Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Data General Corporation
(Exact name of Registrant as specified in its charter)
Delaware 04-2436397
(State or other jurisdiction of (IRS Employer Identification No.)
ncorporation or organization
4400 Computer Drive, Westboro, Massachusetts (508) 898-5000
(address, including zip code and telephone number of regi
principal executive offices)
1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
RONALD L. SKATES
President and Chief Executive Officer
Data General Corporation
4400 Computer Drive
Westboro, Massachusetts 01580
(508) 898-5000
(name, address, including zip code and telephone number of agent for service)
Copies of all communications, including all communications
sent to the agent for service, should be sent to:
Carl E. Kaplan, Esq.
Fulbright & Jaworski L.L.P
666 Fifth Avenue
New York, New York 10103
Approximate date of proposed commencement of sales pursuant to the 1994
Non-Employee Director Stock Option Plan: As and when options become
exercisable after the effective date of this Registration Statement.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of each class of Amount to be Proposed Maximum Proposed maximum Amount of
securities to be registered offering price aggregate offering registration
registered per share price fee
(a) (a)
Common Stock, $.01 150,000 $7.75 $1,200,000 $401.00
par value shares
</TABLE>
(a) The price stated is estimated in accordance with Rule 457(g)
under the Securities Act of 1933, as amended, solely for the purpose
of calculating the registration fee and is the product resulting from
multiplying the sum of the number of additional shares registered as
part of this Registration Statement (150,000) as to which options may
be granted under the Plan by the closing sale price for the Common
Stock ($7.75) on the New York Stock Exchange on April 5, 1994.
Data General Corporation
Employee Qualified Stock Purchase Plan
Cross Reference Sheet Pursuant to Item 501(b) of Regulation S-K
Form S-8 Item No. Heading or Location in Prospectus
1. Forepart of Registration Statement and Outside Front
Cover Page of Prospectus
(a) .. . .. . .. . .. . .. . .. . . Facing Page
(b) . . . . . . . . . . . . . . . . Cross-Reference Sheet
(c) . . . . . . . . . . . . . . . . Outside Front Cover
2. Inside Front Page and Outside Back Cover Pages of Prospectus
(a) . . . . . . . . . . . . . . . . Inside Front Cover
(b) . . . . . . . . . . . . . . . . *
(c) . . . . . . . . . . . . . . . . Inside Front Cover
(d) . . . . . . . . . . . . . . . . *
(e) . . . . . . . . . . . . . . . . *
(f) . . . . . . . . . . . . . . . . *
(g) . . . . . . . . . . . . . . . . Outside Back Cover
3. Summary Information and Risk Factors and Ratio of
Earnings to Fixed Charges
(a) . . . . . . . . . . . . . . . . Introduction
(b) . . . . . . . . . . . . . . . . Introduction
(c) . . . . . . . . . . . . . . . . *
(d) . . . . . . . . . . . . . . . . *
4. General Information Regarding the Plan
(a) . . . . . . . . . . . . . . . Outside Front Cover, Introduction
(b) . . . . . . . . . . . . . . . The Plan-Nature and Purposes
(c) . . . . . . . . . . . . . . . . The Plan-Federal Tax
(d) . . . . . . . . . . . . . . . . The Plan-Eligibility and Participation
(e) . . . . . . . . . . . . . . . The Plan-Federal Tax
(f) . . . . . . . . . . . . . . . . *
5. Securities to be Offered and Employees Who May
Participate in the Plan
(a) . . . . . . . . . . . . . . . . Outside Front Cover: The Plan
(b) . . . . . . . . . . . . . . . . The Plan-Resale of Shares
(c) . . . . . . . . . . . . . . . . The Plan-Eligibility and Participation
(d) . . . . . . . . . . . . . . . . The Plan
6. Purchase of Securities Pursuant
to the Plan. The Plan-Grant and Exercise of Options
7. Payment for Securities Offered
(a) . . . . . . . . . . . . . . . . The Plan-Grant and Exercise of Options
(b) . . . . . . . . . . . . . . . . *
8. Contributions under the Plan. . . . *
9. Withdrawal from the Plan - Assignment of Interest
(a) . . . . . . . . . . . . . . . . *
(b) . . . . . . . . . . . . . . . . The Plan NonTransferability of Options
10. Defaults under the Plan . . . . . . *
11. Administration of the Plan
(a) . . . . . . . . . . . . . . . . The Plan-Administration
(b) . . . . . . . . . . . . . . . . The Plan-Administration
12 Investment of Funds . . . . . . . . *
13. Charges, Deductions and Liens therefor . *
14. Description of Registrant's Securities
(a) . . . . . . . . . . . . . . . . Incorporation by Reference
(b) . . . . . . . . . . . . . . . . *
15. Incorporation of Certain Documents Incorporation by Reference
by Reference
16. Additional Information. . . . . . . *
17. Interest of Named Experts and . . . Appendix B
Counsel
18. Disclosure of Commission Position . Securities and Exchange
on Indemnification for Securities . Commission Position on
Act Liabilities Indemnification for
Securities Act Liabilities
- ------------------
* Not Applicable
P R O S P E C T U S
150,000 Shares
Data General Corporation
Common Stock
($.01 Par Value)
Under the
Data General Corporation
1994 Non-Employee Director Stock Option Plan
_______________
Participation in Data General Corporation's 1994 Non-Employee
Director Stock Option Plan (the "Plan") is offered on the basis set forth
herein to each non-employee director upon his election to the Board of
Directors of Data General Corporation upon the terms and conditions of
individual option agreements entered into pursuant to the Plan. Data
General Corporation is herein referred to as the "Company" or "Data
General."
