As filed with the Securities and Exchange Commission on January 29, 1998
Registration No. 333-__________
- -------------------------------------------------------------------------------
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
DEFERRED COMPENSATION PLAN
GRANT OF COMMON STOCK TO NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
-----------------
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 Amount To Be Offering Price Per Aggregate Offering Amount Of Registration
Be Registered Registered Share Price Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation $12,000,000 (2) 100% $12,000,000 $3,540
Obligations (1)
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value 12,000 $13.9375 (3) $167,250 (3) $50
$0.01 per share
========================================================================================================================
<FN>
(1) The Deferred Compensation Obligations are unsecured obligations of Data
General Corporation to pay deferred compensation to eligible employees in the
future in accordance with the terms of the Data General Corporation Deferred
Compensation Plan.
(2) Estimated solely for the purpose of determining the registration fee.
(3) 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 price of the Common Stock as reported on the New
York Stock Exchange on January 23, 1998.
</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 plans 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 Deferred Compensation Plan and adopted by Data General
Corporation and the grant of Data General Corporation Common Stock to
Non-Employee Directors 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 27, 1997.
(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
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.
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
295,981 shares of Common Stock of the Company as of January 19, 1998.
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.
II-1
<PAGE>
Item 8. Exhibits
4.1 -- Data General Corporation Deferred Compensation Plan
4.2 -- Grant of Common Stock to 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).
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, 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.
II-2
<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 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-3
<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 the city of Westboro, Commonwealth of Massachusetts, on this
28th day of January, 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
Deferred Compensation 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 28th day of
January, 1998.
DATA GENERAL CORPORATION
DEFERRED COMPENSATION 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
<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 Execu- January 28, 1998
- -------------------- tive Officer, Director,
Ronald L. Skates (Principal Executive
Officer)
/s/ Frederick R. Adler Chairman of Executive January 28, 1998
- ---------------------- Committee of Board of
Frederick R. Adler Directors; Director
/s/ Arthur W. DeMelle Senior Vice President; January 28, 1998
- --------------------- Chief Financial Officer;
Arthur W. DeMelle Chief Accounting Officer
/s/ Ferdinand Colloredo-Mansfeld Director January 28, 1998
- --------------------------------
Ferdinand Colloredo-Mansfeld
/s/ Jeffrey M. Cunningham Director January 28, 1998
- --------------------------
Jeffrey M. Cunningham
/s/ W. Nicholas Thorndike Director January 28, 1998
- -------------------------
W. Nicholas Thorndike
/s/ Donald H. Trautlein Director January 28, 1998
- -----------------------
Donald H. Trautlein
/s/ Richard L. Tucker Director January 28, 1998
- ---------------------
Richard L. Tucker
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
4.1 -- Data General Corporation
Deferred Compensation Plan
4.2 -- Grant of Common Stock to 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
DEFERRED COMPENSATION PLAN
1. Purpose.
The purpose of the Plan is to permit certain employees of Data
General Corporation and its subsidiaries to defer a portion of their cash
compensation. The Plan is intended to be an unfunded plan maintained "primarily
for the purpose of providing deferred compensation for a select group of
management or highly compensated employees" within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act
of 1974 ("ERISA"). The Plan will be construed and administered accordingly.
2. Definitions.
(a) "Account" means the bookkeeping account maintained by the
Committee to reflect a participant's interest in the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Change in Control" means:
(1) 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 Securities Exchange Act of 1934, as amended (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 all or substantially all
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and 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
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<PAGE>
(2) Individuals who, as of January 1, 1991, 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, 1991 whose election, or nomination
for election, by the Company's shareholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of
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
(3) Approval by the stockholders of the Company 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,
or 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 do
not, following 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.
(d) "Committee" means the committee appointed by the Board to
administer the Plan.
(e) "Company" means Data General Corporation and any successor to all
or substantially all of its business or assets.
(f) "Employer" means the Company and any subsidiary of the Company
which adopts the Plan with the consent of the Board, and any successor to all or
substantially all of its business or assets.
(g) "Plan" means the deferred compensation plan set forth herein and
any amendments thereto.
