As filed with the Securities and Exchange Commission on February 2, 2007

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-3

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.)

176 South Street

Hopkinton, Massachusetts  01748

(508) 435-1000

(Address, including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

Paul T. Dacier, Esq.

Executive Vice President and General Counsel

EMC Corporation

176 South Street

Hopkinton, Massachusetts  01748

(508) 435-1000

(Name, Address, including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

with a copy to:

Margaret A. Brown, Esq.

Skadden, Arps, Slate, Meagher & Flom LLP

One Beacon Street

Boston, Massachusetts  02108

(617) 573-4800

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: o

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: o

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.    x

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o

CALCULATION OF REGISTRATION FEE

PROSPECTUS

$1,725,000,000 1.75% Convertible Senior Notes due 2011

$1,725,000,000 1.75% Convertible Senior Notes due 2013

On November 17, 2006, we issued $1,725,000,000 in aggregate principal amount of 1.75% senior convertible notes due 2011 (the “2011 notes”) and $1,725,000,000 in aggregate principal amount of 1.75% senior convertible notes due 2013 (the “2013 notes,” and together with the 2011 notes, the “notes”) in a private offering.  This prospectus relates to the resale by various selling securityholders of the notes and shares of our common stock issuable upon conversion of the notes.  We will not receive any of the proceeds from these resales.

Interest is payable on the notes semi-annually in arrears in cash on June 1 and December 1 of each year, beginning June 1, 2007.  The 2011 notes will mature on December 1, 2011.  The 2013 notes will mature on December 1, 2013.  Holders may convert their notes at their option on any day prior to the close of business on the scheduled trading day immediately preceding (i) September 1, 2011, with respect to the 2011 notes, and (ii) September 1, 2013, with respect to the 2013 notes, in each case only under the following circumstances: (1) during the five business-day period after any five consecutive trading-day period (the “measurement period”) in which the price per note of the applicable series for each day of that measurement period was less than  98% of the product of the last reported sale price of our common stock and the conversion rate on each such day; (2) during any calendar quarter after the calendar quarter ending December 31, 2006, if the last reported sale price of our common stock for 20 or more trading days in a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter exceeds 130% of the applicable conversion price in effect on the last trading day of the immediately preceding calendar quarter; or (3) upon the occurrence of specified corporate events.  The notes will be convertible, regardless of the foregoing circumstances, at any time from, and including, September 1, 2011 to, and including, the business day immediately preceding the maturity date of the 2011 notes (in the case of the 2011 notes) and at any time from, and including, September 1, 2013 to, and including, the business day immediately preceding the maturity date of the 2013 notes (in the case of the 2013 notes).

Upon conversion we will pay cash or, at our election, a combination of cash and common stock based on a daily conversion value, as described in this prospectus, calculated on a proportionate basis for each day of the relevant 20-day observation period.  The initial conversion rate for the notes is 62.1978 shares of common stock per $1,000 principal amount of notes, equivalent to a conversion price of approximately $16.08 per share of common stock.  The conversion price will be subject to adjustment in some events but will not be adjusted for accrued interest.  In addition, if a “fundamental change” occurs prior to the maturity date, we will in some cases increase the conversion rate for a holder that elects to convert notes in connection with such fundamental change.

Subject to certain exceptions, holders may require us to repurchase for cash all or part of their notes upon a “designated event” at a price equal to 100% of the principal amount of the notes being repurchased plus any accrued and unpaid interest up to, but excluding, the relevant repurchase date.  We may not redeem the notes prior to maturity.

The notes are our senior unsecured obligations and rank equally with all of our other senior unsecured debt and all of our future senior unsecured debt.  The notes are structurally subordinated to all liabilities of our subsidiaries and are effectively subordinated to our secured indebtedness.

Shares of our common stock are traded on the New York Stock Exchange, or NYSE, under the symbol “EMC”.  On February 1, 2007, the closing sale price of our common stock on the NYSE was $13.76 per share.  The notes are not listed on any securities exchange or included in any automated quotation system.

Investing in the notes or our common stock issuable upon conversion of the notes involves risks that are described in the “Risk Factors” section of this prospectus and the risk factors incorporated herein by reference from our annual and quarterly reports filed with the Securities and Exchange Commission, or SEC.

Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any accompanying prospectus supplement is truthful or complete.  Any representation to the contrary is a criminal offense.

The date of this prospectus is February 2, 2007.

TABLE OF CONTENTS

ADDITIONAL INFORMATION

We file annual, quarterly and special reports, proxy statements and other information with the SEC.  You may read and copy any document we file at the SEC’s public reference room in Washington, D.C.  Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms.  Our SEC filings are also available to the public from the SEC’s website at www.sec.gov.  Our common stock is listed on the NYSE, under the symbol “EMC” and all reports, proxy statements and other information filed by us with the NYSE may be inspected at the NYSE’s offices at 20 Broad Street, New York, New York 10005.

In this document, we “incorporate by reference” the information we file with the SEC, which means that we can disclose important information to you by referring to that information.  The information incorporated by reference is considered to be an important part of this prospectus.  Any statement in a document incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent a statement contained in this prospectus or any other subsequently filed document that is incorporated by reference in this prospectus modifies or supersedes such statement.  We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, (other than information in such future filings deemed, under SEC rules, not to have been filed) after the date of this prospectus and until all of the notes or common stock to which this prospectus relates have been sold by the selling securityholders or this offering is otherwise terminated:

·                  our Annual Report on Form 10-K for the fiscal year ended December 31, 2005, filed on March 6, 2006;

·                  our Quarterly Report on Form 10-Q for the quarter ended March 31, 2006 filed on May 5, 2006, our Quarterly Report on Form 10-Q/A for the quarter ended June 30, 2006 filed on August 10, 2006 and our Quarterly Report on Form 10-Q for the quarter ended September 30, 2006 filed on November 6, 2006;

·                  our Current Reports on Form 8-K, filed on February 16, 2006, February 27, 2006, March 31, 2006, June 29, 2006, June 30, 2006, July 21, 2006, August 8, 2006, September 18, 2006, September 29, 2006, October 17, 2006 (excluding information furnished therein pursuant to Item 2.02 and any exhibits thereto to the extent related to Item 2.02), November 13, 2006, November 14, 2006, November 17, 2006, January 5, 2007 and January 23, 2007 (excluding information furnished therein pursuant to Item 2.02 and any exhibits thereto to the extent related to Item 2.02);

·                  our Proxy Statement on Schedule 14A dated March 20, 2006 filed on March 20, 2006; and

·                  the description of our common stock contained in the Company’s registration statement on Form 8-A filed on March 8, 1988.

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You may request a copy of these filings, at no cost, by writing, emailing or telephoning us at the following address:

EMC Corporation

176 South Street

Hopkinton, Massachusetts 01748-2230

Tel.: (508) 435-1000

Attention: EMC Investor Relations

Email: emc_ir@emc.com

Exhibits to the filings will not be sent, however, unless those exhibits have been specifically incorporated by reference in this prospectus.

You should read the information in this document together with the information in the documents incorporated by reference.

You should rely only upon the information provided in this document or incorporated in this document by reference.  We have not authorized anyone to provide you with different information.  You should not assume that the information in this document, including any information incorporated by reference, is accurate as of any date other than the date indicated on the front cover.

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus and the information incorporated by reference in this prospectus include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act.  The forward-looking statements do not include the impact of any mergers, acquisitions, divestitures or business combinations that may be announced or closed after the date hereof.  Any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements.  Without limiting the foregoing, the words “believes,” “plans,” “intends,” “expects,” “estimates,” “predicts,” “projects,” “anticipates,” “seeks,” “would,” “could,” “will,” “likely,” “goals” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these words.  These forward-looking statements are only predictions and, accordingly, are subject to substantial risks, uncertainties and assumptions.

Our future results may differ materially from our past results and from those projected in the forward-looking statements due to various uncertainties and risks.  Factors that could affect our future operating results and cause actual results to vary materially from the forward-looking statements made or incorporated by reference in this prospectus or that might cause us to modify our plans or objectives include, but are not limited to:

·                  adverse changes in general economic or market conditions;

·                  delays or reductions in information technology spending;

·                  risks associated with acquisitions and investments, including the challenges and costs of integration, restructuring and achieving anticipated synergies;

·                  competitive factors, including but not limited to pricing pressures and new product introductions; the relative and varying rates of product price and component cost declines and the volume and mixture of product and services revenues; component and product quality and availability;

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·                  the transition to new products, the uncertainty of customer acceptance of new product offerings, and rapid technological and market change; insufficient, excess or obsolete inventory;

·                  risks associated with our significant debt, including our ability to fulfill our debt service obligations, repurchase the notes upon a designated event or repay amounts owed upon conversion;

·                  war or acts of terrorism;

·                  the ability to attract and retain highly qualified employees; fluctuating currency exchange rates; risks associated with litigation; and

·                  other one-time events and other important factors disclosed previously and from time to time in our filings with the SEC.

Other factors that may cause our actual results to differ from the forward-looking statements contained herein and that may affect our prospects in general are included under the heading “Risk Factors” in this prospectus and in our filings with the SEC.

