As filed with the Securities and Exchange Commission on July 11, 1997
Registration No. __
================================================================================
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 (I.R.S. Employer Identification
Incorporation or Organization) Number)
4400 Computer Drive
Westboro, MA 01580
(508) 898-5000
(Address of Principal Executive Offices) (Zip Code)
DATA GENERAL CORPORATION
EMPLOYEE QUALIFIED STOCK PURCHASE PLAN
DATA GENERAL CORPORATION
STOCK COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
RONALD L. SKATES
DATA GENERAL CORPORATION
4400 Computer Drive
Westboro, MA 01580
(Name and Address of Agent For Service)
Telephone Number, Including Area Code, of Agent For Service: (508) 898-5000
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
(212) 318-3000
fax: (212) 752-5958
<TABLE>
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------------------------------------------
<CAPTION>
Proposed maximum Proposed maximum
Title of Securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) share(2) price (2) registration fee
----------------------------- ---------------------- ----------------------- ---------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 2,500,000 $25 15/16 $64,843,750 $19,650
value(3)
----------------------------- ---------------------- ----------------------- ---------------------- ----------------
Common Stock, $.01 par 100,000 $25 15/16 $ 2,593,750 $ 786
value (4)
----------------------------- ---------------------- ----------------------- ---------------------- ----------------
TOTAL 2,600,000 $25 15/16 Total: $67,437,500 $20,436
============================= ====================== ======================= ====================== ================
<FN>
(1) Plus such additional indeterminable number of shares as may be required
pursuant to the Data General Corporation Employee Qualified Stock
Purchase Plan and the Data General Corporation Stock Compensation Plan
for Non-Employee Directors in the event of a stock dividend, stock
split, recapitalization or other similar change in the Common Stock.
(2) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee, based on the closing price of the
Common Stock as reported on the New York Stock Exchange on July 7,
1997.
(3) Represents the number of shares of Common Stock under this Registration
Statement that may be issued under the Data General Corporation
Employee Qualified Stock Purchase Plan.
(4) Represents the number of shares of Common Stock under this Registration
Statement that may be issued under the Data General Corporation Stock
Compensation Plan for Non-Employee Directors.
</FN>
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Registration Statement also constitutes (i) Post-Effective Amendment No. 1 to
the Registration Statement on Form S-8 (No. 33-53041); (ii) Post-Effective
Amendment No. 2 to the Registration Statement on Form S-8 (No. 33-57948); (iii)
Post-Effective Amendment No. 3 to the Registration Statement on Form S-8 (No.
33-38995); (iv) Post-Effective Amendment No. 4 to the Registration Statement on
Form S-8 (No. 33-33300); (v) Post-Effective Amendment No. 5 to the Registration
Statement on Form S-8 (No. 33-11529); (vi) Post-Effective Amendment No. 6 to the
Registration Statement on Form S-8 (No. 2-88973); (vii) Post-Effective Amendment
No. 7 to the Registration Statement on Form S-8 (No. 2-75554); (viii)
Post-Effective Amendment No. 8 to the Registration Statement on Form S-8 (No.
2-60520); and (ix) Post-Effective Amendment No. 9 to the Registration Statement
on Form S-8 (No. 2-39207), all of which relate to the Data General Corporation
Employee Qualified Stock Purchase Plan.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the rules and regulations of the Securities and
Exchange Commission, the documents containing the information called for in Part
I of Form S-8 will be sent or given to individuals who participate in the Data
General Corporation Employee Qualified Stock Purchase Plan or the Data General
Corporation Stock Compensation Plan for Non-Employee Directors adopted by Data
General Corporation and are not being filed with or included in this Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Data General Corporation (the
"Company") are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the
fiscal year ended September 28, 1996.
(ii) The Company's Quarterly Report on Form 10-Q for the
quarter ended December 28, 1996.
(iii) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 29, 1997.