_______________
Offers or resales of shares of common stock acquired under the
Plan by "affiliates" of the Company, as defined in Rule 405 under the
Securities Act of 1933, as amended (the "1933 Act"), are subject to
certain restrictions (see "Resale of Shares By Affiliates").
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
No person has been authorized to give any information or to
make any representation other than as contained herein in connection
with the offer contained in this Prospectus and, if given or made, such
information or representation must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an
offer to sell, or a solicitation of an offer to buy, any of the securities
offered by this Prospectus in any jurisdiction to any person to whom it is
unlawful to make such an offer of solicitation.
_______________
The date of this Prospectus is April 6, 1994
The delivery of this Prospectus at any time does not imply that
information herein is correct as of any time subsequent to the date of
this Prospectus. Statements in this Prospectus as to the provisions
of the Plan are not necessarily complete and in each instance
reference is made to the copy of the Plan which appears as Appendix
A to the Prospectus, and each such statement in this Prospectus is
qualified in all respects by such reference.
The Company does not intend to update this Prospectus in the
future unless and until there is a material change in the information
contained herein. However, the Company intends to reflect any change
in the information contained in this Prospectus by distributing, as and
when considered appropriate by the Company in light of the nature of
such change, an Appendix to every person to whom this Prospectus has
previously been given and who continues to hold or is granted an
outstanding option under the Plan, unless such change (i) is reflected in
any document filed by the Company with the Securities and Exchange
Commission (the "Commission") after the date of this Prospectus and
incorporated by reference into this Prospectus, (ii) is otherwise
communicated to such person in accordance with the rules and
regulations of the Commission in effect from time to time, or (iii) is not
required to be reflected in an update to this Prospectus by such rules
and regulations. Notwithstanding the foregoing, any person holding
options who receives only the Appendix may obtain a copy of this
Prospectus, upon request, from the Company, 4400 Computer Drive,
Westboro, Massachusetts 01580, Attention: Mr. David Roy, Office of
Public Affairs.
AVAILABLE INFORMATION
Data General is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in
accordance therewith, files proxy statements, reports and other
information with the Commission. Such proxy statements, reports and
other information filed by the Company may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 or at the Regional Offices of the
Commission: Suite 1400, Northwestern Atrium Center, West Madison
Street, Chicago, Illinois 60661 and Room 1100, Jacob Javits Federal
Building, 26 Federal Plaza, New York, New York, 10007. Copies of such
material can be obtained at prescribed rates from the Public Reference
section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. In addition, such information can be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
The Company has filed with the Commission a Registration
Statement under the 1933 Act with respect to the securities offered
hereby. This Prospectus does not contain all the information set forth
in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For
further information with respect to the Company and the securities
covered hereby, reference is made to the Registration Statement and to
the exhibits thereto filed as a part thereof.
The Company will furnish without charge to each person to whom
this Prospectus is delivered, upon request, a copy of any or all of the
documents that have been incorporated by reference in the Registration
Statement of which this Prospectus is a part, other than exhibits to such
documents. Requests should be addressed to: Mr. David Roy, Office
of Public Affairs, Data General Corporation, 4400 Computer Drive,
Westboro, Massachusetts 01580 (telephone number (508) 898-5000).
INTRODUCTION
The Company has filed a Registration Statement with the
Commission under the 1933 Act for the registration of 32,000 shares of
Common Stock, $.01 par value per share ("Common Stock"), of Data
General Corporation which may be purchased by the exercise of options
granted pursuant to the Plan.
The principal executive offices of the Company are located at
4400 Computer Drive, Westboro, Massachusetts 01580 and the
telephone number is (508) 898-5000.
THE PLAN
Nature and Purposes of the Plan
The Plan was adopted by the Board of Directors on November
1, 1993 and approved by the stockholders on January 26, 1994. The
Plan is intended to strengthen the ability of the Company to attract and
retain the services of knowledgeable and experienced persons who,
through their efforts and expertise, can make a substantial contribution
to the success of the Company's business by serving as members of the
Company's Board of Directors and to provide additional incentive for
such non-employee directors to continue to work for the best interests of
the Company and its stockholders through continuing ownership of its
Common Stock.
Duration and Modification
The Plan will terminate on December 31, 2004; provided,
however, that options granted on or before such date will remain
exercisable, in accordance with their respective terms, after the
termination of the Plan.
The Board of Directors of the Company may at any time
terminate or from time to time modify or suspend the Plan, provided that
no such modification without the approval of the stockholders of the
Company shall: (a) increase the maximum number of shares which may
be issued under the Plan in the aggregate or the number of shares which
may be issued to any one non-employee director (except for appropriate
adjustments in the event of split-ups, combinations of shares,
recapitalizations or stock dividends); or (b) amend the option exercise
price (except for appropriate adjustments in the event of split-ups,
combinations of shares, recapitalizations or stock dividends); (c) extend
the period during which options may be granted under the Plan; or (d)
shorten the period over which the restrictions against disposition and the
obligation of resale lapse except as otherwise provided in the Plan.