We caution you that any forward-looking statement reflects only our belief at the time the statement is made.  Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee our future results, levels of activity, performance or achievements.  Except as required by law, we undertake no obligation to update any of the forward-looking statements to reflect events or developments after the date of this prospectus.

TRADEMARKS

EMC, Captiva, Documentum, LEGATO, Rainfinity, VMware, Network Intelligence and RSA are either registered trademarks or trademarks of EMC Corporation.  Other trademarks referred to in this prospectus or the information incorporated by reference in this prospectus are either registered trademarks or trademarks of their respective owners.

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SUMMARY

This summary does not include all of the information you should consider before deciding to purchase any notes or shares of our common stock.  Please review this entire prospectus and the information incorporated herein by reference, including the risk factors section and our consolidated financial statements and related notes, before you decide to purchase any notes or shares of our common stock.

Except as otherwise indicated in this prospectus or as the context may otherwise indicate, in this prospectus the words “we,” “our,” and “us” refer to EMC Corporation and its subsidiaries.

Our Company

We develop and deliver a wide range of systems, software, services and solutions to help our customers manage growth, minimize risk, increase effectiveness, and maximize the value of information to unleash the true potential of their business.

We work with small, medium and enterprise customers from a variety of industries and government agencies worldwide to build an information infrastructure and implement an information lifecycle management strategy to manage information intelligently based on the information’s changing value to an organization over time.  This infrastructure is comprised of a variety of best-of-breed technologies to store, manage, protect and secure information to collaborate, solve problems, save money, exploit new opportunities, comply with regulations and policies and improve operational results.

To support our customers’ critical business processes, we provide comprehensive systems to store information, taking into account service levels and costs.  Our information management software and solutions empower our customers to capture, manage and leverage structured and unstructured information—documents, images or emails—to support their business processes.  Our virtual infrastructure software helps organizations respond to changing information technology requirements by dynamically altering their computing and storage environments with flexible virtualization technologies.  In addition, our resource management software allows organizations to better understand, manage and automate the operation of their information infrastructure.

We were incorporated in Massachusetts in 1979.  Our corporate headquarters are located at 176 South Street, Hopkinton, Massachusetts, 01748-2230.  Our telephone number is (508) 435-1000.

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The Notes

The following is a brief summary to the notes solely for your convenience.  This summary is not a complete description of the notes.  You should read the full text and more specific details contained elsewhere in this prospectus.  For a more detailed description of the notes and our common stock issuable upon conversion of the notes, see the sections entitled “Description of the Notes” and “Description of Capital Stock” in this prospectus.  With respect to the discussion of the terms of the notes on the cover page, in this summary and in the section entitled “Description of the Notes,” the words “we,” “our,” “us” and the “Company” refer only to EMC Corporation and to not any of its subsidiaries.

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Risk Factors

See “Risk Factors” for a discussion of factors that should be considered with respect to an investment in the notes.

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RISK FACTORS

Before you decide to invest in the notes or our common stock, in addition to the risk factors set forth below, you should carefully consider the risks and other information included or incorporated by reference in this prospectus, including those set forth under Item 1A of our Quarterly Report on Form 10-Q for the quarter ended September 30, 2006 filed November 6, 2006, as the same may be updated from time to time by our future filings under the Exchange Act.  For more information see “Additional Information.”  These risks and uncertainties are not the only ones we face.  Others that we do not know about now, or that we do not now think are important, may also impair our business.  The risks described in this section and included or incorporated by reference in this prospectus could cause our actual results to differ materially from those anticipated.

Risks Related to an Investment in the Notes

Our debt service obligations may adversely affect our cash flow.

While the notes are outstanding, we will have debt service obligations on the notes of approximately $60.4 million per year in interest payments.  If we issue other debt securities in the future, our debt service obligations will increase.  If we are unable to generate sufficient cash to meet these obligations and must instead use our existing cash or investments, we may have to reduce, curtail or terminate other activities of our business.

We intend to fulfill our debt service obligations from cash generated by our operations, if any, and from our existing cash and investments.  We may enter into other senior financial instruments.

Our indebtedness could have significant negative consequences to you.  For example, it could:

·                  increase our vulnerability to general adverse economic and industry conditions;

·                  limit our ability to obtain additional financing;

·                  require the dedication of a substantial portion of any cash flow from operations to the payment of principal of, and interest on, our indebtedness, thereby reducing the availability of such cash flow to fund our growth strategy, working capital, capital expenditures and other general corporate purposes;

·                  limit our flexibility in planning for, or reacting to, changes in our business and our industry; and

·                  place us at a competitive disadvantage relative to our competitors with less debt.

The notes effectively rank junior in right of payment to any future secured debt and the liabilities of our subsidiaries.

The notes are our general, unsecured obligations and effectively rank junior in right of payment to any future secured debt to the extent of the value of the assets securing such debt.  The notes are equal in right of payment with any future unsubordinated, unsecured debt.  We expect from time to time to incur additional indebtedness and other liabilities.

In addition, the notes are not guaranteed by any of our existing or future subsidiaries.  Our subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due with respect to the notes or to make any funds available therefor, whether by dividends, loans or other payments.  As a result, the notes effectively rank junior in right of payment to all existing and future debt and other liabilities, including trade payables, of our subsidiaries.  As of September 30, 2006, our subsidiaries had approximately $2.1 billion in outstanding liabilities, including trade and other payables but excluding intercompany amounts.

The conditional conversion feature of the notes could prevent holders of notes from receiving the value of cash, or cash and common stock, into which a note would otherwise be convertible.

Prior to September 1, 2011 (in the case of the 2011 notes) or September 1, 2013 (in the case of the 2013

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notes), the notes are convertible into cash, or cash and shares of our common stock, only if specified conditions are met.  If the specific conditions for conversion are not met, holders will not be able to convert notes until after September 1, 2011 (in the case of the 2011 notes) or September 1, 2013 (in the case of the 2013 notes), and holders may not be able to receive the value of the cash and common stock into which the notes would otherwise be convertible.

The net share settlement feature of the notes may have adverse consequences.

The notes are subject to net share settlement, which means that we will satisfy our conversion obligation to holders by paying cash in settlement of the lesser of the principal amount and the conversion value of the notes and by delivering, at our election, cash or shares of our common stock, or a combination of cash and common stock, in settlement of any and all conversion obligations in excess of the daily conversion values, as described under “Description of the Notes — Conversion Rights — Payment upon Conversion.” Accordingly, upon conversion of a note, holders might not receive any shares of our common stock, or they might receive fewer shares of common stock relative to the conversion value of the note.  In addition, any settlement of a conversion of notes into cash and shares of our common stock will be delayed until at least the 25th trading day following our receipt of the holder’s conversion notice.  Accordingly, you may receive fewer proceeds than expected because the value of our common stock may decline, or fail to appreciate as much as you may expect, between the day that you exercise your conversion right and the day the conversion value of your notes is determined.

An active trading market may not develop for the notes.  The failure of a market to develop for the notes could adversely affect the liquidity and value of holders’ notes.

We issued the notes on November 17, 2006 to a group of banks, which we refer to as the “initial purchasers,” in a private placement.  The initial purchasers then sold the notes to persons reasonably believed by the initial purchasers to be “qualified institutional buyers,” as defined by Rule 144A under the Securities Act.  Prior to this offering there was no trading market for the notes.  The notes are not listed and we have no plans to list the notes on any securities exchange.  Although the notes initially sold to qualified institutional buyers are eligible for trading in The PORTALSM Market, any notes resold pursuant to this prospectus will no longer be eligible for trading in The PORTALSM Market.  The initial purchasers are not obligated to make a market in the notes.  Any market-making activity, if initiated, may be discontinued at any time, for any reason or for no reason, without notice.  Accordingly, there can be no assurance that any market for the notes will develop or, if one does develop, that it will be maintained.  If an active market for the notes fails to develop or be sustained, the value of the notes could be materially adversely affected.

The liquidity of the trading market for the notes, if any, and future trading prices of the notes will depend on many factors, including, among other things, the market price of our common stock, prevailing interest rates, the market for similar securities, general economic conditions and our financial condition, performance and prospects.  Historically, the market for convertible debt has been subject to disruptions that have caused volatility in prices.  It is possible that the market for the notes will be subject to disruptions which may have a negative effect on the holders of the notes, regardless of our operating results, financial performance or prospects.

Our stock price has been, and may continue to be, volatile, which could result in investors losing all or part of their investments.

The notes are convertible into cash and, at our election, cash or shares of our common stock or a combination of cash and common stock, if any, based on the trading price of our common stock on each trading day in the relevant observation period, and therefore we expect that the trading price of our common stock will significantly affect the trading price of the notes.  The market price of our stock has fluctuated significantly in the past and may continue to fluctuate in the future.  Our stock price, like that of other technology companies, is subject to significant volatility because of factors such as:

·                  the announcement of acquisitions, new products, services or technological innovations by us or our competitors;

·                  quarterly variations in our operating results;

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·                  changes in revenue or earnings estimates by the investment community; or

·                  speculation in the press or investment community.

In addition, our stock price is affected by general economic and market conditions and has been negatively affected by unfavorable global economic and market conditions.  If such conditions deteriorate, our stock price could decline.