(h) "Plan Year" means the twelve-month period beginning January 1, 1998
and ending December 31, 1998, and each calendar year thereafter.
(i) "Trust" means the trust established and maintained as part of the
Plan.
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<PAGE>
3. Participation
(a) General. An individual may elect to defer compensation under the
Plan for a Plan Year if (1) such individual is part of a select group of
management or highly compensated employees of an Employer within the meaning of
ERISA, and (2) the Committee, acting in its sole discretion, designates that
such individual may elect to defer compensation under the Plan for the Plan
Year.
(b) Termination of Eligible Status. If, while still employed, a
participant ceases to be part of a select group of management or highly
compensated employees within the meaning of ERISA, then the participant's
outstanding deferral election, if any, will be disregarded for the balance of
the Plan Year and the Committee, acting in its discretion, may direct the
immediate single sum payment of the balance credited to the participant's
Account regardless of when the Account would otherwise become payable pursuant
to the participant's prior deferral election(s).
4. Deferral Elections.
(a) Election of Deferral Amount. For each Plan Year, a participant may
elect to defer under the Plan as much as 15% (or such other percentage or amount
as the Committee may determine) of such employee's base salary, commissions
and/or bonus that would otherwise be payable in such Plan Year.
(b) Manner and Timing of Election. A participant's deferral election
for a Plan Year must be made in writing on such form (or forms), in such manner
and in accordance with such terms and conditions as the Committee may prescribe.
Unless the Committee specifies a different date, the election must be made
before the beginning of the Plan Year or, if later, within 30 days after the
employee is first permitted to make a deferral election under the Plan. Except
as otherwise provided herein, an employee's deferral election may not be
modified or revoked after the date by which it may be made.
(c) Election of Deferral Period. Unless the Committee determines
otherwise, a participant may elect to receive payment of compensation deferred
under the Plan for a Plan Year (together with earnings credited thereon) either
(1) upon termination of his or her employment with the Company and its
affiliates, or (2) in a specified future year that begins at least five years
after the end of the deferral year. The Committee may permit a participant to
change a previously-elected deferral period under such circumstances and upon
such terms and conditions as the Committee deems appropriate. Notwithstanding a
participant's election to receive payment in a specified future year, the
participant's entire unpaid Account balance will become payable upon the earlier
termination of the participant's employment with the Company and its affiliates.
(d) Election of Payment Method. If a participant is entitled to receive
payment of a Plan Year's deferral (together with earnings thereon) prior to the
termination of the participant's employment with the Company and its affiliates,
then the amount payable to
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<PAGE>
the participant will be made in the form of a single sum cash payment. If a
participant's Account balance becomes payable by reason of (or for any reason
following) the termination of the participant's employment with the Company and
its affiliates, then the participant may elect to have the payment made in the
form of either (1) a single sum cash payment, or (2) an installment payout over
a period of five years (or such other period of years as the Committee may
determine). The Committee may permit a participant to change a
previously-elected method of payment under such circumstances and upon such
terms and conditions as it deems appropriate, provided, however, that only one
such change may be elected and that the change election must be made at least
one year before the date payment would otherwise begin or be made. If an
installment payout is in effect, the amount of each installment will be
determined by dividing the unpaid balance by the number of the installments
remaining in the payout period.
(e) Effect of Leaves of Absence. Unless the Committee determines
otherwise, if a participant is absent from work by reason of an approved leave
of absence (other than long term disability), then, for the purposes hereof, the
employee's deferral election will continue in effect. Deferrals will be
discontinued for a participant who is on long term disability or on an
unapproved leave of absence, unless the Committee determines otherwise.
5. Participants' Accounts.
(a) General. The Committee will establish a bookkeeping Account in the
name of each participant to reflect his or her interest in the Plan. A
participant's Account will be credited with the amount(s) of his or her elective
deferrals and will be adjusted to reflect earnings and losses, distributions and
penalties, determined under the provisions hereof. The Committee may establish
subaccounts in order to separately track the deferrals for one or more years and
adjustments thereto.
