Exhibit 10.4
EMC CORPORATION
AMENDED AND RESTATED 1989
EMPLOYEE STOCK PURCHASE PLAN,
as amended and restated as of
July 1, 2009
Section 1. Purpose of
Plan
The EMC Corporation Amended and
Restated 1989 Employee Stock Purchase Plan (the “Plan”)
is intended to provide a method by which eligible employees of EMC
Corporation and its subsidiaries (collectively, the
“Company”) may use voluntary, systematic payroll
deductions to purchase the Company’s common stock, $.01 par
value, (“stock”) and thereby acquire an interest in the
future of the Company. For purposes of the Plan, a subsidiary is
any corporation in which the Company owns, directly or indirectly,
stock possessing 50% or more of the total combined voting power of
all classes of stock unless the Board of Directors of the Company
(the “Board of Directors”) determines that employees of
a particular subsidiary shall not be eligible.
Section 2. Options to Purchase
Stock
Under the Plan as now amended, no
more than 153,000,000 shares are available for purchase (subject to
adjustment as provided in Section 16) pursuant to the exercise
of options (“options”) granted under the Plan to
employees of the Company (“employees”). The stock to be
delivered upon exercise of options under the Plan may be either
shares of the Company’s authorized but unissued stock, or
shares of reacquired stock, as the Board of Directors shall
determine.
Section 3. Eligible
Employees
Except as otherwise provided in
Section 20, each employee who has completed three months or
more of continuous service in the employ of the Company shall be
eligible to participate in the Plan.
Section 4. Method of
Participation
The periods January 1 to
June 30 and July 1 to December 31 of each year shall
be option periods. Each person who will be an eligible employee on
the first day of any option period may elect to participate in the
Plan by executing and delivering, at least one business day prior
to such day, a payroll deduction authorization in accordance with
Section 5. Such employee shall thereby become a participant
(“participant”) on the first day of such option period
and shall remain a participant until his or her participation is
terminated as provided in the Plan.
Section 5. Payroll Deductions
The payroll deduction authorization
shall request withholding, at a rate of not less than 2% nor more
than 15% from the participant’s compensation (subject to a
maximum of $7,500 per option period), by means of substantially
equal payroll deductions over the option period; provided ,
however , that in the event any amount remaining in a
participant’s withholding account at the end of an option
period (which would be equal to a fractional share) is rolled over
to the opening balance in a participant’s withholding account
for the next option period pursuant to Section 8 below (a
“rollover”), such amount will be applied to the last
payroll deduction for the next option period, thereby reducing the
amount of that payroll deduction; further provided that the
maximum of $7,500 per option period shall be reduced by the amount
of any rollover. For purposes of the Plan,
“compensation” shall mean all cash compensation paid to
the participant by the Company and includes items such as salary,
wages, overtime, and incentive compensation. Compensation excludes
car allowances, transit payments, relocation assistance,
reimbursements (such as travel expenses, financial planning,
tuition assistance, adoption assistance and similar reimbursements
and advances), imputed income, cost-of-living allowances, tax
gross-ups, nonqualified deferred compensation plan payments,
severance or termination pay, third party sick pay, income relating
to equity or equity-related compensation, special cash awards or
bonuses (such as patent awards, gold, silver and bronze awards and
other recognition awards, referral bonuses, contests pay,
President’s Club awards and other similar awards), and other
irregular and special payments that are non-recurring. A
participant may elect to change the withholding rate of his or her
payroll deduction authorization by written notice delivered to the
Company at least one business day prior to the first day of the
option period as to which the change is to be effective. Following
delivery to the Company of any payroll deduction authorization or
any election to change the withholding rate of a payroll deduction
authorization, appropriate payroll deductions or changes thereto
shall commence as soon as reasonably practicable. All amounts
withheld in accordance with a participant’s payroll deduction
authorization shall be credited to a withholding account for such
participant.
Section 6. Grant of
Options
Each person who is a participant on
the first day of an option period shall as of such day be granted
an option for such period. Such option shall be for the number of
shares of stock to be determined by dividing (a) the balance
in the participant’s withholding account on the last day of
the option period by (b) the purchase price per share of the
stock determined under Section 7, and eliminating any
fractional share from the quotient. In the event that the number of
shares then available under the Plan is otherwise insufficient, the
Company shall reduce on a substantially proportionate basis the
number of shares of stock receivable by each participant upon
exercise of his or her option for an option period and shall return
the balance in a participant’s withholding account to such
participant. Notwithstanding the foregoing, in no event may a
participant purchase more than 750 shares of stock in any one
option period under the Plan.
2
Section 7. Purchase Price
The purchase price of stock issued
pursuant to the exercise of an option shall be 85% of the fair
market value of the stock on the last business day of the option
period. “Fair market value” shall mean the fair market
value as determined from time to time by the Board of Directors or,
where appropriate, by the Committee (defined below), taking into
account all information which the Board of Directors, or the
Committee, considers relevant.
Section 8. Exercise of
Options
If an employee is a participant in
the Plan on the last business day of an option period, he or she
shall be deemed to have exercised the option granted to him or her
for that period. Upon such exercise, the Company shall apply the
balance of the participant’s withholding account to the
purchase of the number of whole shares of stock determined under
Section 6, and as soon as practicable thereafter shall issue
and deliver certificates for said shares to the participant. No
fractional shares shall be issued hereunder. Any balance
accumulated in the participant’s withholding account that is
not sufficient to purchase a full share shall be retained in such
account for any subsequent option period, subject to early
withdrawal by the participant pursuant to Section 10. Any
other monies remaining in the participant’s withholding
account after the date of exercise shall be promptly returned to
the participant or his or her beneficiary (as applicable) in
cash.
Notwithstanding anything herein to
the contrary, the Company shall not be obligated to deliver any
shares unless and until, in the opinion of the Company’s
counsel, all requirements of applicable federal and state laws and
regulations (including any requirements as to legends) have been
complied with, nor, if the outstanding stock is at the time listed
on any securities exchange, unless an