Future sales or issuances of common stock may depress the trading price of our common stock and the notes.

We have stock option plans that provide for the grant of options to members of our board of directors and our employees.  In addition, we have, in connection with the acquisition of various companies, assumed the stock option plans of these companies.  The issuance of substantial amounts of our common stock under our equity plans could adversely impact the market price of our common stock, which could in turn negatively affect the trading price of the notes.

In addition, the price of our common stock could also be affected by possible sales of our common stock by investors who view the notes as a more attractive means of equity participation in our company and by hedging or arbitrage trading activity that we expect to develop involving our common stock.  The hedging or arbitrage could, in turn, negatively affect the trading price of the notes.

The limited covenants in the indenture for the notes and the terms of the notes do not provide protection against some types of important corporate events and may not protect your investment.

The indenture for the notes does not:

·                  require us to maintain any financial ratios or specific levels of net worth, revenues, income, cash flows or liquidity and, accordingly, does not protect holders of the notes in the event that we experience significant adverse changes in our financial condition or results of operations;

·                  limit our subsidiaries’ ability to incur indebtedness, which would effectively rank senior to the notes;

·                  limit our subsidiaries’ ability to pay dividends or otherwise transfer funds to us;

·                  limit our ability to incur secured indebtedness that would effectively rank senior to the notes to the extent of the value of the assets securing the indebtedness;

·                  limit our ability to incur indebtedness that is equal in right of payment to the notes;

·                  restrict our subsidiaries’ ability to issue securities that would be senior to the equity interests of our subsidiaries that we hold;

·                  restrict our ability to repurchase or prepay our securities; or

·                  restrict our ability to make investments or to repurchase or pay dividends or make other payments in respect of our common stock or other securities ranking junior to the notes.

Furthermore, the indenture for the notes contains only limited protections in the event of a change in control.  We could engage in many types of transactions, such as certain acquisitions, refinancings or recapitalizations that could substantially affect our capital structure and the value of the notes and our common stock but would not constitute a “fundamental change” that permits holders to require us to repurchase their notes.  For these reasons, you should not consider the covenants in the indenture or the repurchase feature of the notes as a significant factor in evaluating whether to invest in the notes.

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We may be unable to repurchase notes upon the occurrence of a designated event or to make payments due upon conversion; a designated event may adversely affect us or the notes.

Subject to certain exceptions, you have the right to require us to repurchase your notes upon the occurrence of a designated event as described under “Description of the Notes — Conversion Rights — Designated Event Permits Holders to Require Us to Purchase Notes.” In addition, we will be required to make cash payments to holders upon conversion of notes.  We cannot assure you that we will have or be able to raise enough funds to make the required repurchase of notes upon the occurrence of a designated event or to make cash payments required upon conversion of the notes.  In addition, any future debt we incur or other agreements we may enter into may limit our ability to repurchase notes upon a designated event or to pay amounts payable to holders upon conversion of notes.  Moreover, if you or other investors in the notes exercise the repurchase right upon a designated event or convert the notes, it may cause a default under any future debt we incur, even if the designated event itself does not cause a default, because of the potential financial effect on us that would be caused by such a repurchase or conversion.  In addition, our failure to convert notes into cash or a combination of cash and common stock upon exercise of a holder’s conversion right in accordance with the provisions of the indenture would constitute a default under the indenture.  A default under the indenture could lead to a default under existing and future agreements governing our indebtedness.  If, due to a default, the repayment of related indebtedness were to be accelerated after any applicable notice or grace periods, we may not have sufficient funds to repay such indebtedness and amounts owing in respect of the repurchase or conversion of notes.

A fundamental change or change in control transaction involving us could have a negative effect on us and the trading price of our common stock and could negatively impact the trading price of the notes.  Furthermore, the designated event provisions, including the provisions requiring the increase to the conversion rate for conversions in connection with a fundamental change in some cases, may make more difficult or discourage a takeover of our company and the removal of incumbent management.

The adjustment to the conversion rate for notes converted in connection with a fundamental change may not adequately compensate you for any lost value of your notes as a result of such transaction.

If a fundamental change occurs at the time prior to maturity, subject to certain limitations and provided such change is not a public acquirer change in control in respect of which the Company has elected to adjust the conversion rate as described under “Description of the Notes — Conversion Rights — Conversion Rate Adjustments — Conversion After a Public Acquirer Fundamental Change,”  we will increase the conversion rate by a number of additional shares of our common stock for notes converted in connection with such fundamental change.  The increase in the conversion rate will be determined based on the date on which the fundamental change becomes effective and the price paid per share of our common stock in such transaction, as described below under “Description of the Notes — Conversion Rights — Conversion Rate Adjustments — Adjustment to Shares Delivered upon Conversion upon Fundamental Change.”  The adjustment to the conversion rate for notes converted in connection with a fundamental change may not adequately compensate you for any lost value of your notes as a result of such transaction.  In addition, if the price of our common stock in the transaction is greater than $40.00 per share or less than $12.61 per share, in each case, subject to adjustment, no adjustment will be made to the conversion rate.  Moreover, in no event will the total number of shares of common stock issuable upon conversion as a result of this adjustment exceed 79.3021 per $1,000 principal amount of notes, subject to adjustments in the same manner as the conversion rate as set forth under “Description of the Notes — Conversion Rate Adjustments.”  Our obligation to increase the conversion rate in connection with a fundamental change could be considered a penalty, in which case the enforceability thereof would be subject to general principles of reasonableness of economic remedies.

A change in control of us may not constitute a “designated event” for purposes of the note.

The indenture contains no covenants or other provisions to afford protection to holders of the notes in the event of a change in control of us except to the extent described under “Description of the Notes — Designated Event Permits Holders to Require us to Purchase Notes” and “Description of the Notes — Conversion Rights — Conversion Rate Adjustments — Adjustment to Shares Delivered upon Conversion upon Fundamental Change.”  However, the terms “fundamental change” and “designated event” are limited and may not include every change in control event that might cause the market price of the notes to decline.  As a result, your rights under the notes upon the occurrence of a designated event or fundamental change may not preserve the value of the notes in the event of a change in control of us.  In addition, any change in control of us may negatively affect the liquidity, value or volatility of

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our common stock, thereby negatively impacting the value of the notes.

The conversion rate of the notes may not be adjusted for all dilutive events that may occur.

The conversion rate of the notes is subject to adjustment for certain events including, but not limited to: the issuance of stock dividends on shares of our common stock; the issuance of certain rights or warrants; subdivisions or combinations of shares of our common stock; certain distributions of assets, debt securities, capital stock or cash to holders of our common stock; and certain issuer tender or exchange offers as described under “Description of the Notes — Conversion Rate Adjustments.”  The conversion rate will not be adjusted for other events, such as stock issuances for cash or third-party tender offers that may adversely affect the trading price of the notes or the common stock.  See “Description of the Notes — Conversion Rate Adjustments.”  We are not restricted from issuing additional common stock during the life of the notes and have no obligation to consider the interests of holders of the notes in deciding whether to issue common stock.  An event that adversely affects the value of the notes, but does not result in an adjustment to the conversion rate, may occur.

We have never paid cash dividends and do not anticipate paying any cash dividends on our common stock in the future.

We currently intend to retain any earnings to finance our operations and growth. Since we have never paid cash dividends and do not anticipate paying any cash dividends on our common stock, any short-term return on your investment will depend on the market price of the notes and our common stock.

You may have to pay U.S. federal taxes if we adjust the conversion rate in certain circumstances, even if you do not receive any cash.

We will adjust the conversion rate of the notes for stock splits and combinations, stock dividends, cash dividends and certain other events that affect our capital structure.  See “Description of the Notes — Conversion Rate Adjustments.”  If we adjust the conversion rate, you may be treated as having received a constructive distribution from us, resulting in taxable income to you for U.S. federal income tax purposes, even though you would not receive any cash in connection with the conversion rate adjustment and even though you might not exercise your conversion right.  In addition, non-U.S. holders of the notes may, in certain circumstances, be deemed to have received a distribution subject to U.S. federal withholding tax requirements.  See “Certain United States Federal Income Tax Considerations — U.S. Holders — Constructive Dividends” and “Certain United States Federal Income Tax Considerations—Non-U.S. Holders — Notes.”

The convertible note hedge transactions and the warrant transactions may affect the value of the notes and our common stock.

In connection with the offering of the notes, we entered into convertible note hedge transactions with certain of the initial purchasers or their affiliates and other financial institutions. These transactions are expected to reduce the potential dilution upon conversion of the notes. We also entered into warrant transactions with certain of the initial purchasers or their affiliates and other financial institutions to offset to some extent the cost of the convertible note hedge transactions. The warrant transactions could have a dilutive effect on our earnings per share to the extent that the price of our common stock exceeds the strike price of the warrants. We used approximately $278.0 million of the net proceeds from the private offering of the notes to pay the net cost of the convertible note hedge and the warrant transactions.

In connection with establishing their initial hedge of these transactions, the counterparties to the convertible note hedge transactions and the warrant transactions, or their affiliates, entered into various over-the-counter derivative transactions with respect to our common stock and purchased our common stock in secondary market transactions concurrently with, or after, the pricing of the notes. These activities could have the effect of increasing or preventing a decline in the price of our common stock concurrently with or following the pricing of the notes.