(iv) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A
dated November 7, 1973, as amended on February 28,
1985 and April 12, 1985.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder have been sold or
deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document that is
also incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
II-1
<PAGE>
Item 5. Interests of Named Experts and Counsel
Carl E. Kaplan, Secretary of the Company, is a partner in
Fulbright & Jaworski L.L.P., and Frederick R. Adler, a Director and Chairman of
the Executive Committee of the Board of Directors of the Company, is of counsel
to Fulbright & Jaworski L.L.P. Messrs. Kaplan and Adler and certain other
partners of Fulbright & Jaworski L.L.P. beneficially owned an aggregate of
418,981 shares of Common Stock of the Company as of May 12, 1997.
Item 6. Indemnification of Directors and Officers
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 TENTH of the
Company's 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 the
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 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 -- Data General Corporation Employee Qualified Stock
Purchase Plan
4.2 -- Data General Corporation Stock Compensation Plan for
Non-Employee Directors
5 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5).
24 -- Power of Attorney (included in signature page).
II-2
<PAGE>
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 which,
individually or together, represent a fundamental change in
the information in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information 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 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 Section
15(d) of the Securities Exchange Act of 1934 (and,
II-3
<PAGE>
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 initial bona fide offering thereof.
(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 Securities Act of 1933 and
is, therefore, unenforceable. In the event a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer, or controlling person
of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling
person of the registrant in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Westboro, Massachusetts on the 11th day of July, 1997.
DATA GENERAL CORPORATION
By: /s/ Ronald L. Skates
--------------------
Ronald L. Skates
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
Employee Qualified Stock Purchase Plan Committee of the Board of Directors have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Westboro, Massachusetts on the 11th
day of July, 1997.
DATA GENERAL CORPORATION
EMPLOYEE QUALIFIED STOCK
PURCHASE PLAN
By: /s/ Frederick R. Adler
-----------------------
Frederick R. Adler
By: /s/ Donald H. Trautlein
-----------------------
Donald H. Trautlein
By: /s/ Richard L. Tucker
-----------------------
Richard L. Tucker
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Ronald L. Skates and Robert C.
McBride, or either of them, his true and lawful attorney-in-fact and agent with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and
<PAGE>
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or either of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Ronald L. Skates
- -------------------------------- President, Chief July 11, 1997
Ronald L. Skates Executive Officer, Director,
(Principle Executive Officer)
/s/ Frederick R. Adler
- -------------------------------- Chairman of Executive July 11, 1997
Frederick R. Adler Committee of Board of
Directors; Director
/s/ Arthur W. DeMelle
- -------------------------------- Senior Vice President; July 11, 1997
Arthur W. DeMelle Chief Financial Officer;
Chief Accounting Officer
/s/ Ferdinand Colloredo-Mansfeld
- -------------------------------- Director July 11, 1997
Ferdinand Colloredo-Mansfeld
/s/ Donald H. Trautlein
- -------------------------------- Director July 11, 1997
Donald H. Trautlein
/s/ Richard L. Tucker
- -------------------------------- Director July 11, 1997
Richard L. Tucker
/s/ W. Nicholas Thorndike
- -------------------------------- Director July 11, 1997
W. Nicholas Thorndike
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
4.1 -- Data General Corporation Employee
Qualified Stock Purchase Plan
4.2 -- Data General Corporation Stock
Compensation Plan for Non-Employee Directors
5 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5).
24 -- Power of Attorney (included in signature page).
Exhibit 4.1
DATA GENERAL CORPORATION
EMPLOYEE QUALIFIED STOCK PURCHASE PLAN
1. Purpose
This Employee Qualified Stock Purchase Plan (the "Plan") is intended as
an incentive and to encourage stock ownership by all eligible employees of Data
General Corporation (the "Company") and all participating subsidiaries so that
they may share in the fortunes of the Company by acquiring or increasing their
proprietary interest in the Company. The Plan is designed to encourage eligible
employees to remain in the employ of the Company. It is intended that options
issued pursuant to this Plan shall constitute options issued pursuant to an
"employee stock purchase plan" within the meaning of Section 423 of the Internal
Revenue Code of 1986 (the "Code").
