As filed with the Securities and Exchange Commission on August 5, 2015
Registration No. 333-____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EMC CORPORATION
(Exact name of registrant as specified in its charter)
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Massachusetts | | 04-2680009 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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176 South Street Hopkinton, Massachusetts (Address of Principal Executive Offices) | | 01748 (Zip Code) |
Virtustream Group Holdings, Inc. 2009 Equity Incentive Plan, as amended
(Full title of the plan)
Paul T. Dacier, Esq.
Executive Vice President and General Counsel
EMC Corporation
176 South Street
Hopkinton, Massachusetts 01748
(Name and address of agent for service)
(508) 435-1000
(Telephone number, including area code, for Agent for Service)
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x | | Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) | | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered (1) | Amount to be registered (2) | Proposed maximum offering price per share (3) | Proposed maximum aggregate offering price (3) | Amount of registration fee (3) |
Common Stock, par value $0.01 per share | 425,000 | N/A | $1,557,081.29 | $180.93 |
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(1) | This Registration Statement covers 425,000 shares of common stock, par value $0.01 per share (“Common Stock”), of the Registrant that may be issued pursuant to awards assumed by the Registrant and granted under the Virtustream Group Holdings, Inc. 2009 Equity Incentive Plan, as amended. |
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(2) | Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock in respect of the securities identified above that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction. |
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(3) | Pursuant to, and in accordance with, Securities Act Rules 457(h)(1) and 457(c), the proposed maximum aggregate offering price and the registration fee were calculated (a) with respect to outstanding options to purchase 419,868 shares of Common Stock, upon the basis of the price at which such options may be exercised, and (b) with respect to 5,132 shares of Common Stock subject to restricted stock awards, upon the basis of the average of the high and low per share prices of Common Stock as reported on the New York Stock Exchange on August 4, 2015. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering 425,000 shares of the Registrant’s Common Stock that may be issued pursuant to awards assumed by the Registrant and granted under the Virtustream Group Holdings, Inc. 2009 Equity Incentive Plan, as amended.
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 Securities and Exchange Commission (the “Commission”):
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(a) | the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, as filed with the Commission on February 27, 2015; |
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(b) | the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, as filed with the Commission on May 4, 2015; |
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(c) | the Registrant’s Current Reports on Form 8-K, as filed with the Commission on January 12, 2015 (File No. 001-09853; Film No. 15520665); January 29, 2015 (File No. 001-09853; Film No. 15556721) (solely with respect to Item 2.05); March 23, 2015 (File No. 001-09853; Film No. 15719256); May 1, 2015 (File No. 001-09853; Film No. 15824317); May 8, 2015 (File No. 001-09853; Film No. 15846425); May 26, 2015 (File No. 001-09853; Film No. 15888152); and July 9, 2015 (File No. 001-09853; Film No. 15981626). |
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(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, as amended (the “Exchange Act”) 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 Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, 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, Executive Vice President and General Counsel of the Registrant. Mr. Dacier holds restricted stock units and options to purchase Common Stock, owns shares of Common Stock and is eligible to participate in the Registrant’s equity plans.
Item 6. Indemnification of Directors and Officers.
Section 2.02(b)(4) of the Massachusetts Business Corporation Act (the “MBCA”) provides that a Massachusetts corporation may, in its articles of organization, eliminate or limit the personal liability of a director to the corporation for monetary damages for breach of fiduciary duty notwithstanding any law to the contrary, except for liability for (i) any breach of duty of loyalty to the corporation or to the shareholders, (ii) acts or omissions not in good faith, intentional misconduct or knowing violations of law, (iii) certain improper distributions or (iv) any transaction from which the director derived an improper personal benefit.
Section 8.51 of the MBCA authorizes a Massachusetts corporation to indemnify a director of the corporation against liability in such capacity if the director (i) conducted himself in good faith, (ii) reasonably believed his conduct was in, or at least not opposed to, the best interests of the corporation, and (iii) in the case of a criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Section 8.51 also allows for indemnification of a director if the liability in question was eliminated by the corporation’s articles of organization pursuant to Section 2.02(b)(4) of the MBCA. Section 8.52 of the
MBCA requires that a Massachusetts corporation indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director was a party because he was a director of the corporation.