In addition, such counterparties or their affiliates may modify their hedge positions by entering into or unwinding various over-the-counter derivatives transactions with respect to our common stock and by selling or purchasing our common stock in secondary market transactions following the pricing of the notes (including during any observation period related to the conversion

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of the notes) which could adversely impact the price of our common stock and of the notes. In addition, we will exercise options we hold under these convertible note hedge transactions whenever notes are converted. We expect that in order to unwind their hedge positions with respect to those exercised options, during the conversion observation periods, the counterparties to the convertible note hedge transactions or their affiliates will sell shares of our common stock in secondary market transactions or unwind over-the-counter derivative transactions with respect to our common stock, which may reduce the value of the notes being converted. We expect that the effect of these actions would be magnified if we settle a conversion of notes entirely in cash.

The effect, if any, of any of these hedge modification transactions and activities on the market price of our common stock or the notes will depend in part on market conditions and cannot be ascertained at this time. Any of these purchasing activities could have the effect of increasing or preventing a decline in the value of our common stock and the value of the notes, and any of these selling activities could adversely affect the value of our common stock and the value of the notes and, in each case could affect as a result, the number and value of the shares of our common stock holders will receive upon conversion of the notes.

Exercise of the warrants issued in the warrant transactions may dilute the ownership interest of existing stockholders, including holders who have previously converted their notes.

The exercise of some or all of the warrants we issue in the warrant transactions may dilute the ownership interests of existing stockholders. Although the convertible note hedge transactions are expected to reduce potential dilution upon conversion of the notes, the warrant transactions could have a dilutive effect on our earnings per share to the extent that the price of our common stock exceeds the strike price of the warrants. Any sales in the public market of our common stock issuable upon such conversion could adversely affect prevailing market prices of our common stock. In addition, the anticipated exercise of the warrants for shares of our common stock could depress the price of our common stock.

If you hold notes, you are not entitled to any rights with respect to our common stock, but you are subject to all changes made with respect to our common stock.

If you hold notes, you are not entitled to any rights with respect to our common stock (including, without limitation, voting rights and rights to receive any dividends or other distributions on our common stock), but you are subject to all changes to our common stock that might be adopted by the holders of our common stock to curtail or eliminate any of the powers, preferences or special rights of our common stock, or impose new restrictions or qualifications upon our common stock.  You only will be entitled to rights on the common stock if and when we deliver shares of common stock to you in exchange for your notes and in limited cases under the anti-dilution adjustments of the notes.  For example, in the event that an amendment is proposed to our articles of organization or bylaws requiring shareholder approval and the record date for determining the shareholders of record entitled to vote on the amendment occurs prior to delivery of common stock upon conversion of your notes, you will not be entitled to vote on the amendment, although you will nevertheless be subject to any changes in the powers, preferences or special rights of our common stock.

We can issue shares of preferred stock that may adversely affect your rights as a shareholder of our common stock.

Our restated articles of organization authorize us to issue up to 2,500,000 shares of preferred stock with relative rights and preferences determined by our board of directors. Accordingly, our board of directors is empowered, without shareholder approval, to issue preferred stock with dividend, liquidation, conversion, voting or other rights superior to those of shareholders of our common stock. For example, an issuance of shares of our preferred stock could:

·                  adversely affect the voting power of the shareholders of our common stock;

·                  make it more difficult for a third party to gain control of us;

·                  discourage bids for our common stock at a premium;

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·                  limit or eliminate any payments that the shareholders of our common stock could expect to receive upon our liquidation; or

·                  otherwise adversely affect the market price of our common stock.

We may issue shares of our preferred stock at any time.

Provisions in our articles of organization and bylaws or Massachusetts law may discourage, delay or prevent a change of control of our company and, therefore, depress the trading price of our common stock.

In addition to the ability of our board of directors to issue shares of preferred stock, our restated articles of organization and amended and restated bylaws and the Massachusetts Business Corporation Act, or MBCA, contain provisions that may have the effect of discouraging, delaying or preventing a future takeover or change in control of our company that our stockholders may consider favorable, including transactions in which holders of our common stock might otherwise receive a premium for their shares of our common stock. These provisions may also prevent or frustrate attempts to replace or improve our management. These provisions include:

·                  the classification of our board of directors into three classes, each having a three-year term;

·                  limitations on the ability of stockholders to remove our directors;

·                  super-majority vote requirements to approve amendments of our articles of organization, mergers and consolidations;

·                  unanimous consent requirements for action by written consent of our stockholders;

·                  limitations on the ability of our stockholders to call special stockholder meetings; and

·                  advanced notice requirements for stockholder proposals to be brought before annual or special meetings of our stockholders, including for proposed nominations of persons for election to our board.

In addition, we are subject to Chapter 110C of the Massachusetts Corporation-Related Laws which provides that, if a person (together with its associates and affiliates) beneficially owns more than 5% of the stock of a Massachusetts corporation, such person may not make a takeover bid, defined as the offer to acquire or the acquisition of stock of the corporation that would result in the person (together with its associates and affiliates) beneficially owning more than 10% of the corporation’s stock, if during the preceding year such person acquired any of the subject stock with the undisclosed intent of gaining control of the corporation. The statute contains certain exceptions to this prohibition, including if the board of directors approves the takeover bid, recommends it to the corporation’s stockholders and the terms of the takeover are furnished to stockholders.

The existence of the foregoing provisions could limit the price that investors may be willing to pay in the future for shares of our common stock. They could also deter potential acquirers of our company, thereby reducing the likelihood that holders of our common stock will receive a premium for their shares in an acquisition.

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USE OF PROCEEDS

The selling securityholders will receive all of the net proceeds from the sale of the notes or shares of our common stock issuable upon conversion of the notes.  We will not receive any of the proceeds from the sale of any of these securities.

PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY

Our common stock is listed on the NYSE under the symbol “EMC.” The following table sets forth the high and low sales prices of our common stock for the periods indicated as reported by the NYSE.

On February 1, 2007, the closing sale price of our common stock as reported by the NYSE was $13.76 per share. As of the close of business on February 1, 2007, we had approximately 14,997 record holders of our common stock.

We have never declared or paid any dividends on our common stock.  We do not expect to pay dividends on our common stock in the foreseeable future.  We intend to retain our future earnings to fund the development and growth of our business.

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DESCRIPTION OF CAPITAL STOCK

The following is a description of our capital stock and certain provisions of our restated articles of organization, amended and restated bylaws and certain agreements as well as certain provisions of applicable law.  The following is only a summary and is qualified by applicable law and by the provisions of our restated articles of organization, amended and restated bylaws and such agreements, copies of which are available as set forth under “Additional Information.”

Authorized Capital Stock

Our authorized capital stock consists of 6,000,000,000 shares of common stock, par value $0.01 per share, and 25,000,000 shares of preferred stock, par value $0.01 per share.  As of December 31, 2006, 1,819,152,740 shares of our common stock were outstanding, excluding treasury stock and shares reserved for issuance upon exercise of outstanding options.  No shares of our preferred stock are outstanding.

Common Stock

Holders of our common stock are entitled to one vote for each share held and have no preemptive or other rights to subscribe for additional shares from EMC.  There are no cumulative voting rights, with the result that holders of more than 50% of the shares of our common stock are able to elect 100% of the class of our directors to be elected at any annual meeting of stockholders or special meeting in lieu thereof.  All outstanding shares of common stock are, and those issuable upon conversion of the notes will be, when issued and fully paid for, validly issued, fully paid and non-assessable.  Subject to preferences that may be applicable to any outstanding preferred stock, holders of our common stock are entitled to such dividends as may be declared by our board of directors out of funds legally available therefor.  On liquidation, dissolution or winding up of EMC, the holders of our common stock are entitled to receive their pro rata portion of our net assets remaining after the payment of all debts, obligations and liquidation preferences, if any.  Holders of notes are not entitled to any rights with respect to our common stock, but are subject to all changes made with respect to our common stock.

Preferred Stock

Our board is authorized to issue preferred stock from time to time in one or more series.  Our directors shall determine the number of shares constituting each series of preferred stock and each series shall have a distinguishing designation.  Subject to our restated articles of organization, our directors may determine, in whole or in part, the preferences, voting powers, qualifications and special or relative rights or privileges, if any, of any such series, without further vote or action by our stockholders.  The issuance of preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation.  The issuance of preferred stock could also have the effect of decreasing the market price of our common stock and could delay, deter or prevent a change in control of our company.

Certain Provisions of our Articles of Organization and Bylaws and Massachusetts Laws

In addition to our board of directors’ ability to issue shares of preferred stock, our restated articles of organization and amended and restated bylaws and the MBCA, contain provisions that may have the effect of delaying, deferring or preventing a future takeover or change in control of our company unless such takeover or change in control is approved by our board of directors, including:

Classified Board.  The MBCA requires classification of our board of directors into three classes, each having a three-year term, unless our directors vote to be exempt from such requirement or our stockholders elect to be exempt from such requirement by a vote of two-thirds of our stock outstanding and entitled to vote on the matter.