2. Eligible Employees
All employees of the Company or any of its participating subsidiaries
who have completed ninety days' employment with the Company or any of its
subsidiaries shall be eligible to receive options under this Plan to purchase
the Company's Common Stock (except employees in countries whose laws make
participation impractical). Persons who have been so employed for ninety days or
more on the February 1 next following the date this Plan is approved by the
stockholders of the Company shall receive their options as of such February 1.
Persons who attain the status of employment for ninety days or more after the
date on which the initial options are granted under this Plan shall be granted
options on the next date on which options are granted to all participating
employees. In no event may an employee be granted an option if such employee,
immediately after the option is granted, owns stock possessing 5 percent or more
of the total combined voting power or value of all classes of stock of the
Company or of its parent corporation or subsidiary corporation, as the terms
"parent corporation" and "subsidiary corporation" are defined in Section 425(e)
and (f) of the Code. For purposes of determining stock ownership under this
paragraph, the rules of Section 425(d) of the Code shall apply and stock which
the employee may purchase under outstanding options shall be treated as stock
owned by the employee.
For purposes of this Article 2, the term employee shall not include an
employee whose customary employment is 20 hours or less per week or is for not
more than 5 months in any calendar year.
<PAGE>
3. Stock Subject to the Plan
The stock subject to the options shall be shares of the Company's
authorized but unissued shares of Common Stock of the Company or shares of
Common Stock reacquired by the Company, including shares purchased in the open
market. The aggregate number of shares which may be issued pursuant to this Plan
is 11,100,000, subject to increase or decrease by reason of stock split-ups,
reclassifications, stock dividends, changes in par value and the like.
4. Payment Periods and Stock Options
The six-month periods, August 1 to January 31 and February 1 to July
31, are Payment Periods during which payroll deductions will be accumulated
under the Plan. Each Payment Period includes only regular pay days falling
within it.
Twice each year, on the first business day of each Payment Period, the
Company will grant to each eligible employee who is then a participant in the
Plan an option to purchase on the last day of such Payment Period at the Option
Price hereinafter provided for such number of shares of the Common Stock of the
Company reserved for the purpose of the Plan as his or her accumulated payroll
deductions on the last day of such Payment Period will pay for at such Option
Price; provided and on condition that such employee remains eligible to
participate in the Plan throughout such Payment Period. The Option Price for
each Payment Period shall be the lesser of (i) 85% of the average market price
of the Company's Common Stock on the first business day of the Payment Period;
or (ii) 85% of the average market price of the Company's Common Stock on the
last business day of the Payment Period. In the event of an increase or decrease
in the number of outstanding shares of Common Stock of the Company through stock
split-ups, reclassifications, stock dividends, changes in par value and the
like, an appropriate adjustment shall be made in the number of shares and Option
Price per share provided for under the Plan, either by a proportionate increase
in the number of shares and a proportionate decrease in the Option Price per
share, or by a proportionate decrease in the number of shares and a
proportionate increase in the Option Price per share, as may be required to
enable an eligible employee who is then a participant in the plan as to whom an
option is exercised on the last day of any then current Payment Period to
acquire such number of full shares as his accumulated payroll deductions on such
date will pay for at the adjusted Option Price.
For purposes of this Plan the term "average market price" means, if the
Common Stock is listed on the New York Stock Exchange, the average of the high
and low prices of the Common Stock of the Company on such exchange or such other
national securities exchange as designated by the Board of Directors or, if the
Common Stock is traded over-the-counter securities market, the mean between the
bid and asked prices of the Common Stock.
For purposes of this Plan the term "business day" as used herein means
a day on which there is trading on the New York Stock Exchange or such other
national securities exchange as shall be designated by the Board of Directors
pursuant to the preceding paragraph.
-2-
<PAGE>
No employee shall be granted an option which permits his rights to
purchase Common Stock under the Plan and any similar plans of the Company or any
parent or subsidiary corporations to accrue at a rate which exceeds $25,000 of
the fair market value of such stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding at any time.
The purpose of the limitation in the preceding sentence is to comply with
Section 423(b)(8) of the Code.