Section 8.53 of the MBCA authorizes a Massachusetts corporation to pay for, in advance, a director’s reasonable expenses in a proceeding if, among other things, the director delivers to the corporation (i) a written confirmation of his good faith belief that he has met the relevant standard of conduct in Section 8.51 of the MBCA or the proceeding involves conduct for which liability has been eliminated under the corporation’s articles of organization as permitted by Section 2.02(b)(4) of the MBCA, and (ii) a written undertaking to repay any funds advanced if he is not entitled to mandatory indemnification under Section 8.52 and it is ultimately determined, pursuant to procedures further laid out in the MBCA, that he has not met the standard of conduct for under Section 8.51.
Section 8.56 of the MBCA authorizes a corporation to indemnify, and advance expenses to, an officer of the corporation to the same extent as a director, and if such officer is not a director of the corporation, or if such officer is also a director but the basis on which he is made a party to the proceeding is an act or omission solely as an officer, to such further extent as may be provided in the corporation’s articles of organization, bylaws, board resolutions or contracts provided that the officer may not be indemnified for acts or omissions not in good faith, intentional misconduct or knowing violations of law. Section 8.56 of the MBCA requires that a Massachusetts corporation indemnify an officer of the corporation who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which such officer was a party because he was an officer of the corporation.
The Registrant’s Restated Articles of Organization (the “Articles”) include a provision that eliminates the personal liability of each of its directors to the Registrant or its shareholders 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, (i) for any breach of the director’s duty of loyalty to the Registrant 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 the Massachusetts Business Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
The Registrant’s Amended and Restated Bylaws (the “Bylaws”) provide that 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, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably incurred by such director or officer in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which such director or officer may be involved or with which such director or officer may be threatened, while in office or thereafter, by reason of such individual being or having been such a director or officer, 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 (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 such individual’s 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: (i) by a disinterested majority of the directors then in office; or (ii) 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 such individual’s action was in the best interests of the Registrant; or (iii) 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 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 Bylaws. The right of indemnification provided under the Bylaws shall not be exclusive of or affect any other rights to which any director or officer may be entitled.
The Registrant has entered into indemnification agreements with each of its directors and executive officers providing for the indemnification of such director or executive officer to the extent legally permissible and for the payment of any and all expenses, including counsel fees, paid or 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 executive
officer of the Registrant.
The foregoing summaries are necessarily subject to the complete text of the MBCA, the Articles, the Bylaws and the agreements referred to above and are qualified in their entirety by reference thereto.
It is the opinion of the Commission that indemnification of directors and officers for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”), is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
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:
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5.1 | Opinion of Paul T. Dacier, Executive Vice President and General Counsel to the Registrant, as to the legality of the securities being registered. |
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23.1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. |
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23.2 | Consent of Paul T. Dacier, Executive Vice President and General Counsel to the Registrant (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). |
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24.1 | Power of Attorney (included on the signature pages to this Registration Statement). |
Item 9. Undertakings.
The Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(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 end 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
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(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 in the Registration Statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(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 pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act, 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; and
(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.
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(b) | That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 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. |
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(c) | Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. |
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized in the Town of Hopkinton, Commonwealth of Massachusetts, on August 5, 2015.
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EMC CORPORATION |
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By: | /s/ Paul T. Dacier |
| Paul T. Dacier |
| Executive Vice President and General Counsel |
POWER OF ATTORNEY
Each person whose signature appears below hereby severally constitutes and appoints Joseph M. Tucci, Zane Rowe and Paul T. Dacier, and each of them singly, with the power to act without the other, as attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendment to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done 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 indicated as of August 5, 2015.