Removal of Directors.  Our bylaws, in accordance with the MBCA, provide that our directors may be removed from office, but only for cause, by a vote of the holders of a majority of shares entitled to vote at an election of directors and only at a meeting of stockholders called for such purpose.

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Amendments to Our Restated Articles of Organization.  Under the MBCA, except for amendments to increase or reduce our capital stock, to change the par value of authorized shares with par value, to change authorized shares from shares with par value to shares without par value, or from shares without par value to shares with par value, to make certain changes in the number of authorized shares or to change our corporate name, a two-thirds vote of each class of stock outstanding and entitled to vote and board approval is required to authorize amendments of our restated articles of organization.

Action by Consent of Stockholders.  As provided by the MBCA and our bylaws, any action required or permitted to be taken by stockholders at a meeting may be taken without a meeting only if all stockholders entitled to vote on the matter consent to the action in writing.

Ability to Call Special Stockholder Meetings.  Our bylaws provide that a special meeting of our stockholders may be called by stockholders upon the written application of stockholders holding at least 85% of our capital stock entitled to vote at the proposed meeting.

Advanced Notice Procedures.  Our bylaws establish an advanced notice procedure for stockholder proposals to be brought before annual or special meetings of our stockholders, including for proposed nominations of persons for election to our board.

Mergers, Acquisitions and Other Transactions.  Under the MBCA, approval of mergers and consolidations requires the affirmative vote of two-thirds of the shares of each class of stock outstanding and entitled to vote on the transaction.

Massachusetts Regulation of Take-Over Bids.  Chapter 110C of the Massachusetts Corporation-Related Laws provides that, if a person (together with its associates and affiliates) beneficially owns more than 5% of the stock of a Massachusetts corporation, such person may not make a takeover bid, defined as the offer to acquire or the acquisition of stock of the corporation that would result in the person (together with its associates and affiliates) beneficially owning more than 10% of the corporation’s stock, if during the preceding year such person acquired any of the subject stock with the undisclosed intent of gaining control of the corporation.  The statute contains certain exceptions to this prohibition, including if the board of directors approves the takeover bid, recommends it to the corporation’s stockholders and the terms of the takeover are furnished to stockholders.

Limitation on Liability of Directors and Officers and Indemnification

The MBCA generally provides for the mandatory indemnification, permissive indemnification and advance of reasonable expenses by a Massachusetts corporation to its directors or officers for liabilities incurred in the capacity of a director or officer, subject to conditions and limitations.

Our restated articles of organization provide that our directors shall not be personally liable to us or our 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 required by the MBCA, this provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to us or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for certain improper distributions, or (iv) for any transaction from which the director derived an improper personal benefit.

Our amended and restated bylaws provide that we shall, to the extent legally permissible, indemnify each of our directors and officers (including persons who act at our 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.  Such indemnification will not be available to a director or officer for any matter as to which such director or officer is adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in our best interests or in the best interests of the participants or beneficiaries of any employee benefit plan.  As to any matter

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disposed of by a compromise payment by such director or officer pursuant to a consent decree or otherwise, no indemnification for said payment shall be provided unless such compromise shall be approved as in our best interests after notice that it involves such indemnification:

·                  by a disinterested majority of the directors then in office;

·                  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 our best interests; or

·                  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.

Our amended and restated bylaws also provides for the advance of reasonable expenses, including counsel fees, to a director or officer in connection with a proceeding upon the receipt of an undertaking by such director or officer to repay such advanced funds if it is ultimately determined that indemnification for such expenses is not authorized under this provision.

We have entered into indemnification agreements with each of our directors and executive officers providing for the indemnification of such director or executive officer to the extent legally permissible and for 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 our director or officer.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company under the MBCA, our restated articles of organization, amended and restated bylaws and contractual arrangements, the Company has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Transfer Agent and Registrar

Computershare is the transfer agent and registrar for our common stock.

New York Stock Exchange Listing

Our common stock is listed on the NYSE under the symbol “EMC.”

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DESCRIPTION OF THE NOTES

We issued $1.725 billion in aggregate principal amount of our 1.75% convertible senior notes due 2011, or the 2011 notes, and $1.725 billion in aggregate principal amount of our 1.75% convertible senior notes due 2013, or the 2013 notes, under an indenture, dated as of November 17, 2006, or the indenture, between us and Wells Fargo Bank, National Association, as trustee . Unless the context otherwise requires, references in this section to the “notes” include the 2011 notes and the 2013 notes.  The 2011 notes and the 2013 notes are treated as a single series of notes under the indenture for purposes of, among other things, payments of principal and interest, taking actions with respect to Events of Default and consenting to amendments to the indenture and the notes. We entered into a registration rights agreement, dated as of November 17, 2006, or the registration rights agreement, with the initial purchasers pursuant to which we filed a shelf registration statement with the SEC, of which this prospectus is a part, covering resale of notes, as well as the shares of our common stock issuable upon conversion of notes.  The terms of the notes include those expressly set forth in the indenture, the notes, the registration rights agreement and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended.

The following description is a summary of the material provisions of the notes, the indenture and the registration rights agreement and does not purport to be complete. This summary is subject to and is qualified by reference to all the provisions of the notes, the indenture, including the definitions of terms used in the indenture, and the registration rights agreement. We urge you to carefully read the entire indenture because it, and not this description, defines your rights as a holder of notes. You may request a copy of the indenture from us. A copy of the indenture will be available as described under the heading “Additional Information” in this prospectus.

For purposes of this description, references to the “Company,” “we,” “our” and “us” refer only to EMC Corporation and not to its subsidiaries.

General

Each series of notes is:

·                  our general unsecured obligation;

·                  equal in right of payment with any other senior unsecured indebtedness of ours;

·                  senior in right of payment to any indebtedness that is contractually subordinated to the notes;

·                  structurally subordinated to the claims of our subsidiaries’ creditors, including trade creditors;

·                  effectively subordinated to any secured indebtedness to the extent of the value of the collateral securing such indebtedness;

·                  issued in registered form without interest coupons, in denominations of $1,000 and integral multiples of $1,000; and

·                  represented by one or more registered notes in global form, but in certain limited circumstances may be represented by notes in definitive form.

The 2011 notes will mature on December 1, 2011, unless earlier converted or repurchased, and the 2013 notes will mature on December 1, 2013, unless earlier converted or repurchased.

The indenture does not limit the amount of debt that may be issued by us or our subsidiaries under the indenture or otherwise.  Our subsidiaries have not guaranteed any of our obligations under the notes.  Some of our operations are conducted through our subsidiaries and, therefore, we depend on the cash flow of our subsidiaries to meet our obligations, including our obligations under the notes.  The notes are effectively subordinated in right of payment to all indebtedness and other liabilities and commitments (including trade payables and lease obligations) of our subsidiaries.  Any right we have to receive assets of any of our subsidiaries upon the subsidiary’s liquidation or

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reorganization (and the consequent right of the holders of notes to participate in those assets) are effectively subordinated to the claims of that subsidiary’s creditors, except to the extent that we are recognized as a creditor of that subsidiary.  As of September 30, 2006, our subsidiaries had $2.1 billion of liabilities outstanding to which the notes would be effectively subordinated.  See “Risk Factors — The notes effectively rank junior in right of payment to any future secured debt and the liabilities of our subsidiaries.”

The notes are convertible as described below under “— Conversion Rights.”

We use the term “note” in this prospectus to refer to each $1,000 principal amount of notes

We may from time to time repurchase the notes in tender offers, open market purchases or negotiated transactions without prior notice to holders.

The registered holder of a note will be treated as the owner of it for all purposes.

Other than restrictions described under “— Designated Event Permits Holders to Require Us to Repurchase Notes” and “— Consolidation, Merger and Sale of Assets” below, and except for the provisions set forth under “— Conversion Rights — Conversion Rate Adjustments — Adjustment to Conversion Rate upon Conversion upon Fundamental Change,” the indenture does not contain any covenants or other provisions designed to afford holders of the notes protection in the event of a highly leveraged transaction involving us or in the event of a decline in our credit rating as the result of a takeover, recapitalization, highly leveraged transaction or similar restructuring involving us that could adversely affect holders.  See “Risk Factors — Risks Related to an Investment in the Notes.”

Payments on the Notes; Paying Agent and Registrar

We will pay the principal of certificated notes at the office or agency designated by us in the Borough of Manhattan, The City of New York.  We have initially designated a corporate trust office of the trustee as our paying agent and registrar and its agency in New York, New York as a place where notes may be presented for payment or for registration of transfer.  We may, however, change the paying agent or registrar without prior notice to the holders of the notes, and we may act as paying agent or registrar.  Interest on certificated notes will be payable (i) to holders having an aggregate principal amount of $1.0 million or less, by check mailed to the holders of those notes and (ii) to holders having an aggregate principal amount of more than $1.0 million, either by check mailed to each holder or, upon application by a holder to the registrar not later than the relevant record date, by wire transfer in immediately available funds to that holder’s account within the United States, which application shall remain in effect until the holder notifies, in writing, the registrar to the contrary.

We will pay the principal of, and interest on notes in global form registered in the name of or held by The Depository Trust Company, or DTC, or its nominee in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global notes.