5. Exercise of Option
Each eligible employee who continues to be a participant in the Plan on
the last business day of a Payment Period shall be deemed to have exercised his
option on such date and shall be deemed to have purchased from the Company such
number of full shares of Common Stock reserved for the purpose of the Plan as
his accumulated payroll deductions on such date will pay for at such Option
Price. If a participant is not an employee on the last business day of a Payment
Period, he shall not be entitled to exercise his option.
6. Unused Payroll Deductions
If the participant wishes to receive a certificate representing the
shares purchased pursuant to the option, only full shares of stock will be
represented by the stock certificate. Any balance remaining in an employee
account after a purchase will be reported to the employee and will be carried
forward to the next Payment Period.
7. Authorization for Entering Plan
An employee may enter the Plan by filling out, signing and delivering
the Corporate Benefits Department an Authorization:
a) stating the amount to be deducted regularly from his or her pay;
b) authorizing the purchase of stock for him in each Payment Period in
accordance with the terms of the Plan; and
c) specifying the exact name in which stock purchased for him or her is
to be issued as provided under Article 11 hereof.
Such Authorization must be received by the Corporate Benefits Department at
least 10 days before the beginning date of such next succeeding Payment Period.
Unless an employee files a new Authorization or withdraws from the
Plan, his or her deductions and purchases under the Authorization he or she has
on file under the Plan will continue as long as the Plan remains in effect.
-3-
<PAGE>
The Company will accumulate and hold for the employee's account the
amounts deducted from his pay. No interest will be paid on it.
8. Maximum Amount of Payroll Deductions
An employee may authorize payroll deductions in any even dollar amount
up to but not more than 10% of his regular base pay, provided, however, that the
minimum deduction in respect of any payroll period shall be $5.00 (or such
lesser amount as the Committee shall establish).
9. Change in Payroll Deductions
Deductions may be decreased only once in a Payment Period. Deductions
may be increased only prior to the first day of a Payment Period. New
Authorizations will be required and must be received by the Corporate Benefits
Department.
10. Withdrawal from the Plan
An employee may withdraw from the Plan, in whole but not in part, at
any time prior to the last business day of each Payment Period by delivering a
Withdrawal Notice to the Corporate Benefits Department, in which event the
Company will promptly refund the entire balance of his deductions not
theretofore used to purchase stock under the Plan.
An employee who withdraws from the Plan is like an employee who has
never entered the Plan. To re-enter, he or she must file a new Authorization at
least 10 days before the beginning date of the next Payment Period which cannot,
however, become effective before the beginning of the next Payment Period
following his or her withdrawal.
11. Issuance of Stock
Certificates for stock issued to participants will be delivered as soon
as practicable after each Payment Period.
Stock purchased under the Plan will be issued only in the name of the
employee, or if his or her Authorization so specifies, in the name of the
employee and another person of legal age as joint tenants with rights of
survivorship.
12. No Transfer or Assignment of Employee's Rights
An employee's rights under the Plan are his or hers alone and may not
be transferred or assigned to, or availed of by, any other person. Any option
granted to an employee may be exercised only by such employee.
-4-
<PAGE>
13. Termination of Employee's Rights
An employee's rights under the Plan will terminate when he ceases to be
an employee because of retirement, resignation, lay-offs, discharge, death,
change of status, or for any other reason. A Withdrawal Notice will be
considered as having been received from the employee on the day his or her
employment ceases, and all payroll deductions not used to purchase stock will be
refunded.
If an employee's payroll deductions are interrupted by any legal
process, a Withdrawal Notice will be considered as having been received from him
or her on the day the interruption occurs.
14. Termination and Amendments to Plan
The plan may be terminated at any time by the Company's Board of
Directors. It will terminate in any case when all or substantially all of the
unissued shares of stock reserved for the purposes of the Plan have been
purchased. If at any time shares of stock reserved for the purposes of the Plan
remain available for purchase but not in sufficient number to satisfy all then
unfilled purchase requirements, the available shares shall be apportioned among
participants in proportion to their options and the Plan shall terminate. Upon
such termination or any other termination of the Plan, all payroll deductions
not used to purchase stock will be refunded.
