's Current Report on Form 8-K filed on May 6,
1999;
(5) the Registrant's Quarterly Report on Form 10-Q for the
period ended March 31, 1999;
(6) the Registrant's Current Report on Form 8-K filed on August
11, 1999;
(7) the Registrant's Quarterly Report on Form 10-Q for the
period ended June 30, 1999;
(8) the Registrant's Current Report on Form 8-K filed on October
20, 1999;
(9) the Registrant's Current Report on Form 8-K/A filed on
November 4, 1999;
(10) the Registrant's Quarterly Report on Form 10-Q for the
period ended September 30, 1999;
(11) the description of the Registrant's common stock set forth
in the Registrant's Registration Statement on Form 8-A dated
March 4, 1988, including any amendments or reports filed for
the purpose of updating such description;
(12) Data General Corporation's Annual Report on Form 10-K for
the fiscal year ended September 26, 1998;
(13) Data General Corporation's Quarterly Report on Form 10-Q for
the period ending December 26, 1998;
(14) Data General Corporation's Quarterly Report on Form 10-Q for
the period ending March 27, 1999; and
(15) Data General Corporation's Quarterly Report on Form 10-Q for
the period ending June 26, 1999.
All documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all securities
then remaining unsold under this Registration Statement, shall be deemed to
be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superceded for
purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
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. The Registrant's financial statements included in
the Annual Report on Form 10-K have not been restated to reflect the
acquisition of Data General Corporation on October 12, 1999.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws
authorizes a corporation to indemnify any director, officer, employee or
other agent of the corporation to whatever extent specified in or
authorized by (i) the articles of organization, (ii) a by-law adopted by
the stockholders or (iii) a vote adopted by the holders of a majority of
the shares of stock entitled to vote on the election of directors.
Article 6(k) of the Registrant's Restated Articles of
Organization, as amended, provides as follows:
No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director to the extent provided by applicable law
notwithstanding any provision of law imposing such liability; provided,
however, that to the extent, and only to the extent, required by Section
13(b) (1 1/2) or any successor provision of the Massachusetts Business
Corporation Law, this provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under sections 61 or 62 of the Massachusetts Business
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. This provision shall not be construed
in any way so as to impose or create liability. The foregoing provisions of
this Article 6(k) shall not eliminate the liability of a director for any
act or omission occurring prior to the date on which this Article 6(k)
becomes effective. No amendment to or repeal of this Article 6(k) shall
apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omission of
such director occurring prior to such amendment or repeal.
In addition, Section 7 of the Registrant's Amended and
Restated By-Laws, entitled "Indemnification of Directors and Officers,"
provides as follows:
The corporation shall, to the extent legally permissible,
indemnify each of its directors and officers (including persons who act at
its request as directors, officers or trustees of another organization or
in any capacity with respect to any employee benefit plan) against all
liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees,
reasonably incurred by 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
corporation (any person serving another organization in one or more of the
indicated capacities at the request of the corporation who shall have acted
in good faith in the reasonable belief that his action was in the best
interests of such other organization to be deemed as having acted in such
manner with respect to the corporation) or, to the extent that such matter
related to service with respect to any employee benefit plan, in the best
interest of the participants or beneficiaries of such employee benefit
plan; provided, however, that as to any matter disposed of by a compromise
payment by such director or officer, pursuant to a consent decree or
otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless such compromise shall be approved as in
the best interests of the corporation, after notice that it involves such
indemnification: (a) by a disinterested majority of the directors then in
office; or (b) by a majority of the disinterested directors then in office,
provided that there has been obtained an opinion in writing of independent
legal counsel to the effect that such director or officer appears to have
acted in good faith in the reasonable belief that his action was in the
best interests of the corporation; or (c) by the holders of a majority of
the outstanding stock at the time entitled to vote for directors, voting as
a single class, exclusive of any stock owned by any interested director or
officer. Expenses, including counsel fees, reasonably incurred by any
director or officer in connection with the defense or disposition of any
such action, suit or other proceeding may be paid from time to time by the
corporation in advance of the final disposition thereof upon receipt of an
undertaking by such director or officer to repay the amounts so paid to the
corporation if it is ultimately determined that indemnification for such
expenses is not authorized under this Section 7. The right of
indemnification hereby provided shall not be exclusive of or affect any
other rights to which any director or officer may be entitled. As used in
this Section, the terms "director" and "officer" include their respective
heirs, executors and administrators, and an "interested" director or
officer is one against whom in such capacity the proceedings in question or
another proceeding on the same or similar grounds is then pending. Nothing
contained in this Section shall affect any rights to indemnification to
which corporate personnel other than directors or officers may be entitled
by contract or otherwise under law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
and of the estimated maximum offering range may be
reflected in the form of Prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) 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 set forth in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
The undersigned Registrant hereby undertakes 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 this 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.