(b) Earnings Credits. A participant's Account will be deemed to be
invested in a portfolio of securities as may be selected by the participant from
time to time. The Committee will determine the securities that may be selected
by participants under the Plan at any time and from time to time. Participants
may change their hypothetical investment elections not less frequently than
quarterly at such time, in such manner and subject to such terms and conditions
as may be prescribed by the Committee. Any such change will apply to the total
amount of a participant's Account, including the amounts, if any, credited to
one or more subaccounts. A participant's Account will be adjusted (up or down)
to reflect changes in the net value of the securities in which the Account is
deemed to be invested. The Committee may establish such other procedures and
conventions as it deems necessary or appropriate in connection with the
valuation of a participant's Account. Participants will be entitled to receive
quarterly or more frequent statements of their Plan Accounts.
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<PAGE>
6. Payment of Accounts.
(a) General. Payment of a participant's Account (or subaccount) will be
made or begin within 60 days after the termination of the participant's
employment with the Company and its affiliates or, if applicable, after the
beginning of the year certain specified in the participant's deferral election.
The amount of a participant's Account (or subaccount) will be paid in accordance
with the method of payment elected by the participant, provided, however, that,
unless the Committee determines otherwise, a single sum payment will
automatically be made to a participant who had elected to receive an installment
payout if the participant is still employed by the Company or an affiliate when
the first installment payment would otherwise be due.
(b) Early Payment for Hardship. The Committee, acting upon the request
of a participant who experiences a severe financial hardship, may direct the
accelerated payment to or for the benefit of the participant of all or part of
the amount credited to the participant's account, but only to the extent such
amount is necessary to ameliorate the participant's hardship. The Committee may
require such supporting information and documentation as it deems reasonable in
order to verify the existence of the participant's hardship and to determine the
amount of the payment that is required. The Committee may impose such additional
conditions upon the granting of a hardship payment as it deems appropriate,
including, without limitation, a suspension of further deferrals of compensation
by the participant under the Plan. For the purposes hereof, a "severe financial
hardship" means a sudden and unexpected illness or accident sustained by a
participant or a dependent of a participant, a loss of property due to an
unexpected casualty, or another extraordinary and unexpected loss or condition
sustained by the participant, in each case arising as a result of unexpected and
unforeseeable events or circumstances beyond the participant's control and in
all cases as determined by the Committee acting in its sole discretion.
(c) Early Payment Election. The Committee, acting upon the request of a
participant, may permit the participant to receive an accelerated payment of all
(and not less than all) of the amount credited to the participant's account for
reasons other than severe financial hardship. As a condition of the granting of
the participant's request for payment, the participant's account will be charged
a penalty in an amount equal to 10% (or such greater percentage as the Committee
may impose) of the participant's pre-penalty Account balance. A participant who
receives an early payout of his or her Account under this section will not be
permitted to again defer compensation under the Plan, if at all, until before
the second Plan Year beginning after the year in which the early payment is
made. The Committee may impose such additional conditions upon the early payout
of a participant's Account as it deems appropriate.
(d) Death. If a participant dies before the payment in full of his or
her Account, then the unpaid balance will be payable to the deceased
participant's beneficiary in the form of a single sum payment as soon as
practicable after the Committee is notified of the participant's death.
Notwithstanding the preceding sentence, if the deceased participant had begun
receiving an installment payout of his or her Account at the time of his or her
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<PAGE>
death or if the deceased Participant had elected to receive an installment
payout of the amounts payable under the Plan upon termination of employment,
then, unless the Committee determines otherwise, the installment payments will
be made or continue to be made, as the case may be, to the deceased
participant's beneficiary as if the participant had lived to receive the payment
of his or her Account in accordance with the terms of the payout election that
was in effect on the date of his or her death.
(e) Beneficiary Designation. A participant may designate one or more
beneficiaries under the Plan by written notice filed with the Committee or its
designee. A participant may change his or her Plan beneficiary designation at
any time by designating one or more new beneficiaries in the same manner, and no
notice need be given to any prior beneficiary. A participant's beneficiary
designation will be effective upon receipt and acceptance by the Committee (or
its designee). If no designated Plan beneficiary shall survive a deceased
participant, then payment of the balance of the deceased participant's Account
will be made to the deceased participant's surviving spouse or, if none, to the
deceased participant's estate.