The Board of Directors also reserves the right to amend the Plan from
time to time, in any respect provided, however, that no amendment shall be
effective without prior approval of the stockholders, which would (a) except as
provided in Article 3 and 4, increase the number of shares of Common Stock to be
offered above or (b) change the class of employees eligible to receive options
under the Plan.
15. Limitations on Sale of Stock Purchased Under the Plan
The Plan is intended to provide Common Stock for investment and not for
resale. The Company does not, however, intend to restrict or influence any
employee in the conduct of his or her own affairs. An employee may, therefore,
sell stock purchased under the Plan at any time he or she chooses; provided,
however, that because of certain Federal tax requirements, each employee will
agree by entering the Plan, promptly to give the Company notice of any such
stock disposed of within two years after the date of the last day of the Payment
Period during which the stock was purchased showing the number of such shares
disposed of. The employee assumes the risk of any market fluctuations in the
price of such stock.
16. Company's Payment of Expenses Related to Plan
The Company will bear all costs of administering and carrying out the
Plan.
-5-
<PAGE>
17. Participating Subsidiaries
The term "participating subsidiaries" shall mean any subsidiary of the
Company which is designated by the Board of Directors to participate in the
Plan. The Board of Directors shall have the power to make such designations
before or after the Plan is approved by the stockholders.
18. Administration of the Plan
The Plan shall be administered by a committee appointed by the Board of
Directors of the Company (the "Committee"). The Committee shall consist of not
less than three members of the Company's Board of Directors. The Board of
Directors may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, howsoever caused, shall be filled by the
Board of Directors. The Committee shall elect one of its members as Chairman,
and shall hold meetings at such times and places as it may determine. Acts by a
majority of the Committee, or acts reduced to and approved in writing by a
majority of the members of the Committee, including written approvals by
electronic means, shall be valid acts of the Committee.
The interpretation and construction by the Committee of any provisions
of the Plan or of any options granted under it shall be final unless otherwise
determined by the Board of Directors. The Committee may from time to time adopt
such rules and regulations for carrying out the Plan as it may deem best. No
member of the Board of Directors or the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any option
granted under it. No member of the Committee shall be eligible to participate in
the Plan while serving as a member of the Committee.
19. Optionees Not Stockholders
Neither the granting of an option to an employee nor the deduction from
his or her pay shall constitute such employee a stockholder of the shares
covered by an option until such shares have been purchased by and issued to such
employee.
20. Application of Funds
The proceeds received by the Company from the sale of Common Stock
pursuant to options granted under the Plan will be used for general corporate
purposes.
21. Governmental Regulation
The Company's obligation to sell and deliver shares of the Company's
Common Stock under this Plan is subject to the approval of any governmental
authority required in connection with the authorization, issuance or sale of
such stock.
-6-
<PAGE>
22. Withholding of Additional Federal Income Tax
The Company, in accordance with Section 3402(a) of the Code and the
Regulations and Rulings promulgated thereunder, will withhold from the wages of
participating employees, in all payroll periods following and in the same
calendar year as the date on which compensation is deemed received by the
employee, additional income taxes in respect of the amount that is considered
compensation includible in the employee's gross income.
23. Approval of Stockholders
The Plan shall not take effect until approved by the holders of a majority of
the outstanding shares of Common Stock of the Company, which approval must occur
within the period beginning twelve months before and ending twelve months after
the date the Plan is adopted by the Board of Directors.
-7-
Exhibit 4.2
DATA GENERAL CORPORATION
STOCK COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(a) Purpose. The purpose of this Plan is to permit eligible members of
the Board to defer receipt of specified portions of their cash compensation and
to have such deferred compensation accumulate as if it were invested in Common
Stock of the Company.
(b) Definitions.
(1) "Account" means the bookkeeping account maintained by the
Company to reflect a Participant's interest in the Plan.
(2) "Beneficiary" means the person or persons designated in
accordance with the provisions of the Plan to receive the unpaid balance of a
Participant's Account upon the Participant's death.