Transfer and Exchange

A holder of notes may transfer or exchange notes at the office of the registrar in accordance with the indenture.  The registrar and the trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents.  No service charge will be imposed by us, the trustee or the registrar for any registration of transfer or exchange of notes, but we may require a holder to pay a sum sufficient to cover any transfer tax or other similar governmental charge required by law or permitted, by the indenture.  We are not required to transfer or exchange any note selected or surrendered for conversion.

Interest

The 2011 notes bear interest at a rate of 1.75% per year from November 17, 2006, or from the most recent date to which interest has been paid or duly provided for.  Interest is payable semiannually in arrears on June 1 and December 1 of each year, beginning June 1, 2007.

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The 2013 notes bear interest at a rate of 1.75% per year from November 17, 2006, or from the most recent date to which interest has been paid or duly provided for.  Interest is payable semiannually in arrears on June 1 and December 1 of each year, beginning June 1, 2007.

Interest will be paid to the person in whose name a note is registered at the close of business on May 15 or November 15, as the case may be, immediately preceding the relevant interest payment date.  Interest on the notes will be computed on the basis of a 360-day year composed of twelve 30-day months.

No sinking fund is provided for the notes.

Conversion Rights

General

Upon the occurrence of any of the conditions, and subject to the limitations, described under the headings “— Conversion Upon Satisfaction of Trading Price Condition,” “— Conversion Based on Common Stock Price” and “— Conversion upon Specified Corporate Transactions,” holders may convert each of their notes initially at an initial conversion rate of 62.1978 shares of common stock per $1,000 in principal amount of notes, which is equivalent to a conversion price of approximately $16.08 per share of common stock, at any time prior to the close of business on the scheduled trading day immediately preceding September 1, 2011, in the case of the 2011 notes, and at any time prior to the close of business on the scheduled trading day immediately preceding September 1, 2013, in the case of the 2013 notes.  In the case of the 2011 notes, on and after September 1, 2011, holders may convert each of their notes at the conversion rate regardless of the conditions described under the headings “— Conversion Upon Satisfaction of Trading Price Condition,” “— Conversion Based on Common Stock Price” and “— Conversion upon Specified Corporate Transactions” at any time prior to the close of business on the scheduled trading day immediately preceding the maturity date of December 1, 2011.  In the case of the 2013 notes, on and after September 1, 2013, holders may convert each of their notes at the conversion rate regardless of the conditions described under the headings “— Conversion Upon Satisfaction of Trading Price Condition,” “ — Conversion Based on Common Stock Price” and “— Conversion upon Specified Corporate Transactions” at any time prior to the close of business on the scheduled trading day immediately preceding the maturity date of December 1, 2013.

The conversion rate and the equivalent conversion price in effect at any given time are referred to as the “applicable conversion rate” and the “applicable conversion price,” respectively, and will be subject to adjustment as described below.  The conversion price at any given time will be computed by dividing $1,000 by the applicable conversion rate at such time.  A holder may convert fewer than all of such holder’s notes so long as the notes converted are an integral multiple of $1,000 principal amount.

Upon conversion of a note, the holder thereof will not receive any separate cash payment for accrued and unpaid interest unless such conversion occurs between a regular record date and the interest payment date to which it relates.  Our settlement of conversions as described below under “— Payment upon Conversion” will be deemed to satisfy our obligation to pay:

·                  the principal amount of the note; and

·                  accrued and unpaid interest to, but not including, the conversion date.

As a result, accrued and unpaid interest to, but not including, the conversion date will be deemed to be paid in full rather than cancelled, extinguished or forfeited.

Notwithstanding the preceding paragraph, if notes are converted after 5:00 p.m., New York City time, on a record date, holders of such notes at 5:00 p.m., New York City time, on the record date will receive the interest payable on such notes on the corresponding interest payment date notwithstanding the conversion.  However, notes surrendered for conversion during the period from 5:00 p.m., New York City time, on any regular record date to 9:00 a.m., New York City time, on the immediately following interest payment date must be accompanied by funds equal to the amount of interest payable on the notes so converted; except that no such payment need be made:

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·                  if we have specified a designated event repurchase date as defined below that is after a record date and on or prior to the corresponding interest payment date;

·                  to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such notes; or

·                  in respect of any conversions that occur after the record date immediately preceding the maturity date.

Upon conversion of notes, we will pay an amount in cash equal to the “principal portion” (as defined below) of the conversion value of the notes converted for each trading day during the specified 20-trading day period following conversion.  If the conversion value exceeds the principal amount of the notes converted on any trading day during the specified 20-trading day period following conversion, we will also deliver, at our election, cash or shares of our common stock or a combination of cash and shares of our common stock in amount equal to the excess of the conversion value over the principal portion of the notes converted.  See “— Payment upon Conversion.”  While we do not currently have any debt or other agreements that would restrict our ability to pay the principal portion of the notes in cash upon conversion, we may enter into such an agreement in the future which may limit or prohibit our ability to make any such payment.  Our failure to pay the principal portion of the notes when converted would result in an event of default with respect to the notes.  See “Risk Factors — Risks Related to an Investment in the Notes.”

If a holder converts notes, we will pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of our common stock upon the conversion, unless the tax is due because the holder requests any shares to be issued in a name other than the holder’s name, in which case the holder will pay that tax.

Conversion upon Satisfaction of Trading Price Condition

Prior to September 1, 2011, in the case of the 2011 notes, and prior September 1, 2013, in the case of the 2013 notes, a holder may surrender notes for conversion during the five business day period after any five consecutive trading day period (the “measurement period”) in which the “trading price” per $1,000 in principal amount of the applicable series of notes for each day of the measurement period was less than 98% of the product of the last reported sale price of our common stock and the conversion rate for such series of notes for such date, subject to compliance with the procedures and conditions described below concerning the trustee’s obligation to make a trading price determination.

The “trading price” of a series of notes on any date of determination means the average of the secondary market bid quotations obtained by the trustee for $2.0 million in principal amount of such series of notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers we select, which may include the initial purchasers; but if three such bids cannot reasonably be obtained by the trustee, but two such bids are obtained, then the average of the two bids will be used, and if only one such bid can reasonably be obtained by the trustee, that one bid will be used.  If the trustee cannot reasonably obtain at least one bid for $2.0 million in principal amount of such series of notes from a nationally recognized securities dealer, then that series of notes will not be deemed to be convertible pursuant to the trading price conversion trigger.  Any such determination will be conclusive absent manifest error.

In connection with any conversion upon satisfaction of the above trading price condition, the trustee will have no obligation to determine the trading price of the notes unless we have requested such determination; and we will have no obligation to make such request unless a holder provides us with reasonable evidence that the trading price per $1,000 in principal amount of the applicable series of notes would be less than 98% of the product of the last reported sale price of our common stock and the conversion rate for such series of notes.  At such time, we shall instruct the trustee to determine the trading price of the applicable series of notes beginning on the next trading day and on each successive trading day until the trading price per $1,000 in principal amount of the applicable series of notes is greater than or equal to 98% of the product of the last reported sale price of our common stock and the conversion rate for such series of notes.

If the trading price condition has been met, we will so notify the holders of the applicable series of notes.  If, at any time after the trading price condition has been met, the trading price per $1,000 in principal amount of the applicable series of notes is greater than 98% of the product of the last reported sale price of our common stock and the

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conversion rate for such date, we shall so notify the holders of the applicable series of notes.

The “last reported sale price” of our common stock on any date means the closing sale price per share, or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices, on that date as reported by the New York Stock Exchange, or if our common stock is not then listed on the New York Stock Exchange, as reported by the principal U.S. securities exchange or automated quotation service on which our common stock is traded or quoted.  If our common stock is not reported by the New York Stock Exchange or listed on a United States national or regional securities exchange or automated quotation service on the relevant date, the “last reported sale price” will be the last quoted bid price for our common stock in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or similar organization.  If our common stock is not so quoted, the last reported sale price will be the average of the mid-point of the last bid and ask prices for our common stock on the relevant date from each of at least three nationally recognized independent investment banking firms, which may include the initial purchasers, selected by us for this purpose.  Any such determination will be conclusive absent manifest error.

“Trading day” means a day during which trading in securities generally occurs on the New York Stock Exchange or, if our common stock is not then listed on the New York Stock Exchange, on another national or regional securities exchange on which our common stock is then listed or quoted or, if our common stock is not listed on the New York Stock Exchange or a national or regional securities exchange or automated quotation service, on the principal other market on which our common stock is then traded or quoted.

Conversion Based On Common Stock Price

Prior to September 1, 2011, in the case of the 2011 notes, and prior to September 1, 2013, in the case of the 2013 notes, a holder may surrender notes for conversion during any calendar quarter after the calendar quarter ending December 31, 2006, if the last reported sale price of our common stock for 20 or more trading days in a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter exceeds 130% of the applicable conversion price in effect for such series of notes on the last trading day of the immediately preceding calendar quarter.