7. Administration and Claim Procedures.
(a) The Committee. The Plan will be administered by the Committee,
which will consist of at least three individuals appointed by and serving at the
pleasure of the Board. Subject to the provisions of the Plan, the Committee,
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 as it deems necessary or appropriate in order to carry out the
provisions of the Plan. A majority of the members of the Committee will
constitute a quorum. The Committee may act by the vote of a majority of its
members present at a meeting at which there is a quorum or by unanimous written
consent. A member of the Committee who is also a participant may not act or vote
on any matter before the Committee which relates to the payment of his or her
Account. The decision of the Committee as to any disputed question, including
questions of construction, interpretation and administration, will be final and
conclusive on all persons. The Committee 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
Committee may from time to time employ agents and delegate to them such
administrative duties as it deems appropriate.
(b) Indemnification. The Company shall indemnify and hold harmless each
member of the Committee and any employee or director of the Company or an
affiliate to whom any duty or power relating to the 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 wilful misconduct.
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<PAGE>
(c) Claim for Payment. A participant or beneficiary may submit to the
Committee or its designee a written claim for payment of amounts due under the
Plan. A decision will be made and communicated to the claimant within 90 days
after the claim is filed. Upon advance notice to the claimant, the Committee may
extend the 90-day period by up to 90 additional days. If a claim is denied, the
Committee will furnish written notice of the denial to the claimant, setting
forth a description of the specific reasons for the denial, the Plan provisions
upon which the denial is based, and a description of the Plan's claim review
procedure. If no action is taken during the 90- or 180-day response period, as
the case may be, then the claim will be deemed to be denied on the last day of
the period for the purpose of proceeding to the claim review stage.
(d) Review of Denied Claims. If a claim for payment is denied or deemed
denied and if the claimant wants a review of the denied claim, then he or she
must file a written request for review with the Committee or its designee within
60 days after receiving notice of the denial of the claim or, if the claim is
deemed denied, after the end of the 90- or 180-day response period, as the case
may be. If the request for review of a denied claim is not timely filed, then
the denial of the claim becomes final and binding. If a request for review is
timely filed, then the claimant and, if applicable, his or her representative
may inspect all documents pertaining to the claim and its denial. The Committee
may schedule a meeting with the claimant and/or claimant's representative if it
deems such a meeting is necessary or appropriate to complete its review. The
Committee will make its decision within 60 days after receiving timely notice of
the request for review. Upon advance notice to the claimant, the Committee may
extend the initial 60-day review period by up to 60 additional days. If the
Committee affirms the original denial of the claim, then it will furnish written
notice of its decision to the claimant, setting forth the specific reasons for
its decision and describing the Plan provisions on which its decision is based.
If a decision is not communicated to the claimant within the applicable review
period, then the Committee will be deemed to have affirmed the original denial
of the claim and the claimant will be deemed to have exhausted his or her
administrative remedies with respect to the claim.
8. Amendment and Termination.
(a) Amendment. The Board, acting in its discretion, may amend the Plan
in whole or in part at any time and from time to time. The Committee, acting in
its discretion, may amend the Plan from time to time so long as the obligations
of the Company and its affiliates are not materially increased as a result
thereof. Neither the Board nor the Committee may amend the Plan in a manner that
would adversely affect the right of a participant or beneficiary to receive
payment of the amount credited to his or her Account.