Administration of the Plan
The Plan shall be administered by the Board of Directors of the
Company. The address of the Board is c/o Data General Corporation,
4400 Computer Drive, Westboro, Massachusetts 01580. For information
regarding the present composition of the Board of Directors, see
Appendix B.
Federal Income Tax Consequences
Fulbright & Jaworski, L.L.P., counsel to the Company, has
provided the Company with the following general description of the
Federal income tax consequences of the grant and exercise of options
and the sale of option shares. These consequences will vary depending
upon, among other factors, whether the optionee pays the exercise price
with shares or with consideration other than shares. Each optionee is
urged to consult his own tax advisor regarding his participation in the
Plan.
An option granted under the Plan is a non-statutory option and
is taxed in accordance with Section 83 of the Internal Revenue Code of
1954, as amended (the "Code"), and the regulations thereunder. Such
option is not a "restricted stock option" within the meaning of Section 424
of the Code. The general tax rules applicable to such options are
summarized below.
1. An optionee will recognize no taxable income upon the grant
of an option.
2. In the event an optionee exercises an option or acquires
shares which are not subject to the restrictions on disposition
or obligation of resale imposed under the Plan or to other
restrictions which make the shares "non-transferable" or subject
to a "substantial risk of forfeiture" under Section 83 of the Code,
the optionee will recognize gain taxable as ordinary income on
the date the shares are "transferred" to the optionee to the extent
that the market value of the shares on such date exceeds the
exercise price. The holding period for determining long-term
capital gain on shares purchased by the optionee begins on the
date the shares are transferred to the optionee, and the basis of
the shares will equal the market value of the shares on such
date. Shares will be treated as having been transferred to an
optionee on the date the shares are issued to such optionee,
which date generally will be the date of exercise of the option.
3. If an optionee exercises an option and acquires shares which
are subject to the restrictions on disposition and obligation of
resale imposed under the Plan or to other restrictions which
make the shares "non-transferable" and subject to a "substantial
risk of forfeiture" under Section 83 of the Code, the optionee
generally will not recognize gain taxable as ordinary income until
the date on which such restrictions lapse. The amount of the
gain on such date will equal the amount by which the market
value of the shares on such date exceeds the exercise price.
The holding period for determining long-term capital gain on
shares purchased by the optionee begins on such date, and the
basis of the shares will equal the market value of the shares on
such date.
4. As an alternative to the result described in (3), an optionee
who exercises an option may elect, within a period not later than
30 days after the shares are transferred to the optionee, to treat
the shares as not subject to a substantial risk of forfeiture and
thus recognize ordinary income for the year in which the shares
are transferred to the extent of the difference, if any, between the
fair market value of the shares on the date of transfer and the
exercise price. Once the election is made it may not be revoked
without the consent of the Secretary of the Treasury. If such an
election is made, any appreciation in the value of the shares
occurring subsequent to the date of transfer will be eligible for
capital gain treatment, and in the event of a forfeiture of the
shares under the Plan subsequent to the election, the optionee
will not be allowed a deduction in respect of such forfeiture.
The holding period for determining long-term capital gain on
shares purchased by an optionee who makes such an election
begins on the date of transfer, and the basis of the shares will be
an amount equal to their market value on the date of transfer.
5. If the shares acquired upon the exercise of an option are
sold subsequent to the date on which ordinary income is
recognized as discussed above, any gain or loss on such sale
will be a capital gain or loss to the extent of the difference
between the basis of the shares and the amount realized on the
sale of the shares.
6. Some but not all of the Federal income tax consequences of
an optionee's use of shares as payment for all or a portion of the
exercise price of a non-statutory stock option are set forth in a
ruling published by the Internal Revenue Service in 1980. Under
the ruling, one set of tax consequences applies to those shares
received which are equal in number to the number of shares
surrendered and another set of tax consequences applies to
those shares received which are in excess of the number of
shares surrendered.
The ruling provides that if an optionee pays the exercise price
of an option with stock and receives shares which are not
subject to restrictions which make the shares "non-transferable"
or subject to a "substantial risk of forfeiture" under Section 83 of
the Code, then as to those shares received which are equal in
number to the number of shares surrendered:
(i) no gain or loss will be recognized by the optionee upon the
receipt of such shares or upon the surrender of shares in
payment of the exercise price;
(ii) the optionee's basis in the shares received will be the same
as his basis in the shares surrendered; and
(iii) the holding period of the shares received will include the
holding period of the shares surrendered.
To the extent the number of shares received on the exercise
exceeds the number of shares surrendered and if, as in the
ruling, the shares received are not subject to restrictions which
make the shares "non-transferable" or subject to a "substantial
risk of forfeiture" under Section 83 of the Code, then as to such
excess shares:
(i) the optionee will recognize ordinary income in an amount
equal to the fair market value of the excess shares on the date
such shares are transferred to the optionee;
(ii) the optionee's basis in the excess shares will equal their fair
market value on the date such shares are transferred to the
optionee; and
(iii) the holding period for such excess shares will begin on the
date such shares are transferred to the optionee.
In general, the Company will be allowed a business expense
deduction to the extent that an optionee is required to recognize
ordinary income pursuant to the foregoing rules.
