As filed with the Securities and Exchange
Commission on December 23, 1998
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
1998 EMPLOYEE STOCK OPTION PLAN
DATA GENERAL CORPORATION
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(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>
Title of Securities to be Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
registered registered (1) price per share(2) offering price (2) registration fee
--------------------------------- ---------------- --------------------------- --------------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value (3) 2,500,000 $17.4375 $43,593,750 $12,119.06
--------------------------------- ---------------- --------------------------- --------------------------- ------------------
Common Stock, $.01 par value (4) 150,000 $17.4375 $2,615,625 $727.14
--------------------------------- ---------------- --------------------------- --------------------------- ------------------
<FN>
(1) Plus such additional indeterminable number of shares as may be required pursuant to the Data General Corporation 1998
Employee Stock Option Plan and the Data General Corporation 1998 Non-Employee Director Stock Option Plan 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 average of the high and low prices of the Common Stock as
reported on the New York Stock Exchange on December 17, 1998
(3) Represents the number of shares of Common Stock under this Registration Statement that may be issued under the Data
General Corporation 1998 Employee Stock Option Plan.
(4) Represents the number of shares of Common Stock under this Registration Statement that may be issued under the Data
General Corporation 1998 Non-Employee Director Stock Option Plan.
</FN>
</TABLE>
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 1998 Employee Stock Option Plan or the Data General
Corporation 1998 Non-Employee Director Stock Option Plan 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 26, 1998.
(ii) 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 which
indicates that all of the securities offered hereunder have been sold or which
deregisters 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.
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 296,057 shares
of Common Stock of the Company as of December 17, 1998.
<PAGE>
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 1998 Employee Stock Option Plan
4.2 -- Data General Corporation 1998 Non-Employee Director Stock
Option Plan
5 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5).
24 -- Power of Attorney (included in signature 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:
<PAGE>
(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 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, 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.
<PAGE>
(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 that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer, or controlling person 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.
<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 21st day of
December, 1998.
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 Board
of Directors of Data General Corporation has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Westboro, Massachusetts on the 21st day of December, 1998.
Signature Title Date
- ------------------------------- ---------------------------- -----------------
/s/ Ronald L. Skates President, Chief December 21, 1998
- -------------------- Executive Officer, Director,
Ronald L. Skates (Principle Executive Officer)
/s/ John J. Gavin Jr. Vice President, Controller December 21, 1998
- -------------------- and Acting Chief Financial
John J. Gavin Jr. Officer
/s/ Robert C. McBride Vice President, Treasurer December 21, 1998
- --------------------- and Acting Chief Accounting
Robert C. McBride Officer
<PAGE>
/s/ Ferdinand Colloredo-Mansfeld Director December 21, 1998
- -------------------------------
Ferdinand Colloredo-Mansfeld
/s/ Jeffrey M. Cunningham Director December 21, 1998
- -------------------------
Jeffrey M. Cunningham
/s/ W. Nicholas Thorndike Director December 21, 1998
- -------------------------
W. Nicholas Thorndike
/s/ Donald H. Trautlein Director December 21, 1998
- -----------------------
Donald H. Trautlein
/s/ Richard L. Tucker Director December 21, 1998
- ---------------------
Richard L. Tucker
Pursuant to the requirements of the Securities Act of 1933, the 1998
Employee Stock Option Plan Committee of the Board of Directors of Data
General Corporation has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Westboro, Massachusetts on the 21st day of December, 1998.