(b) Termination. The Board may terminate the Plan at any time with
respect to all participating employers. Each participating Employer, by action
of its board of directors, may terminate its participation in the Plan. If the
Plan or an Employer's participation in the Plan is terminated, then no further
compensation will be deferred under the Plan on behalf of any individual who is
affected by the termination. Payment of
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<PAGE>
the affected participants' Accounts will be made as soon as practicable in the
form of single sum cash payments, provided, however, that, if the termination
occurs before a Change in Control and after the termination of a participant's
employment by the Company and its affiliates, and if the affected participant
had already begun to receive payment in the form of annual installments, then
the Committee may cause the payment of the balance of the affected participant's
Account to continue to be made in the form of annual installments over the
number of years remaining in his or her installment payout. Notwithstanding
anything to the contrary contained herein, unless the Board determines otherwise
before a Change in Control occurs, the Plan will automatically terminate upon
the occurrence of a Change in Control and the payment in full of all remaining
Plan Account balances will be accelerated and made simultaneously therewith or
as soon as practicable thereafter.
9. Trust; Limitations on Participants' Rights.
(a) Establishment of the Trust. The Company will establish an
irrevocable trust (the "Trust") to be maintained as part of the Plan. After a
participant's compensation is withheld for deferral under the Plan, the
participant's Employer will contribute a like amount to the Trust and the amount
of the contribution will be credited to the participant's Account.
(b) Trust Assets. The trustee of the Trust will invest the assets of
the Trust at the direction of the Company and in accordance with the terms of
the Trust agreement. The Company may, but is not required to, direct the trustee
to invest the Trust assets in a manner that mirrors the deemed investment of the
Plan Accounts. If more than one Employer participates in the Plan, then the
assets of the Trust attributable to each Employer's contributions will be held
and accounted for in separate trust. The assets of the Trust (or, as the case
may be, each separate trust) will be available to satisfy the Plan liabilities
of the Company (or, as the case may be, of the Employer with respect to whom a
separate trust is maintained). If an Employer becomes insolvent (within the
meaning of the Trust agreement) before the satisfaction of its Plan liabilities,
then the assets of the Trust attributable to that Employer will be subject to
and available to satisfy the claims of all the general creditors of the
Employer. The creditors of an Employer shall have no right or claim to assets of
the Trust that are held with respect to the participating employees of any other
Employer. The liability of the Company or any other Employer under the Plan will
be deemed to be satisfied if, and to the extent, it is paid from the Trust. No
Employer shall be liable for the deferred compensation obligations of any other
Employer under the Plan.
(c) Right of Setoff. The Employer shall have the right to reduce the
amount otherwise payable to a participant under the Plan (but not below zero) by
the amount, if any, that the participant owes the Employer at the time that such
amount would otherwise become payable to the participant under the Plan, and the
amount otherwise payable to the participant (or his or her beneficiary) under
the Plan will be reduced accordingly.
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<PAGE>
(d) Unsecured General Creditor. An Employer's obligation to pay
deferred compensation to a participant or beneficiary under the Plan is an
unfunded and unsecured promise to pay money in the future. Each participant and
beneficiary will be, and will have the rights of, a general unsecured creditor
of his or her Employer with respect to the payment obligations of the Employer
to such participant or beneficiary under the Plan.
10. Miscellaneous.
(a) Nonassignability. Except as specifically provided herein (with
respect to the Employer's right of offset), no participant or beneficiary may
pledge, transfer or assign in any way his or her right to receive payments under
the Plan, and any attempted pledge, transfer or assignment shall be void and of
no force or effect.
(b) Legal Fees To Enforce Rights After Change in Control. If, following
a Change in Control, any Employer fails to comply with any of its obligations
under the Plan or any agreement thereunder or, if the Employer takes any action
to declare the Plan void or unenforceable or institutes any litigation or other
legal action designed to deny, diminish or to recover from any participant the
benefits intended to be provided, then such participant shall be entitled to
retain counsel of his or her choice at the expense of the Company and/or
Employer (who shall be jointly and severally liable) to represent such
participant in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Company, the Employer or any
director, officer, shareholder or other person affiliated with the Company, the
Employer or any successor thereto in any jurisdiction.
(c) Not a Contract of Employment. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between any
participant and an Employer. Nothing in this Plan shall be deemed to give any
employee the right to be retained in the service of an Employer or to interfere
with the right of any Employer to terminate his or her employment at any time.
(d) Withholding of Taxes. All payments made under the Plan will be
subject to applicable income and employment tax withholding requirements.