The Plan is not a qualified pension, profit sharing or stock bonus
plan under Section 401(a) of the Code nor is it an "employee benefit
plan" subject to the provisions of the Employee Retirement Income
Security Act of 1974.
Securities Subject to the Plan
The Company has reserved an aggregate of 150,000 shares of
Common Stock for issuance under the Plan. If, prior to the termination
of the Plan, options granted expire or terminate for any reason without
having been exercised in full, or shares issued under the Plan are
reacquired by the Company pursuant to the provisions of the Plan, such
shares (or unpurchased shares subject to option) will again become
available for issuance under the Plan. For information regarding the
number of shares issued, outstanding and available for the grant of
additional options under the Plan as of a recent date, see Appendix B.
Adjustment of Option Shares
In the event that the number of outstanding shares of Common
Stock of the Company shall be changed by reason of split-ups,
combinations of shares, recapitalizations or stock dividends, the number
of shares covered by outstanding options, the option exercise price and
the number of shares which may thereafter be available under the Plan
may be appropriately adjusted as determined by the Board of Directors
so as to reflect any such change.
Eligibility and Participation
Options to purchase up to 4,000 shares of the Company's
Common Stock shall automatically be granted under the Plan to each
non-employee director of the Company on the date of his election(s) to
the Board of Directors. Directors who, on the date of their election(s) to
the Board, are also officers of the Company are not eligible to receive
options under the Plan.
Non-Transferability of Options
No option under the Plan shall be sold, assigned, pledged,
encumbered or otherwise transferred by the employee who is granted
such option.
Restrictions on Disposition and Obligation of Resale of Stock
Shares of Common Stock acquired by a non-employee director
pursuant to the exercise of an option under the Plan shall not be sold,
transferred, or otherwise disposed of and shall not be pledged or
otherwise hypothecated, except as provided below. (Any such sale,
transfer or other disposition, or any pledge or other hypothecation shall
hereinafter be referred to as a "disposition".) In the event of the
non-employee director's cessation of service as a director for any reason
except death or with the consent of the Company, such shares shall,
except as provided below, be offered for resale to the Company at their
original acquisition price. Shares as to which the restrictions against
disposition and the obligation of resale to the Company have lapsed in
accordance with the provisions set forth below shall be referred to as
"free shares." Shares as to which the restrictions against disposition and
obligation of resale to the Company have not lapsed as provided below
shall be referred to as "restricted shares."
The restrictions against disposition and the obligation of resale
to the Company of shares acquired pursuant to the Plan shall lapse
cumulatively to the extent of twenty-five percent (25%) of the grant on
each anniversary date of the date of the non-employee director's initial
election as a director. Any provision for the lapse of the restrictions
against disposition and the obligation of resale shall apply with respect
to shares subject to an option whether or not the option has been
exercised in whole or in part on the date of lapse. Upon the occurrence
of the earlier of the death of the non-employee director or the
non-employee director's cessation of service as a director with the
consent of the Company the restrictions against disposition and
obligation of resale to the Company of shares as to which such
restrictions and obligation have not otherwise lapsed under the Plan shall
immediately lapse. In the event of the non-employee director's cessation
of service as a director for any reason except death or with the consent
of the Company, shares issued to the optionee pursuant to the exercise
of an option under the Plan which have not, as of the date of cessation
of service as a director, become free shares, as defined above, shall
become subject to an obligation of immediate resale to the Company.
Shares subject to such obligation of resale shall be delivered to the
Company within 30 days following the optionee's cessation of service as
a director. Within 60 days following a timely delivery of shares, the
Company will compensate the non-employee director (at the original
acquisition price) for such number of shares as the Company elects to
purchase and will return to the non-employee director any shares not so
purchased. In the event the Company declines to repurchase any or all
of such shares, the shares shall remain the property of the non-employee
director and all remaining restrictions shall lapse at the rate set forth in
the Plan. Restricted shares which are not delivered to the Company
within 30 days following the cessation of service as a director shall
remain subject to the restrictions against disposition and such restrictions
shall not lapse as otherwise provided in the Plan and in the
non-employee director's option agreement. The Company is not required
to repurchase shares issued to employees under the Plan.
Notwithstanding any of the foregoing restrictions, any free or
restricted shares acquired under the Plan may at any time be pledged or
otherwise hypothecated to secure borrowings by the non-employee
director to obtain the acquisition price to be paid by the non-employee
director for such shares; provided, however, that the amount of such
borrowing may not exceed the acquisition price of such shares.
Resale of Shares by Affiliates
Shares of the Company's Common Stock purchased upon
exercise of options granted under the Plan may be resold freely, except
that any optionee deemed to be an "affiliate" of the Company, within the
meaning of the 1933 Act and the rules and regulations promulgated
thereunder, may not sell shares acquired upon exercise of options
granted under the Plan unless such shares have been registered by the
Company under the 1933 Act for resale by such optionee or an
exemption from registration under the 1933 Act is available. Rule 144,
promulgated under the 1933 Act, which contains limitations on the
manner of sale and the amount of shares that may be sold, provides an
exemption from registration under the 1933 Act. A director of the
Company may be deemed an "affiliate" of the Company.