DATA GENERAL CORPORATION
1998 EMPLOYEE STOCK
OPTION PLAN
By: /s/ Jeffrey M. Cunningham
-------------------------
Jeffrey M. Cunningham
By: /s/ W. Nicholas Thorndike
-------------------------
W. Nicholas Thorndike
By: /s/ Donald H. Trautlein
-------------------------
Donald H. Trautlein
By: /s/ Richard L. Tucker
-------------------------
Richard L. Tucker
<PAGE>
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
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 December 21, 1998
- -------------------- Executive Officer, Director,
Ronald L. Skates (Principle Executive Officer)
/s/ John J. Gavin Jr. Vice President, Controller December 21, 1998
- --------------------- and Acting Chief Financial
John J. Gavin Jr. Officer
/s/ Robert C. McBride Vice President, Treasurer December 21, 1998
- --------------------- and Acting Chief Accounting
Robert C. McBride Officer
/s/ Ferdinand Colloredo-Mansfeld Director December 21, 1998
- --------------------------------
Ferdinand Colloredo-Mansfeld
<PAGE>
/s/ Jeffrey M. Cunningham Director December 21, 1998
- ------------------------
Jeffrey M. Cunningham
/s/ W. Nicholas Thorndike Director December 21, 1998
- -------------------------
W. Nicholas Thorndike
/s/ Donald H. Trautlein Director December 21, 1998
- -----------------------
Donald H. Trautlein
/s/ Richard L. Tucker Director December 21, 1998
- ---------------------
Richard L. Tucker
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 -- Data General Corporation 1998 Employee Stock Option Plan
4.2 -- Data General Corporation 1998 Non-Employee Director Stock Option
Plan
5 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5).
24 -- Power of Attorney (included in signature page).
<PAGE>
Exhibit 4.1
DATA GENERAL CORPORATION
1998 EMPLOYEE STOCK OPTION PLAN
1. Purpose
The Data General Corporation 1998 Employee Stock Option Plan (the
"Plan") is intended to be a broadly-based stock option plan pursuant to
which employees of Data General Corporation (the "Company") and its
subsidiaries who are making and are expected to continue making substantial
contributions to the successful management and growth of the Company and
its subsidiaries, may be offered an opportunity to acquire Common Stock,
$.01 par value per share (the "Common Stock"), of the Company in order to
increase their proprietary interests in the Company and their incentive to
remain and advance in the employ of the Company and its subsidiaries. It is
also the purpose of the Plan to strengthen the ability of the Company and
its subsidiaries to attract and retain personnel of experience and ability
by granting such persons an opportunity to acquire a proprietary interest
in the Company.
2. Administration of the Plan
The Plan shall be administered by a 1998 Employee Stock Option Plan
Committee (the "Committee") appointed by the Board of Directors of the
Company. The Committee shall consist of two or more "non-employee
directors", as that term is defined in Rule 16b-3, as in effect from time
to time, under the Securities Exchange Act of 1934, as amended. Subject to
the terms and conditions of the Plan, the Committee shall have exclusive
authority to select the times when and employees to whom Stock Options may
be granted, and to determine the terms and conditions of the option
agreements (as hereinafter defined), the number of shares of Common Stock
to be acquired by the exercise of Stock Options, the option price (as
hereinafter defined) and the term during which the Stock Options may be
exercised.
The Board of Directors may at any time appoint or remove members of
the Committee and may fill vacancies however caused in the Committee. The
Committee shall select one of its members as Chairman and shall hold
meetings at such times and places as it shall deem advisable. All acts by a
majority of the Committee or acts approved in writing by a majority of the
Committee shall be valid acts of the Committee. The Committee shall keep
records of its meetings and shall make such rules and regulations for the
conduct of its business as it shall deem advisable.
3. Interpretation and Amendment
The interpretation and construction of any terms or conditions of the
Plan or of any option agreement or other matters related to the Plan by the
Committee shall be final and conclusive. 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.
<PAGE>
The Board of Directors may at any time terminate or from time to time
modify or suspend the Plan; provided, however, that no such action shall
impair any Stock Option theretofore granted.
4. Participants
Stock Options may be granted to employees of the Company or its
subsidiaries. No Stock Options shall be granted to an employee who, at the
time the Stock Option is granted, owns capital stock having more than ten
percent (10%) of the total combined voting power of all classes of capital
stock of the Company. The term "employees" shall include consultants to the
Company and its subsidiaries. The term "subsidiary" shall mean "subsidiary
corporation" as defined in Section 424 of the Code.