(e) Governing Law. Subject to the applicable provisions of ERISA, the
Plan will be governed by the laws of the Commonwealth of Massachusetts,
excluding its conflict of law rules.
DATA GENERAL CORPORATION
Date: January 1, 1998 By: /s/ Robert C. McBride
----------------------- -------------------------------
Robert C. McBride
Title: Vice President and Treasurer
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Exhibit 4.2
GRANT OF COMMON STOCK TO NON-EMPLOYEE DIRECTORS
DATA GENERAL
DATA GENERAL CORPORATION
4400 Computer Drive, Westboro, MA 01580
Telephone: (508) 898-5000
(Name of Director)
(Address of Director) November 5, 1997
Dear (Name of Director):
This will confirm the award and grant to you on November 5, 1997 (the
"Effective Date") of 2,000 shares of Data General Corporation Common Stock (the
"Restricted Stock").
The Restricted Stock may not be sold, transferred, pledged or assigned
unless restrictions have lapsed. Upon each of the first four (4) anniversaries
of the Effective Date, provided that you are then serving as a Director of the
Company, restrictions shall lapse with respect to 500 Restricted Stock shares
(each such anniversary herein referred to as a "Lapse Date") and these shares
shall be owned by you free and clear of the restrictions.
Upon termination of your service as a Director due to death,
disability, change in control of the Company or retirement (a "Permitted
Termination") prior to the fourth anniversary of the Effective Date, all
restrictions on the Restricted Stock shall immediately lapse. Upon termination
of your service as a Director for any reason other than a Permitted Termination
prior to the fourth anniversary of the Effective Date, those shares of
Restricted Stock then subject to the restrictions will be forfeited.
You shall have the rights of a shareholder of Common Stock of the
Company from and after the Effective Date, including the right to vote the
Restricted Stock and the right to receive any cash dividends. Stock or other
dividends in kind or stock splits issued shall be treated as additional shares
of Restricted Stock subject to the same restrictions applicable to those shares
that are still restricted as of the date of any dividend or split.
You acknowledge and agree that the Restricted Stock shall be subject to
the terms stated here, and that the issuance of the Restricted Stock has not
been registered under the Securities Act of 1933, as amended, and that legends
reflecting these various restrictions will be placed on any certificates
evidencing the 2,000 shares granted. For your convenience, we will issue your
Restricted Stock in the form of four 500-share stock certificates. As
restrictions lapse, the legend will be removed for those shares no longer
subject to restrictions.
Very truly yours,
DATA GENERAL CORPORATION
By: /s/ Arthur W. DeMelle
---------------------
Arthur W. DeMelle,
Chief Financial Officer and
Senior Vice President
Accepted and Agreed:
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(Name of Director)
Exhibit 5
Fulbright & Jaworski L.L.P.
A Registered Limited Liability Partnership
666 Fifth Avenue
New York, New York 10103
telephone: 212/318-3000
facsimile: 212/752-5958
HOUSTON
WASHINGTON, D.C.
AUSTIN
SAN ANTONIO
DALLAS
NEW YORK
LOS ANGELES
LONDON
HONG KONG
January 28, 1998
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 (i) 12,000
shares of the Company's Common Stock, $0.01 par value (the "Common Stock"), to
be issued to non-employee directors of the Company in consideration for service
as directors of the Company and (ii) obligations under the Data General
Corporation Deferred Compensation Plan (the "Deferred Compensation Plan").
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:
(1) All necessary corporate proceedings by the Company have been duly
taken to authorize the issuance of the Common Stock and the shares of
Common Stock being registered pursuant to the Registration Statement
are duly authorized, validly issued, fully paid and non-assessable.
(2) The provisions of the written documents constituting the Deferred
Compensation Plan comply with the requirements of the Employee
Retirement Income Security Act of 1974, as amended, pertaining to such
provisions.
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 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 29, 1997, which appears on
page 34 of the 1997 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 27, 1997. We also consent to the
incorporation by reference of our report on the Financial Statement Schedules,
which appears on page 23 of such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Boston, Massachusetts
January 28, 1998