Directors-Section 16(b) Liability
Section 16(b) of the 1934 Act provides, generally, that any profit
realized by a director of the Company from the purchase and sale or sale
and purchase of any equity security of the Company within any six-month
period is recoverable by the Company. With respect to options granted
under the Plan, the grant of the option will generally constitute a
"purchase" and the sale of shares received pursuant to the Plan will
generally constitute a sale for purposes of Section 16(b). The surrender
of shares of Common Stock previously owned to acquire additional
shares by exercise of an option will not constitute a "sale."
The Company believes that the Plan meets the requirements of
Section 16(b)(3) of the 1934 Act and, accordingly, the acquisition of an
option by a director of the Company will be exempt from the operations
of Section 16(b).
Grant and Exercise of Options; Death and Cessation of Service as a
Director
A non-employee director electing to exercise an option under the
Plan shall give written notice to the Company of such election and of the
number of shares the non-employee director has elected to acquire.
Until the non-employee director has been issued a certificate or
certificates for the shares so acquired, the non-employee director shall
possess no stockholder rights with respect to any such shares.
The option price shall be payable upon the exercise of the option
and shall be payable in cash, by certified check, by cashier's check, or
in shares of Common Stock. If shares of Common Stock are tendered
as payment of the option exercise price, the value of such shares shall
be their fair market value as of the date of exercise. If such tender would
result in the issuance of fractional shares of Common Stock, the
Company shall instead return the difference in cash or by check to the
non-employee director.
The exercise price for options granted under the Plan shall be
one hundred per cent (100%) of the fair market value per share of
Common Stock on the date of such grant.
Any questions as to the acquisition price of shares, and whether
there has been a cessation of service as a director shall, subject to the
Plan, be determined by the Board of Directors and its determination of
such questions shall be final. In addition, in the event of any split-ups,
combinations of shares, recapitalizations or stock dividends, the Board
of Directors is authorized to make appropriate adjustments in the option
agreements.
The individual option agreements provide that options must,
except in cases involving a non-employee director's death or cessation
of service as a director with the consent of the Company, be exercised
by the non-employee director while a director of the Company. If a
non-employee director dies while serving as a director of the Company
prior to the expiration of his option, his executor, personal representative
or beneficiary, as the case may be, has the right to exercise the option
to the extent the non-employee director could have exercised the option
at the time of his death, at any time within twelve months from the date
of death. If the non-employee director shall cease to serve as a director
with the consent of the Company before his option shall have terminated,
he must exercise the option within twelve months after the date on which
he ceases to serve as a director of the Company.
OPTIONS OUTSTANDING
For information regarding outstanding options as of a recent
date, see Appendix B.
REPORTS TO STOCKHOLDERS AND OPTIONHOLDERS
The Company will furnish its stockholders and persons holding
options under the Plan with annual reports containing audited
consolidated financial statements and with quarterly reports for the first
three quarters of its fiscal year containing unaudited condensed
consolidated statements of operations.
LEGAL MATTERS
Legal matters in connection with the sale of the shares of
Common Stock offered hereby are being passed upon for the Company
by Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New York, New York.
For information regarding the ownership of Common Stock by
certain partners and associates of Fulbright & Jaworski L.L.P. as of a
recent date, see Appendix B.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K of Data
General Corporation for the fiscal year ended September 25, l993, have
been so incorporated in reliance on the report of Price Waterhouse,
independent accountants, given on the authority of said firm as experts
in auditing and accounting.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission are incorporated in and made a part of this Prospectus by
reference as of their respective dates:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended September 25, 1993.
(2) The Company's Quarterly Report on Form 10-Q for the
thirteen weeks ended December 25, 1993.
(3) The description of the Company's Common Stock in Item 1
of the Company's Registration Statement on Form 8-A under the
'34 Act, dated November 7, 1973.
In addition to the foregoing documents, all documents
subsequently filed by the Company with the Commission pursuant to
Sections 13, 14 or 15(d) of the '34 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference and to be a part hereof from
the date of filing of such documents.
SECURITIES AND EXCHANGE COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the General Corporation Law of Delaware permits
indemnification of directors, officers and employees of a corporation
under certain conditions and subject to certain limitations. Article VI of
the Company's By-Laws contains provisions for the indemnification of
directors, officers and employees of the Company within the limitations
permitted by Section 145.
The Company carries a directors' and officers' liability insurance
policy which provides for payment of certain liabilities and related
expenses of the Company's directors and officers in connection with
threatened, pending or completed actions, suits or proceedings against
them in their capacities as directors and officers, in accordance with the
Company's By-Laws and the General Corporation Law of Delaware.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers, or persons controlling the
Company pursuant to the foregoing provisions, the Company has been
informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933
Act and is therefore unenforceable.
APPENDIX A
DATA GENERAL CORPORATION
1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose
The Data General Corporation 1994 Non-Employee Director Stock
Option Plan (the "Plan") is intended to strengthen the ability of Data
General Corporation (the "Company") to attract and retain the services of
knowledgeable and experienced persons who, through their efforts and
expertise, can make a significant contribution to the success of the
Company's business by serving as members of the Company's Board of
Directors and to provide additional incentive for such non-employee
directors to continue to work for the best interests of the Company and
its stockholders through continuing ownership of its Common Stock, $.01
par value ("Common Stock"). Accordingly, the Company will grant to
each non-employee director (the "Optionee") an option (the "Option") to
purchase shares of Common Stock of the Company on the terms and
conditions hereinafter established.