Conversion upon Specified Corporate Transactions

If we elect to:

·                  distribute to all or substantially all holders of our common stock certain rights entitling them to purchase, for a period expiring within 45 days after the record date of the distribution, shares of our common stock at less than the last reported sale price of a share of our common stock on the trading day immediately preceding the declaration date of the distribution; or

·                  distribute to all or substantially all holders of our common stock our assets (including cash), debt securities or certain rights to purchase our securities, which distribution has a per share value as determined by our board of directors exceeding 15% of the last reported sale price of our common stock on the day preceding the declaration date for such distribution,

we must notify the holders of the notes at least 25 scheduled trading days prior to the ex-dividend date for such distribution.  Once we have given such notice, holders may surrender their notes for conversion at any time until the earlier of 5:00 p.m., New York City time, on the business day immediately prior to the ex-dividend date or our announcement that such distribution will not take place, even if the notes are not otherwise convertible at such time.  The ex-dividend date is the first date upon which a sale of the common stock does not automatically transfer the right to receive the relevant dividend from the seller of the common stock to its buyer.  Holders of notes may not exercise this right if they are permitted to participate in the distribution on an as-converted basis without having to convert their notes.

In addition, if we are party to any transaction or event that constitutes a “designated event” (as defined below), a holder may surrender notes for conversion at any time from and after the 30th scheduled trading day prior to the anticipated effective date of such designated event until the “designated event repurchase date” (as defined below)

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corresponding to such designated event, and if such designated event constitutes a fundamental change, may be entitled to receive additional shares upon any conversion as described below under “— Adjustment to Conversion Rate Upon Conversion upon Fundamental Change.”

Holders of notes will also have the right to convert their notes if we are a party to a combination, merger, binding share exchange or sale or conveyance of all or substantially all of our property and assets, in each case pursuant to which our common stock would be converted into cash, securities and/or other property that does not also constitute a designated event.  In such event, holders of notes will have the right to convert their notes at any time beginning 15 calendar days prior to the date that is the anticipated effective date of such transaction and ending on the 15th calendar day following the effective date of such transition.  We will notify holders at least 20 calendar days prior to the anticipated effective date of such transaction.  If the transaction also constitutes a “designated event,” in lieu of the conversion right described in this paragraph, holders of notes will have the conversion right described in the preceding paragraph and holders of notes will have the right to require us to repurchase their notes as set forth below under “— Designated Event Permits Holders to Require Us to Repurchase Notes.”

Conversion Procedures

If you hold a beneficial interest in a global note, to convert you must comply with DTC’s procedures for converting a beneficial interest in a global note and, if required, pay funds equal to interest payable on the next interest payment date to which you are not entitled and, if required, pay all taxes or duties, if any.

If you hold a certificated note, to convert you must:

·                  complete and manually sign the conversion notice on the back of the note, or a facsimile of the conversion notice;

·                  deliver the conversion notice, which is irrevocable, and the note to the conversion agent;

·                  if required, furnish appropriate endorsements and transfer documents;

·                  if required, pay all transfer or similar taxes; and

·                  if required, pay funds equal to interest payable on the next interest payment date to which you are not entitled.

The date you comply with these requirements is the “conversion date” under the indenture.

If a holder has already delivered a repurchase notice as described under “— Designated Event Permits Holders to Require Us to Repurchase Notes” with respect to a note, the holder may not surrender that note for conversion until the holder has withdrawn the notice in accordance with the indenture.

Payment upon Conversion

Upon conversion of notes, we will pay an amount in cash equal to the principal portion of the notes converted, calculated as described below.  If the daily conversion value exceeds the principal portion of the converted notes on any trading day during the observation period, in addition to paying the principal portion of the converted notes for such trading day, we will also deliver, at our election, cash or shares of our common stock or a combination of cash and shares of our common stock in amount equal to the excess of the daily conversion value over the principal portion of the converted notes for such trading day, all calculated as described below.  We will settle each $1,000 in principal amount of notes being converted by delivering, on the third trading day immediately following the last day of the related observation period, cash and shares of our common stock equal to the sum of the daily settlement amounts (as defined below) for each of the 20 trading days during the related observation period.

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The “observation period” with respect to any note means:

·                  with respect to any conversion date occurring during the period beginning on the 30th calendar day prior to the applicable maturity date of a series of notes, the 20 consecutive trading day period beginning on and including the third trading day after the maturity date; and

·                  in all other instances, the 20 consecutive trading day period beginning on and including the third trading day after the conversion date.

The “daily settlement amount” for each $1,000 in principal amount of notes being converted for each of the 20 trading days during the observation period shall consist of:

·                  cash equal to the lesser of (x) $50 and (y) the daily conversion value relating to such day (the amount determined pursuant to this clause being the “principal portion”); plus

·                  if such daily conversion value exceeds $50, either (i) a number of shares (the “maximum deliverable shares”) equal to (A) the difference between such daily conversion value and $50, divided by (B) the daily VWAP of our common stock for such day, (ii) cash equal to the difference between such daily conversion value and $50, or (iii) any combination elected by us of shares and cash in an amount equal to such excess of the daily conversion value over $50.

The “daily conversion value” means, for each $1,000 in principal amount of notes being converted for each of the 20 consecutive trading days during the observation period,  1¤20 of the product of (1) the applicable conversion rate and (2) the daily VWAP of our common stock, or the consideration into which our common stock has been converted in connection with certain corporate transactions, on such day.  Any determination of the daily conversion value will be conclusive absent manifest error.

The “daily VWAP” for our common stock means, for each $1,000 in principal amount of notes being converted for each of the 20 consecutive trading days during the observation period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page EMC.N ‹equity› AQR (or any successor page) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such trading day, or if such volume-weighted average price is unavailable, the market value of one share of our common stock on such trading day as our board of directors determines in good faith using a volume-weighted method.

For the purposes of determining payment upon conversion, “trading day” means a day during which (i) trading in our common stock generally occurs on the principal U.S. national or regional securities exchange or market on which our common stock is listed or admitted for trading and (ii) there is no market disruption event.  If our common stock is not so listed or traded, then “trading day” means a business day.

For the purposes of determining payment upon conversion, “market disruption event” means (i) a failure by the principal U.S. national or regional securities exchange or market on which our common stock is listed or admitted to trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. on any trading day for our common stock for an aggregate one half hour period of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in our common stock or in any options contracts or futures contracts relating to our common stock.

If we elect to pay cash in lieu of delivering all or a portion of the maximum deliverable shares, we will notify the holder of the note through the trustee of the percentage of each share issuable upon conversion that will be paid in cash in lieu of our common stock (the “Cash Percentage”) at any time on or before the close of business on the trading day following our receipt of such holder’s notice of conversion. If we choose to settle all or any portion of the maximum deliverable shares in cash in connection with conversions of a series of notes within 30 scheduled trading days prior to the applicable maturity date for such series, we will send, on or prior to the 30th scheduled trading day prior to the maturity date, a single notice for all such conversions to the trustee with respect to the Cash Percentage that will be paid in lieu of our common stock.

We will deliver cash in lieu of any fractional shares of common stock issuable in connection with payment of the amounts above based on the last reported sale price of our common stock on the last day of the applicable observation period.

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The indenture requires us to pay the principal portion of the conversion amount of the notes in cash, and we may be required to repurchase the notes for cash at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and special interest, if any, upon the occurrence of a “designated event” (as defined below). While we do not currently have any debt or other agreements that would restrict our ability to pay the principal amount of the notes in cash, we may enter into such an agreement in the future which may limit or prohibit our ability to make any such payment.  Our failure to pay the principal amount of the notes when converted would result in an event of default with respect to the notes. See “Risk Factors — Risks Related to an Investment in the Notes.”

Exchange in Lieu of Conversion

When a holder surrenders notes for conversion, we may direct the conversion agent to surrender, on or prior to the commencement of the observation period, such notes to a financial institution designated by us for exchange in lieu of conversion. In order to accept any notes surrendered for conversion, the designated institution must agree to deliver, in exchange for such notes, all cash and shares of our common stock (if any) or a combination of cash and shares of our common stock, equal to the consideration due upon conversion, all as provided above under “— Payment upon Conversion,” at the sole option of the designated financial institution and as is designated to the conversion agent by us. By the close of business on the trading day immediately preceding the start of the observation period, we will notify the holder surrendering notes for conversion that we have directed the designated financial institution to make an exchange in lieu of conversion and such financial institution will be required to notify the conversion agent whether it will deliver, upon exchange, all cash or a combination of cash and shares of common stock.

If the designated institution accepts any such notes, it will deliver cash and, if applicable, the appropriate number of shares of our common stock to the conversion agent and the conversion agent will deliver the cash and those shares to such holder. Any notes exchanged by the designated institution will remain outstanding.  If the designated institution agrees to accept any notes for exchange but does not timely deliver the related consideration, or if such designated financial institution does not accept the notes for exchange, we will, no later than the third trading day immediately following the last day of the related observation period, convert the notes into cash and shares, if any, of our common stock, as described above under “— Conversion Rights”

Our designation of an institution to which the notes may be submitted for exchange does not require the institution to accept any notes.  We will not pay any consideration to, or otherwise enter into any agreement with, the designated institution for or with respect to such designation.