(3) "Board" means the Board of Directors of the Company.
(4) "Common Stock" means the Common Stock of the Company, $.01 par
value. The Common Stock which may be issued under the Plan shall not exceed
100,000 shares.
(5) "Company" means Data General Corporation.
(6) "Compensation" means the cash compensation payable by the
Company to a Participant for services rendered as a director, including, without
limitation, retainer fees and fees for attendance at Board and Committee
meetings.
(7) "Participant" means an individual for whom an Account is
maintained under the Plan.
(8) "Plan" means the Data General Corporation Stock Compensation
Plan for Non-Employee Directors.
(9) "Unit" means the equivalent of one share of Common Stock.
(c) Administration. The Plan will be administered by the Board. Subject
to the provisions of the Plan, the Board, acting in its sole and absolute
discretion, will have full power and authority to interpret, construe and apply
the provisions of the Plan and to take such actions
<PAGE>
as may be necessary and desirable in order to carry out the provisions of the
Plan. A member of the Board who is also a Participant may not act or vote on any
matter before the Board which relates specifically to the payment of amounts
credited to the Participant's Account. The Board will keep a record of its
proceedings and acts and will keep or cause to be kept such books and records as
may be necessary in connection with the proper administration of the Plan. The
Company shall indemnify and hold harmless each member of the Board and any
employee of the Company and its affiliates to whom any duty or power relating to
administration or interpretation of the Plan is delegated from and against any
loss, cost, liability (including any sum paid in settlement of a claim with the
approval of the Board) damage and expense (including legal and other expenses
incident thereto) arising out of or incurred in connection with the Plan, unless
and except to the extent attributable to such person's fraud or willful
misconduct.
(d) Participation. Plan participation is voluntary and is limited to
members of the Board who are not employees of the Company.
(e) Deferral Elections. Each Participant may elect in writing to defer
either 100% or 50% of the Participant's Compensation. An individual's
Compensation deferral election must be received by the Company before the
beginning of the fiscal year in which Compensation is earned and, once made, the
election is irrevocable for that fiscal year. With respect to the 1997 fiscal
year, an individual's Compensation deferral election must be received by the
Company before December 1, 1996 and, once made, the election will be irrevocable
for the remainder of the 1997 fiscal year.
(f) Participant Accounts. The Company will establish a bookkeeping
account to reflect the interest of each Participant in the Plan. A Participant's
Account will be credited with Units as of the date that Compensation so deferred
under the Plan would otherwise be payable. The number of Units so credited will
be equal to x divided by y where x is the dollar amount of the Compensation
which is deferred, and y is the closing price of a share of Common Stock on the
New York Stock Exchange on the trading day that the deferred Compensation would
otherwise have been payable. The Company will provide each Participant with
periodic statements of the Participant's Account.
-2-
<PAGE>
(g) Payment of Account; Form of Payment. The amount of a Participant's
Account will be payable by the Company to the Participant (or as provided in
Section 8) on or as soon as practicable after the date of the termination of the
Participant's service as a member of the Board. Payment of a Participant's
Account will be made in the form of shares of Common Stock equal in number to
the number of Units credited to the Account. The Board may direct that
fractional Units be paid in cash rather than in fractional shares of Common
Stock. The right of any Participant or Beneficiary to receive payment of the
Participant's Accounts under the Plan is the same as the right of an unsecured
creditor of the Company.
(h) Death. In the event of the death of a Participant, the balance, if
any, of the Participant's Account shall be payable to the Participant's
Beneficiary. A Participant may designate a Beneficiary by written notice filed
with the Treasurer of the Company and may change the Beneficiary designation at
any time by designating a new Beneficiary in the same manner, and no notice need
be given to any prior Beneficiary. If no designated Beneficiary shall survive a
deceased Participant or if no Beneficiary has been designated, then payment of
the balance of the deceased Participant's Account will be made to the deceased
Participant's spouse or if none, to the deceased Participant's estate. Any
payments made on account of a Participant's death shall be paid in shares of
Common Stock.