2. Administration of the Plan
The Plan shall be administered by the Board of Directors of the
Company. The interpretation and construction by the Committee of any
provisions of the Plan or of any agreement or of other matters related to
the Plan shall be final. The Board of Directors may from time to time
adopt such rules and regulations for carrying out the Plan as it may
deem advisable. No member of the Board of Directors shall be liable for
any action or determination made in good faith with respect to the Plan.
3. Stock Subject to the Plan
The shares to be issued under the Plan shall be made available
either from authorized but unissued shares of Common Stock of the
Company or from shares of Common Stock reacquired by the Company,
including shares purchased in the open market.
Shares issued under the Plan shall be subject to the terms,
conditions and restrictions specified in the Plan.
Subject to the provisions of the succeeding paragraphs of this
Section 3, the aggregate number of shares which may be issued under
the Plan shall not exceed 150,000 shares.
If prior to December 31, 2004, shares issued under the Plan shall
be reacquired by the Company pursuant to the provisions hereof, such
shares shall again become available for issuance under the Plan.
In the event that the number of outstanding shares of Common
Stock of the Company shall be changed by reason of split-ups,
combinations of shares, recapitalizations or stock dividends, the number
of shares which may thereafter be available under the Plan, the number
of shares held under Option and the option exercise price may be
appropriately adjusted as determined by the Board of Directors so as to
reflect any such change.
4. Eligibility and Grant of Options
An Option to purchase 4,000 shares of the Company's Common
Stock shall automatically be granted under the Plan to each
non-employee director of the Company on the date(s) of his election(s)
to the Board of Directors. A newly elected director who receives an
option to purchase the Company's Common Stock pursuant to the Non-
Employee Director Restricted Stock Option Plan, or similar option plan for
a director's initial election to the Board of Directors, will not be eligible to
receive an option pursuant to the Plan. Directors who, on the date of
their election(s) to the Board, are also officers of the Company are not
eligible to receive an Option under the Plan.
The exercise price for Options granted under the Plan shall be
one hundred (100%) percent of the closing price per share on the New
York Stock Exchange of Common Stock on the date of such grant.
5. Non-Transferability of Options
The term of the Option shall be for a period of ten years from the
date of issuance. The right of the Optionee to purchase Common Stock
through the exercise of the Option, wholly or in part, shall be available to
the Optionee at any time during the term of the Option subject to the
restrictions on disposition and the obligation of resale as provided in
Section 7 hereof.
The Option shall be exercisable by the Optionee only while
serving as a director of the Company or upon his death or cessation of
service as a director with the consent of the Company. If the Optionee
shall die while serving as a director of the Company, his executor,
personal representative or beneficiary shall have the right to exercise the
Option at any time within twelve (12) months from the date of death or
cessation of service as a director with the consent of the Company in
respect of the total number of shares as to which he would be entitled to
exercise his Option at the date of his death or cessation of service as a
director with the consent of the Company.
If the Optionee shall cease to serve as a director with the consent
of the Company before the Option shall have terminated, the Optionee
may exercise the Option within ninety (90) days after the date on which
he ceases to serve as a director of the Company.
No Option under the Plan shall be sold, assigned, pledged,
encumbered or otherwise transferred by the Optionee.
6. Exercise of Options
An Optionee electing to exercise an Option under the Plan shall
give written notice to the Company of such election and of the number
of shares the Optionee has elected to acquire. Until the Optionee has
been issued a certificate or certificates for the shares so acquired, the
Optionee shall possess no stockholder rights with respect to any such
shares.
7. Restrictions on Disposition and Obligation of Resale
Shares of Common Stock acquired by an Optionee pursuant to
the exercise of an Option under the Plan shall not be sold, transferred,
or otherwise disposed of and shall not be pledged or otherwise
hypothecated, except as provided below. (Any such sale, transfer or
other disposition, or any pledge or other hypothecation shall hereinafter
be referred to as a "disposition.") In the event of the Optionee's
cessation of service as a director for any reason except death or with the
consent of the Company, such shares shall be offered for resale to the
Company at their original acquisition price. Shares as to which the
restrictions against disposition and the obligation of resale to the
Company have lapsed in accordance with the provisions set forth below
shall be referred to as "free shares." Shares as to which the restrictions
against disposition and the obligation of resale to the Company have not
lapsed as provided below shall be referred to as "restricted shares."
The restrictions against disposition and the obligation of resale
to the Company of shares acquired pursuant to the Plan shall
lapse cumulatively to the extent of twenty-five percent (25%) of
the grant on each anniversary date of the date of the Optionee's
initial election as a director. Any provision for the lapse of the
restrictions against disposition and the obligation of resale shall
apply with respect to shares subject to an Option whether or not
the Option has been exercised in whole or part on the date of
lapse.
In the event of a "Change In Control," as defined herein, the
restrictions against disposition and the obligations of resale to
the Company of shares as to which such restrictions and
obligation have not otherwise lapsed under the Plan shall
immediately lapse.
Upon the occurrence of the earlier of the death of the Optionee,
the Optionee's cessation of service as a director with the consent
of the Company, the restrictions against disposition and the
obligation of resale to the Company of shares as to which such
restrictions and obligation have not otherwise lapsed under the
Plan shall immediately lapse.