Conversion Rate Adjustments

The conversion rate will be adjusted as described below, except that we will not make any adjustments to the conversion rate if holders of notes are permitted to participate on an as-converted basis without having to convert their notes.

Adjustment Events.

(1)           If we issue shares of our common stock as a dividend or distribution on all or substantially all of our shares of our common stock, or if we effect a share split or share combination, the conversion rate will be adjusted based on the following formula:

where,

CR0 = the conversion rate in effect immediately prior to the “ex-date” for such event;

CR’ = the conversion rate in effect immediately after the “ex-date” for such event;

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OS0 = the number of shares of our common stock outstanding immediately prior to the “ex-date” for such event; and

OS’ = the number of shares of our common stock outstanding immediately after the “ex-date” for such event.

As used in this section, “ex-date” means the first date on which the shares of our common stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance or distribution in question.

(2)           If we issue to all or substantially all holders of our common stock any rights, warrants or convertible securities entitling them for a period of not more than 45 calendar days to subscribe for or purchase shares of our common stock, at a price per share less than the last reported sale price of our common stock on the business day immediately preceding the date of announcement of such issuance, the conversion rate will be adjusted based on the following formula; provided that the conversion rate will be readjusted to the extent that such rights or warrants are not exercised prior to their expiration:

where,

CR0 = the conversion rate in effect immediately prior to the “ex-date” for such event;

CR’ = the conversion rate in effect immediately after the “ex-date” for such event;

OS0 = the number of shares of our common stock outstanding immediately prior to the “ex-date” for such event;

X = the total number of shares of our common stock issuable pursuant to such rights; and

Y = the number of shares of our common stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the last reported sale prices of our common stock over the ten consecutive trading-day period ending on the business day immediately preceding the “ex-date” relating to such distribution for the issuance of such rights or warrants.

(3)           If we distribute shares of our capital stock, evidences of our indebtedness or other assets or property of ours to all or substantially all holders of our common stock, excluding:

·                  dividends or distributions and rights or warrants referred to in clause (1) or (2) above;

·                  dividends or distributions paid exclusively in cash; and

·                  as described below in this paragraph (3) with respect to spin-offs;

then the conversion rate will be adjusted based on the following formula:

where,

CR0 = the conversion rate in effect immediately prior to the “ex-date” for such distribution;

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CR’ = the conversion rate in effect immediately after the “ex-date” for such distribution;

SP0 = the average of the last reported sale prices of our common stock over the 10 consecutive trading-day period ending on the business day immediately preceding the “ex-date” relating to such distribution; and

FMV = the fair market value as determined by our board of directors of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of our common stock on the “ex-date” relating to such distribution.

With respect to an adjustment pursuant to this clause (3) where there has been a payment of a dividend or other distribution on our common stock in shares of capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit, which we refer to as a “spin-off,” the conversion rate in effect immediately before 5:00 p.m., New York City time, on the record date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula:

Where,

CR0 = the conversion rate in effect immediately prior to such record date;

CR’ = the conversion rate in effect immediately after such record date;

FMV0 = the average of the last reported sale prices of the capital stock or similar equity interest distributed to holders of our common stock applicable to one share of our common stock over the first ten consecutive trading-day period after the effective date of the spin-off; and

MP0 = the average of the last reported sale prices of our common stock over the first ten consecutive trading-day period after the effective date of the spin-off.

The adjustment to the conversion rate under the preceding paragraph will occur on the 10th trading day from, and including, the effective date of the spin-off.

(4)           If we pay any cash dividend or distribution to all or substantially all holders of our common stock, the conversion rate will be adjusted based on the following formula:

where,

CR0 = the conversion rate in effect immediately prior to the “ex-date” for such distribution;

CR’ = the conversion rate in effect immediately after the “ex-date” for such distribution;

SP0 = the last reported sale price of our common stock on the trading day immediately preceding the “ex-date” relating to such distribution; and

C = the amount in cash per share we distribute to holders of our common stock.

(5)           If we or any of our subsidiaries makes a payment in respect of a tender offer or exchange offer for our common stock, if the cash and value of any other consideration included in the payment per share of common stock (taken together) exceeds the last reported sale price of our common stock on the trading day next succeeding the last

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date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the conversion rate will be increased based on the following formula:

where,

CR0 = the conversion rate in effect on the date such tender or exchange offer expires;

CR’ = the conversion rate in effect on the day next succeeding the date such tender or exchange offer expires;

AC = the aggregate value of all cash and any other consideration as determined by our board of directors paid or payable for shares purchased in such tender or exchange offer;

OS0 = the number of shares of our common stock outstanding immediately prior to the date such tender or exchange offer expires;

OS’ = the number of shares of our common stock outstanding immediately after the date such tender or exchange offer expires; and

SP’ = the last reported sale price of our common stock on the trading day next succeeding the date such tender or exchange offer expires.

If the application of the foregoing formula would result in a decrease in the conversion rate, no adjustment to the conversion rate will be made.

Except as stated herein, we will not adjust the conversion rate for the issuance of shares of our common stock or any securities convertible into or exchangeable for shares of our common stock or the right to purchase shares of our common stock or such convertible or exchangeable securities.

Events that Will not Result in Adjustments.  The applicable conversion rate will not be adjusted:

·                  upon the issuance of any shares of our common stock pursuant to any current or future plan providing for the reinvestment of dividends or interest payable on our securities and the investment of additional optional amounts in shares of our common stock under any plan;

·                  upon the issuance of any shares of our common stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries;

·                  upon the issuance of any shares of our common stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in the preceding bullet and outstanding as of the date the notes were first issued;

·                  for a change in the par value of our common stock; or

·                  for accrued and unpaid interest.

Adjustments to the applicable conversion rate will be calculated to the nearest  1¤10,000th of a share.  We will not be required to make an adjustment in the conversion rate unless the adjustment would require a change of at least 1% in the conversion rate.  However, we will carry forward any adjustments that are less than 1% of the conversion rate and make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1% within one year of the first such adjustment carried forward, upon a designated event, upon a fundamental change or upon

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maturity.  Except as described in this section or in “— Adjustment to Conversion Rate upon Conversion upon Fundamental Change” below, we will not adjust the conversion rate.

Treatment of Reference Property.  In the event of:

(1)          any reclassification of our common stock;

(2)          a consolidation, merger or combination involving us; or

(3)          a sale or conveyance to another person of all or substantially all of our property and assets,

in which holders of our outstanding common stock would be entitled to receive cash, securities or other property, or the “reference property,” for their shares of common stock, holders of notes will be entitled thereafter to convert their notes into the same type and amount of consideration that they would have been entitled to receive if they had held a number of shares of our common stock equal to the conversion rate then in effect immediately prior to these events; provided, however, that upon conversion any such holder will continue to receive cash in satisfaction of all or a portion of the conversion consideration as described under “— Payment upon Conversion,” with the conversion value calculated based on the reference property.  In the case of any event described in clauses (1) through (3) above, the Company or the successor or the purchasing person will execute a supplemental indenture providing for the conversion and settlement of notes as set forth above.  Such supplemental indenture will provide that if the reference property includes securities that require registration with or approval of any governmental authority under any federal or state law before such securities may be validly issued upon conversion of notes, the Company or the successor or the purchasing person, as the case may be, will use all commercially reasonable efforts, to the extent then permitted by the rules and interpretations of the SEC (or any successor thereto) or such other governmental authority, to secure such registration or approval.

For purposes of the foregoing, the type and amount of consideration that a holder of our common stock would have been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions that cause our common stock to be converted into the right to receive more than a single type of consideration determined, based in part upon any form of stockholder election, will be deemed to be the weighted average of the types and amounts of consideration received by the holders of our common stock that affirmatively make such an election.  In addition, if the transaction constitutes a fundamental change and holders of notes convert their notes in connection with the transaction, we will, under certain circumstances, increase the conversion rate for such converting holders, as described below under “— Adjustment to Conversion Rate upon Conversion upon Fundamental Change.”

Treatment of Rights.  To the extent that we have a rights plan in effect at the time of conversion of the notes into common stock, the holder of the notes so converted will receive, in addition to any common stock, the rights under the rights plan, unless prior to any conversion, the rights have separated from the common stock, in which case the conversion rate will be adjusted at the time of separation as if we distributed to all holders of our common stock, shares of our capital stock, evidences of indebtedness or assets as described in clause (3) under “— Adjustment Events” above, subject to readjustment in the event of the expiration, termination or redemption of such rights.

Voluntary Increases of Conversion Rate.  We are permitted, to the extent permitted by law, to increase the conversion rate of the notes by any amount for a period of at least 20 days if our board of directors determines that such increase would be in our best interest.  We may also, but are not required to, increase the conversion rate to avoid or diminish income tax to holders of our common stock or rights to purchase shares of our common stock in connection with a dividend or distribution of shares or rights to acquire shares or similar event.

Tax Effect.  A holder may, in some circumstances, including the distribution of cash dividends to holders of our shares of common stock, be deemed to have received a distribution or dividend subject to U.S. federal income tax as a result of an adjustment or the nonoccurrence of an adjustment to the conversion rate.  For a discussion of the U.S. federal income tax treatment of an adjustment to the conversion rate, see “Certain United States Federal Income Tax Considerations.”

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