Subject to the preceding paragraph, receipt of stock options under any
other stock option plan maintained by the Company or any subsidiary shall
not, for that reason, preclude an employee from receiving Stock Options
under the Plan
5. Common Stock
Subject to Paragraph 11, no more than an aggregate of 2,500,000 shares
of Common Stock may be issued and sold pursuant to the Plan. The shares of
Common Stock issued and sold under the Plan may be authorized but unissued
shares of Common Stock, or shares of Common Stock acquired by the Company,
including shares of Common Stock purchased in the open market.
6. Terms and Conditions of Options
Stock Options shall be in such form and on such terms and conditions
as the Committee shall from time to time approve, subject to the following
terms and conditions:
(a) A Stock Option shall state the number of shares of Common Stock to
which it relates and no fractional shares of Common Stock shall be issued.
(b) The option price per share of Common Stock issuable upon the
exercise of a Stock Option shall be determined by the Committee; provided,
however, that in no event shall such price be less than the lower of (i)
fifty percent (50%) of the book value per share of the Common Stock as of
the end of the fiscal year immediately preceding the date of grant or (ii)
twenty-five percent (25%) of the fair market value per share of Common
Stock on the date of such grant.
(c) Notwithstanding any other provisions of the Plan, the term of a
Stock Option shall not be more than ten (10) years from the date such
option is granted
<PAGE>
7. Restrictions on Disposition and Obligation of Resale
Shares of Common Stock acquired by an employee pursuant to the
exercise of a Stock 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 termination of
employment for any reason except death or retirement 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 the obligation of resale to the Company have not
lapsed as provided below shall be referred to as "restricted shares."
(a) The restrictions against disposition and the obligation of resale
to the Company of shares acquired pursuant to the Plan shall lapse as Board
of Directors or the Committee shall determine, and such terms shall be
incorporated into and be made a part of the option agreement between the
Company and the employee. 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.
(b) Upon the occurrence of the earlier of the death of the employee,
the retirement of the employee with the consent of the Company or the
attainment by the employee of the age of 65 whether or not the employee
retires, 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.
(c) In the event of the termination of employment for any reason
except death or retirement with the consent of the Company, shares issued
to the employee 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 employee (at the original acquisition price)
for such number of shares as the Company elects to purchase and will return
to the employee any shares not so purchased. Restricted shares which are
not delivered to the Company within 30 days following the termination of
employment shall remain subject to the restrictions against disposition and
such restrictions shall not lapse as otherwise provided in this Section 7
and in the employee's option agreement. Nothing in this Section 7 shall
require the Company to repurchase shares issued to employees under the
Plan.
(d) 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 employee to obtain the acquisition
price to be paid by the employee for such shares; provided, however, that
the amount of such borrowing may not exceed the acquisition price of such
shares.
<PAGE>
(e) The provisions of this Section 7 and the provisions of any option
agreement between the Company and an employee relating to the restrictions
against disposition and the obligation of resale to the Company shall be
applied according to their terms or according to such other terms and
conditions, or at such times and dates, as the Board of Directors or the
Committee may from time to time establish.
Any questions as to whether and when there has been a termination of
employment, and (subject to Sections 6(b) and 6(c) of the Plan) any
questions as to the acquisition price of shares, shall be determined by the
Committee and its determination of such questions shall be final.
8. Notice of Election under Section 83(b)
Each employee exercising a non-qualified option and making an election
under Section 83(b) of the Code 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.
9. Termination of Employment
If an employee shall cease to be employed by the Company or any
subsidiary for any reason other than disability, retirement with the
consent of the Company or death, then any Stock Option granted pursuant to
the Plan shall terminate immediately
If an employee shall cease to be employed by the Company or any
subsidiary as the result of his disability, or retirement with the consent
of the Company, then any Stock Option that is exercisable by him at the
time he ceases to be employed by the Company or its subsidiaries, and only
to the extent that such Stock Options are exercisable as of such time, may
be exercised by him within twelve (12) months or three (3) months,
respectively, after such time.
Solely for the purposes of the Stock Option Plan, the transfer of an
employee from the employ of the Company to a subsidiary, or vice-versa, or
from one subsidiary to another, shall not be deemed a termination of
employment.