In the event of the Optionee's cessation of service as a director
for any reason except death or with the consent of the Company,
shares issued to the Optionee pursuant to the exercise of an
Option under the Plan, which shares have not, as of the date of
termination of employment, become free shares as defined
above, shall become subject to an obligation of immediate resale
to the Company. Shares subject to such obligation of resale
shall be delivered to the Company within 30 days following the
termination of employment. Within 60 days following a timely
delivery of shares, the Company will compensate the Optionee
(at the original acquisition price) for such number of shares as
the Company elects to purchase and will return to the Optionee
any shares not so purchased. Restricted shares which are not
delivered to the Company within 30 days following the cessation
of service as a director shall remain subject to the restrictions
against disposition and such restrictions shall not lapse as
otherwise provided in this Section 7. Nothing in this Section 7
shall require the Company to repurchase shares issued to
Optionees under the Plan.
Notwithstanding any of the foregoing restrictions, any shares
acquired under the Plan may at any time be pledged or
otherwise hypothecated to secure borrowing by the Optionee to
obtain the acquisition price to be paid by the Optionee for such
shares; provided, however, that the amount of such borrowing
may not exceed the acquisition price of such shares.
Any questions as to whether and when there has been a
termination of employment, and (subject to Section 4 of the Plan)
any questions as to the acquisition price of shares, shall be
determined by the Board of Directors and its determination of
such questions shall be final.
A "Change In Control" of the Company means for purposes of the
Plan: (i) the acquisition, other than from the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of either the then
outstanding shares of Common Stock of the Company (the "Outstanding
Company Common Stock") or the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Securities"),
provided, however, that any acquisition by the Company or any of its
subsidiaries, or by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any of its subsidiaries, or by any
corporation with respect to which, following such acquisition, more than
60% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or indirectly, by
the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior
to such acquisition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, shall not
constitute a change of control; or (ii) individuals who, as of January 1,
1994 constitute the Board (the Incumbent Board") cease for any reason
to constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to January 1, 1994 whose election, or
nomination for election, by the Company's stockholders, was approved
by a vote of at least a majority of the directors then comprising the
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors of the
Company (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act); or (iii) approval by the
stockholders of the Company of a reorganization, merger or
consolidation, in each case, with respect to which all or substantially all
of the individuals and entities who were the respective beneficial owners
of the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such reorganization, merger or
consolidation beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger or consolidation,
or of a complete liquidation or dissolution of the Company or of the sale
or other disposition of all or substantially all of the assets of the
Company.
8. Payment
The option exercise price shall be payable upon the exercise of
the Option and shall be payable in cash, by cashier's check, by certified
check or in shares of Common Stock. If shares of Common Stock are
tendered as payment of the option exercise price, the value of such
shares shall be their fair market value as of the date of exercise. If such
tender would result in the issuance of fractional shares of Common
Stock, the Company shall instead return the difference in cash or by
check to the Optionee.
9. Notice of Election under Section 83(b)
Each Optionee making an election under Section 83(b) of the
Internal Revenue Code of 1954, as amended, and the Regulations and
Rulings promulgated thereunder will provide a copy thereof to the
Company within 30 days of the filing of such election with the Internal
Revenue Service.
10 - Amendments to the Plan
The Board of Directors of the Company may at any time
terminate or from time to time modify or suspend the Plan, provided that
no such modification without the approval of the stockholders of the
Company shall:
(a) increase the maximum number of shares which may be
issued under the Plan in the aggregate or the number of shares
which may be issued to each non-employee director (except as
permitted by the last two paragraphs of Section 3);
(b) extend the period during which Options may be granted
under the Plan;
(c) shorten the period over which the restrictions against
disposition and the obligation of resale lapse (except as
permitted by the fourth paragraph of Section 7); or
(d) amend the option exercise price (except as permitted by the
last paragraph of Section 3); or
11. Successors and Assigns
The provisions of this Plan shall be binding upon all successors
and assigns of an Optionee acquiring shares under the Plan, including,
without limitation, the estate of any such Optionee and the executors,
administrators or trustees of such estate, and any receiver, trustee in
bankruptcy or representative of the creditors of any such Optionee.
12. Termination Date of the Plan
The Plan shall terminate on December 31, 2004; provided,
however, that Options granted on or before such date shall remain
exercisable, in accordance with their respective terms, after the
termination of the Plan.
APPENDIX B
CURRENT INFORMATION CONCERNING THE PLAN
1. Board of Directors:
As of January 31, 1994, the Board of Directors was comprised of Messrs.
Frederick R. Adler, Ferdinand Colloredo-Mansfeld, John G. McElwee, Ronald
L. Skates and Donald H. Trautlein. Mr. Adler is a partner in Fulbright
& Jaworski, counsel to the Company.
2. Securities Subject to the Plan:
As of January 26, 1994, of an aggregate of 150,000 shares of Common Stock
authorized under the Plan, options with respect to 16,000 shares had been
granted and were outstanding, and 134,000 shares of Common Stock were
reserved for issuance and available for the grant of additional options
under the Plan.
3. Extent of Participation:
As of January 26, 1994, four non-employee directors were eligible to
participate in the Plan and were participating in the Plan.
4. Options Outstanding:
The following table sets forth information, as of December 25, 1993,
regarding all options outstanding under the Plan:
Average Per
Number of Shares Share Option Range of
Subject to Option Exercise Price Expiration Dates
16,000 $8.50 1/26/2004
5. Legal Matters:
Frederick R. Adler, a director and officer of the Company, and is a partner
in Fulbright & Jaworski. Mr. Adler and certain partners and associates of
Fulbright & Jaworski beneficially owned an aggregate of 361,012 shares of
Common Stock as of December 31, 1993.