(i) Adjustments Upon Changes in Capitalization. The number of Units
credited to a Participant's Account will be adjusted to reflect any increase or
decrease in the number of issued shares of Common Stock resulting from a
split-up or consolidation of shares or any like capital adjustment, or the
payment of any stock dividend. The amount of any cash dividends credited to a
Participant's Account will be converted to Units in a manner consistent with the
conversion of deferred Compensation to Units.
(j) Reorganization or Sale of the Company. In the event of an Exchange
Transaction (as defined below), any outstanding deferral period shall end and
each Participant will be entitled to receive payment of his or her Account
balance in shares of Common Stock immediately prior to the consummation of the
Exchange Transaction. Each Participant will be given the opportunity to
participate in the Exchange Transaction with respect to the Common Stock
distributable to the
-3-
<PAGE>
Participant pursuant to the preceding sentence. For purposes hereof, the term
"Exchange Transaction" means a merger (other than a merger of the Company in
which the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation,
reorganization (other than a mere reincorporation or the creation of a holding
company) or liquidation of the Company, as a result of which the shareholders of
the Company receive cash, stock or other property in exchange for or in
connection with their shares of Common Stock.
(k) Legal Requirements. The Company's obligation to issue and deliver
stock under the Plan is at all times subject to all approvals of, or filings
with, any governmental authorities required in connection with the
authorization, issuance or delivery of such stock.
(l) No Assignment. A Participant or Beneficiary may not transfer or
assign the right to receive payment under the Plan, and any attempted transfer
or assignment will be void.
(m) No Additional Rights. Nothing in the Plan will be deemed to confer
upon any person the right to receive compensation or the right to continued
service with the Company and its affiliates as a member of the Board or
otherwise.
(n) Amendment and Termination. The Board may amend or terminate the
Plan at any time; provided, however, that no such action may adversely affect
the amounts theretofore credited to a Participant's Account. If the Plan is
terminated, no further deferral elections will be permitted.
(o) Governing Law. The Plan and any deferral election made under the
Plan shall be governed by the laws of the State of Delaware.
(p) Finality of Decisions. Any decisions or determinations made by the
Board pursuant to the provisions of the Plan shall be final and binding on all
persons.
-4-
FULBRIGHT & JAWORSKI L.L.P.
A Registered Limited Liability Partnership
666 Fifth Avenue
New York, New York 10103-3198
telephone: 212/318-3000 Houston
facsimile: 212/752-5958 Washington, D.C.
Austin
San Antonio
Dallas
New York
Los Angeles
London
Hong Kong
Exhibit 5
July 11, 1997
DATA GENERAL CORPORATION
4400 Computer Drive
Westboro, Massachusetts 01580
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), on behalf
of Data General Corporation, a Delaware corporation (the "Company"), relating to
2,500,000 shares of the Company's Common Stock, $0.01 par value (the "Common
Stock") to be issued under the Data General Corporation Employee Qualified Stock
Purchase Plan and 100,000 shares of Common Stock to be issued under the Data
General Corporation Stock Compensation Plan for Non-Employee Directors (the
"Plans").
As counsel to the Company, we have examined such corporate
records, other documents and such questions of law as we have deemed necessary
or appropriate for the purposes of this opinion and, upon the basis of such
examinations, advise you that in our opinion all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Common
Stock pursuant to the Plans and the shares of Common Stock being registered
pursuant to the Registration Statement, when issued and paid for in accordance
with the terms of the Plans, will be duly authorized, validly issued, fully paid
and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. This consent is not to be construed as an admission that
we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
Exhibit 23.1
CONSENT OF PRICE WATERHOUSE LLP, INDEPENDENT ACCOUNTANTS
To the Board of Directors
Data General Corporation
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 30, 1996, which appears in the
1996 Annual Report to Stockholders of Data General Corporation, which is
incorporated by reference in the Annual Report on Form 10-K for the year ended
September 28, 1996. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears on page 21 of such
Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Boston, Massachusetts
July 11, 1997