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Signatures | | Title |
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/s/ Joseph M. Tucci | | Chairman and Chief Executive Officer |
Joseph M. Tucci | | (Principal Executive Officer) |
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/s/ Zane Rowe | | Chief Financial Officer |
Zane Rowe | | (Principal Financial Officer) |
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/s/ Denis G. Cashman | | Chief Financial Officer, EMC Information Infrastructure and Chief Accounting Officer |
Denis G. Cashman | | (Principal Accounting Officer) |
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/s/ José E. Almeida | | Director |
José E. Almeida | | |
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/s/ Michael W. Brown | | Director |
Michael W. Brown | | | |
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/s/ Donald J. Carty | | Director |
Donald J. Carty | | |
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/s/ Randolph L. Cowen | | Director |
Randolph L. Cowen | | | |
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/s/ James S. DiStasio | | Director |
James S. DiStasio | | | |
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/s/ John R. Egan | | Director |
John R. Egan | | | |
[Signature page to Registration Statement on Form S-8]
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/s/ William D. Green | | Director |
William D. Green | | |
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/s/ Edmund F. Kelly | | Director |
Edmund F. Kelly | | |
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/s/ Judith A. Miscik | | Director |
Judith A. Miscik | | | |
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/s/ Paul Sagan | | Director |
Paul Sagan | | | |
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/s/ David N. Strohm | | Director |
David N. Strohm | | | |
[Signature page to Registration Statement on Form S-8]
EXHIBIT INDEX
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5.1 | Opinion of Paul T. Dacier, Executive Vice President and General Counsel to the Registrant, as to the legality of the securities being registered. |
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23.1 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. |
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23.2 | Consent of Paul T. Dacier, Executive Vice President and General Counsel to the Registrant (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). |
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24.1 | Power of Attorney (included on the signature pages to this Registration Statement). |
Exhibit 5.1
August 5, 2015
EMC Corporation
176 South Street
Hopkinton, MA 01748
Ladies and Gentlemen:
I, as Executive Vice President and General Counsel of EMC Corporation, a Massachusetts corporation (the “Company”), am issuing this opinion in connection with the registration statement on Form S-8 (the “Registration Statement”) being filed by the Company with the Securities and Exchange Commission (the “Commission”) on the date hereof for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), an aggregate of 425,000 shares (collectively, the “Shares”) of common stock, par value $0.01 per share, of the Company, which may be issued pursuant to awards assumed by the Company and granted under the Virtustream Group Holdings, Inc. 2009 Equity Incentive Plan, as amended (the “Plan”).
In connection herewith, I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of (i) the Registration Statement; (ii) the Company’s Restated Articles of Organization; (iii) such records of the corporate proceedings of the Company as I have deemed necessary or appropriate as a basis for the opinion set forth herein; and (iv) such certificates of officers of the Company and others and such other records and documents as I have deemed necessary or appropriate as a basis for the opinion set forth herein.
In my examination, I have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such copies. As to any facts material to the opinion expressed herein which I have not independently established or verified, I have relied upon statements and representations of other officers and representatives of the Company and others.
I am admitted to the Bar of The Commonwealth of Massachusetts and do not purport to be an expert on, or express any opinion concerning, any law other than the substantive laws of The Commonwealth of Massachusetts.
Based upon and subject to the foregoing, I am of the opinion that the Shares have been duly authorized for issuance and, when issued by the Company pursuant to and in accordance with the Plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished by me as Executive Vice President and General Counsel of the Company in connection with the filing of the Registration Statement and is not to be used, circulated or quoted for any other purpose or otherwise referred to or relied upon by any other person without the prior express written permission of the Company other than in connection with the offer and sale of Shares while the Registration Statement is in effect.
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Very truly yours, |
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/s/ Paul T. Dacier |
Paul T. Dacier |
Executive Vice President and General Counsel |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 27, 2015 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in EMC Corporation’s Annual Report on Form 10-K for the year ended December 31, 2014.
/s/PricewaterhouseCoopers LLP
Boston, Massachusetts
August 5, 2015
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