10. Death
If an employee shall die while employed by the Company or any
subsidiary, the employee's executor, personal representative or
administrator shall have the right to exercise those Stock Options granted
to the employee that were exercisable by him at the time of his death at
any time within twelve (12) months from the date of his death (or within
such shorter period as may be specified by the Company in the option
agreement).
<PAGE>
11. Changes in Capital Stock
Upon any readjustment or recapitalization of the Company's capital
stock whereby the character of the Common Stock shall be changed,
appropriate adjustments shall be made so that the capital stock to be
purchased under the Stock Option Plan after such readjustment or
recapitalization shall be the substantial equivalent of the Common Stock.
In the event of a subdivision or combination of the shares of Common Stock,
the number of shares of Common Stock as to which Stock Options may be
granted under the Plan shall be proportionately increased or decreased,
respectively, and the Option Price shall be proportionately adjusted by the
Board of Directors, and in the case of a reclassification or other change
in the shares of the Common Stock such action shall be taken as in the
opinion of the Board of Directors shall be appropriate under the
circumstances.
12. Transferability
Stock Options shall not be assignable or transferable and during an
employee's lifetime may be exercised only by him, except by will or the
laws of descent and distribution or as the Committee shall determine.
13. Exercise of Options
An employee electing to exercise a Stock Option shall give written
notice to the Company of such election and of the number of shares of
Common Stock that he has elected to acquire. An employee shall have no
rights of a stockholder with respect to shares of Common Stock to be
acquired by the exercise of a Stock Option until the issuance to him of a
certificate representing said shares.
14. Option Agreements
Agreements granting Stock Options under the Plan ("Option Agreements")
shall be in writing, duly executed and delivered by or on behalf of the
Company to the employee and shall contain such terms and conditions as the
Committee deems advisable. If there is any conflict between the terms and
conditions of any Option Agreement and of the Plan, the terms and
conditions of the Plan shall control.
15. Payment
The option price shall be payable upon the exercise of the Stock
Option and shall be paid 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 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 require an
additional amount which will result in the issuance of another whole share.
<PAGE>
16. Term of Plan
The Plan shall terminate on November 4, 2008.
17. Continuance of Employment
Neither the Plan nor any Option Agreement shall impose any obligation
on the Company or any subsidiary to continue to employ any employee.
18. Effectiveness of Plan
The Plan shall become effective on the date of its adoption by the
Board of Directors.
<PAGE>
Exhibit 4.2
DATA GENERAL CORPORATION
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose
The Data General Corporation 1998 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 from
shares of Common Stock issued but not outstanding.
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 termination of the Plan, 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.
<PAGE>
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
Subject to the next sentence, an Option to purchase 7,500 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. (Notwithstanding the foregoing sentence, during
the term of the Company's 1994 Non-Employee Director Stock Option Plan, the
number of shares which may be purchased under the aforesaid Option granted
under this Plan shall be reduced each year by the number of shares which
may be purchased under the option(s) granted each year to such Optionee
under the said Company's 1994 Non-Employee Director Stock Option Plan on
account of such Optionee's election 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 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.
<PAGE>
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
<PAGE>
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 cessation of service,
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 cessation of service. 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 cessation of
service, 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
<PAGE>
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.
<PAGE>
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 November 4, 2008; 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.
<PAGE>
Exhibit 5
Fulbright & Jaworski L.L.P.
A Registered Limited Liability Partnership
666 Fifth Avenue
New York, New York 10103-3198
HOUSTON
telephone: 212/318-3000 WASHINGTON, D.C.
facsimile: 212/752-5958 AUSTIN
SAN ANTONIO
DALLAS
NEW YORK
LOS ANGELES
LONDON
HONG KONG
December 21, 1998
DATA GENERAL CORPORATION
4400 Computer Drive
Westboro, Massachusetts 01580
Dear 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 (i) 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 1998 Employee Stock Option Plan and
(ii) 150,000 shares of Common Stock to be issued under the Data General
Corporation 1998 Non-Employee Director Stock Option Plan (collectively, 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.
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 28, 1998, which appears in the
1998 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 26, 1998. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears in such Annual Report
on Form 10-K.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
December 21, 1998