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 provisions described
under Item 6 above, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
EMC Corporation 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 this 7th day of December,
1999.
EMC CORPORATION
By: /s/ Paul T. Dacier
---------------------------
Paul T. Dacier
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons
in the capacities and on the date indicated.
SIGNATURE TITLE
/s/ Richard J. Egan* Chairman of the Board of Directors
__________________________________ (Principal Executive Officer)
Richard J. Egan
/s/ Michael C. Ruettgers* President, Chief Executive Officer and
___________________________________ Director
Michael C. Ruettgers
/s/ Colin G. Patteson* Senior Vice President, Chief
___________________________________ Administrative Officer and
Colin G. Patteson Treasurer (Principal Financial Officer)
/s/ William J. Teuber, Jr.* Vice President and Chief Financial
____________________________________ Officer (Principal Accounting
William J. Teuber, Jr. Officer)
/s/ Michael J. Cronin* Director
____________________________________
Michael J. Cronin
/s/ John R. Egan* Director
____________________________________
John R. Egan
/s/ Maureen E. Egan* Director
____________________________________
Maureen E. Egan
/s/ W. Paul Fitzgerald* Director
____________________________________
W. Paul Fitzgerald
/s/ Joseph F. Oliveri* Director
___________________________________
Joseph F. Oliveri
* By: /s/ Paul T. Dacier
__________________________
Paul T. Dacier
Attorney-in-Fact
Dated: December 7, 1999
EXHIBIT INDEX
Exhibit
Number Description
-------- -----------
4.1 Data General Corporation Employee Stock Option Plan(1)
4.2 Data General Corporation Restricted Stock Option Plan(2)
4.3 Data General Corporation 1998 Employee Stock Option Plan(3)
4.4 Data General Corporation 1997 Non-Officer Employee Stock
Option Plan(4)
4.5 Data General Corporation 1994 Non-Employee Director Stock
Option Plan(5)
5.1 Opinion of Paul T. Dacier, Esq., Vice President and General
Counsel of EMC Corporation, as to the legality of the
securities being registered(6)
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Paul T. Dacier, Esq., Vice President and General
Counsel of EMC Corporation (contained in the opinion filed
as Exhibit 5.1 to this Registration Statement on Form S-8)
24.1 Power of Attorney(6)
- - --------------
1 Incorporated by reference to Appendix A to the prospectus included in
Data General Corporation's Registration Statement on Form S-8 (Reg.
No. 333-58237).
2 Incorporated by reference to Appendix A to the prospectus included in
Data General Corporation's Registration Statement on Form S-8 (Reg.
No. 333-19759).
3 Incorporated by reference to Exhibit 4.1 to Data General
Corporation's Registration Statement on Form S-8 (Reg. No.
333-69559).
4 Incorporated by reference to Exhibit 10(ff) to Data General
Corporation's Annual Report on Form 10-K for the fiscal year ended
September 27, 1999.
5 Incorporated by reference to Appendix A to the prospectus included in
Data General Corporation's Registration Statement on Form S-8 (Reg.
No. 333-53039).
6 Previously filed with EMC Corporation's Registration Statement on
Form S-4 (Registration No. 333-86659).