________________________________
TABLE OF CONTENTS
Page
Available Information................. 2
Introduction.......................... 3
The Plan.............................. 3
Nature and Purposes of
the Plan 3
Duration and Modification............ 3
Administration of the Plan........... 4
Federal Income Tax Status............ 4
Securities Subject to the
Plan 9
Adjustment of Option Shares 10
Eligibility and Participation 10
Non-Transferability ofOptions 10
Restrictions on Disposition 10
Resale of Shares by Affiliates 11
Grant and Exercise of Options
Officers and Directors-
Section 16(b) Liability 12
Death, Termination of Service as
Director 12
Reports to Stockholders and
Optionholders 13
Legal Matters 13
Experts 13
Appendix A--Copy of Plan 1-A
Appendix B
- Additional Information B-1
________________________________
150,000 Shares
DATA GENERAL CORPORATION
Common Stock
($.01 Par Value)
___________________
Non-Employee Director
Stock Option Plan
________________________________
PROSPECTUS
April 6, 1994
________________________________
PART II - INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware permits indemnifica-
tion of directors, officers and employees of a corporation under certain
conditions and subject to certain limitations. Article TENTH of the Restated
Certificate of Incorporation and Article VI of the Company's By-Laws contain
provisions for the indemnification of directors, officers and employees
within the limitations permitted by Section 145. The Company has also
entered into indemnification agreements with its directors and officers based
on the indemnification provisions in Section 145.
The Company carries a directors' and officers' liability insurance policy
which provides for payment of certain liability claims and related expenses
of the Company's directors and officers in connection with threatened, pending
or completed actions, suits or proceedings against them in their capacities as
directors and officers, in accordance with the Company's By-laws and the
General Corporation Law of Delaware.
Item 8. Exhibits
3(a) -The Data General Corporation Employee Qualified Stock Purchase Plan is
set forth in this Registration Statement as Appendix A to the prospectus.
3(b) -Restated Certificate of Incorporation of the Company, as amended,
including the Company's Certificate of Designation dated October 17, 1986,
previously filed as Exhibit 3(a) to the Company's Annual Report on Form
10-K for the fiscal year ended September 27, 1986, which is incorporated
herein by reference and the amendment to the Restated Certificate of
Incorporation of the Company previously filed as Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 28, 1987, which is
incorporated herein by reference.
3(c) By-Laws of the Company, as amended, previously filed as Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the quarter ended December 30,
1989, which is incorporated herein by reference.
5 Opinion of Fulbright & Jaworski L.L.P.
24(a) Consent of Price Waterhouse.
24(b) Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statementor any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorpor-
ated by reference in the registration statement.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the iniotial bona fide offering
thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnish pursuant to and meeting the
requirements of Rule 14a-3 or 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of the
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Data General
Corporation, as employer and issuer, certifies that it has reasonable grounds
to believe that it meets all the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Boston, Massachusetts, on
the 26th day of January, 1994.
DATA GENERAL CORPORATION
By:
(Ronald L. Skates, President)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
President and Director January 26, 1994
(Ronald L. Skates) (Principal Executive Officer)
Chairman of the January 26, 1994
(Frederick R. Adler) Executive Committee of Board
Directors and Director
Vice President and January 26, 1994
(Arthur W. DeMelle) Chief Financial Officer
(Principal Financial and
Accounting Officer)
Director January 26, 1994
(Ferdinand Colloredo-Mansfeld)
Director January 26, 1994
(John G. McElwee)
Director January 26, 1994
(Donald H. Trautlein)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of our report
dated October 26, 1993, which appears on page 29 of the 1993 Annual Report
to Stockholders of Data General Corporation, which is incorporated by reference
in Data General Corporation's Annual Report on Form 10-K for the year ended
September 25, 1993. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears on page 19 of such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
Price Waterhouse
Boston, Massachusetts
April 5, 1994
FULBRIGHT & JAWORSKI L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP
666 Fifth Avenue
New York, New York 10103
Data General Corporation March 28, 1994
4400 Computer Drive
Westboro, Massachusetts 01580
Dear Sirs:
We refer to the registration statement on Form S-8(the"Registration State-
ment"), to be filed by Data General Corporation (the "Company") with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to 150,000 shares (the "Shares") of the Company's Common
Stock, $.01 par value (the "Common Stock"), to be issued by the Company
pursuant to the Company's 1994 Non-Employee Director Stock Option Plan (the
"Plan").
As counsel for the Company, we have examined such corporate records, documents
and such questions of law as we have considered necessary or appropriate for
the purposes of this opinion and, upon the basis of such examination, advise
you that in our opinion the Company has taken all necessary corporate action
to authorize the issuance of the Shares pursuant to the Plan and, when issued
and paid for under the Plan in accordance with the Plan, such shares will be
validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to this firm under the caption "Legal Matters" in
the prospectus contained therein. This consent is not to be construed as an
admission that we are a party whose consent is required to be filed with the
Registration Statement under the provisions of the Securities Act of 1933,
as amended.
Very truly yours,
Fulbright & Jaworski L.L.P.
