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FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATA GENERAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 04-2436397
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
4400 Computer Drive
Westboro, Massachusetts 01580
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b)of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Preferred Stock Purchase Rights New York Stock Exchange
London Stock Exchange
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. |_|
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. |_|
Securities to be registered pursuant to Section 12(g) of the Act:
None (Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
On October 3, 1986, the Board of Directors of Data General
Corporation (the "Company") declared a dividend distribution of one Right for
each outstanding share of the Company's Common Stock, $.01 par value per share
(the "Common Stock"), to stockholders of record at the close of business on
October 20, 1986. Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series A Junior Participating Preferred
Stock, par value $.01 per share (the "Preferred Stock"), at a Purchase Price of
$100 per one one-hundredth of a share of Preferred Stock ("Purchase Price"),
subject to adjustment. The Purchase Price may be paid, at the option of the
holder, in cash or shares of Common Stock having a value at the time of exercise
equal to the Purchase Price. The description and terms of the Rights are set
forth in a Rights Agreement, renewed and restated as of October 19, 1996 (the
"Rights Agreement"), between the Company and The Bank of New York (as successor
to Morgan Shareholder Services Trust Company), as Rights Agent, as subsequently
amended by an Amendment No. 1 to Rights Agreement dated as of August 6, 1999.
Initially, the Rights will be represented by the certificates
evidencing the Common Stock and no separate Right Certificates will be
distributed. Upon the earlier of the following dates (the "Distribution Date"),
except as permitted by the Amendment No. 1 to Rights Agreement, the Rights will
separate from the Common Stock: (i) 10 days following a public announcement that
a person or group of affiliated or associated persons (an "Acquiring Person")
has acquired, or obtained the right to acquire, beneficial ownership of 20% or
more of the outstanding shares of Common Stock (the "Stock Acquisition Date"),
(ii) 10 days following the commencement of, or first announcement of the intent
of any person or persons to commence, a tender offer or exchange offer that
would result in a person or group beneficially owning 20% or more of the
outstanding shares of Common Stock, or (iii) 10 days after a majority of the
Continuing Directors (as defined below) of the Company shall declare any person
to be an "Adverse Person," upon a determination that such person, together with
its affiliates and associates, has become the beneficial owner of an amount of
Common Stock which a majority of the Continuing Directors determines to be
substantial (but in no event less than 15% of the shares of Common Stock then
outstanding) and a determination by a majority of the Continuing Directors that
(a) such beneficial ownership by such person is intended to cause the Company to
repurchase the Common Stock beneficially owned by such person or to cause
pressure on the Company to take action or enter into a transaction or series of
transactions intended to provide such person with short-term financial gain
under circumstances where a majority of the Continuing Directors determines that
the best long-term interests of the Company and its stockholders would not be
served by taking such action or entering into such transactions or series of
transactions at that time or (b) such beneficial ownership is causing or
reasonably likely to cause a material adverse impact (including, impairment of
relationships with customers or impairment of the Company's ability to maintain
its competitive position) on the business or prospects of the Company.
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates and will be transferred with and only with such
Common Stock certificates, (ii) new Common Stock certificates issued after
October 20, 1986 will contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and
will expire at 5:00 P.M. New York City time, on October 19, 2001 (the "Final
Expiration Date"), unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Right
Certificates will be mailed to the holders of record of the Common Stock as of
the close of business on the Distribution Date and, thereafter, the separate
Right Certificates alone will represent the Rights. Only shares of Common Stock
issued prior to the Distribution Date will be issued with Rights.
In the event that the Board of Directors determines that a
person is an Adverse Person or, at any time following the Distribution Date,
except as permitted by the Amendment No. 1 to Rights Agreement, (i) the Company
is the surviving corporation in a merger or other business combination with an
Acquiring Person and its Common Stock is not changed or exchanged, (ii) a Person
becomes the beneficial owner of more than 25% of the then outstanding shares of
Common Stock (except pursuant to an offer for all outstanding shares of Common
Stock which a majority of the Continuing Directors determines to be fair to and
otherwise in the best interests of the Company and its stockholders), (iii) an
Acquiring Person engages in one or more "self-dealing" transactions as set forth
in the Rights Agreement, or (iv) during such time as there is an Acquiring
Person, an event occurs which results in such Acquiring Person's ownership
interest being increased by more than 1% (e.g., a reverse stock split), each
holder of a Right promptly thereafter (but in the case of (ii) above, 5 days
thereafter) will have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company) having
a value equal to two times the exercise price of the Right. Notwithstanding any
of the foregoing, following the occurrence of any of the events set forth in
this paragraph, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any Acquiring Person or an
Adverse Person will be null and void. However, Rights are not exercisable
following the occurrence of any of the events set forth above until such time as
the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $100 per Right, each
Right not owned by an Acquiring Person (or by certain related parties) following
an event set forth in the preceding paragraph would entitle its holder to
purchase $200 worth of Common Stock (or other consideration, as noted above) for
$100. Assuming that the Common Stock had a per share value of $50 at such time,
the holder of each valid Right would be entitled to purchase four shares of
Common Stock for $100.
Unless the Rights are earlier redeemed, in the event that, at
any time following the Stock Acquisition Date, except as permitted by the
Amendment No. 1 to Rights Agreement, (i) the Company is acquired in a merger or
other business combination transaction in which the Company is not the surviving
corporation (other than a merger which follows an offer described in the second
preceding paragraph and is at the same price), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a Right
(except rights which previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise of such holder's Right,
common stock of the acquiring company having a value equal to two times the
exercise price of the Right.
The events set forth in the third preceding paragraph, and the
events set forth in subsections (i) and (ii) of the first preceding paragraph
shall collectively be termed "Triggering Events" and each a "Triggering Event."
The Purchase Price payable, and the number of one
one-hundredths of a share of Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to holders
of the Preferred Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1% of the
Purchase Price.
At any time on or prior to the close of business on the tenth
day following the Stock Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right, payable in cash or stock
(the "Redemption Price"). The Company may not redeem the Rights if a majority of
the Continuing Directors has previously determined a person to be an Adverse
Person. After the redemption period has expired, the Company's right of
redemption may be reinstated if an Acquiring Person reduces his beneficial
ownership to 10% or less of the outstanding shares of Common Stock in a
transaction or series of transactions not involving the Company. Immediately
upon the action of the Board of Directors ordering redemption of the Rights
with, where required, the concurrence of a majority of the Continuing Directors,
the Rights will terminate and the only right of the holders of Rights will be to
receive the $.01 Redemption Price.
The shares of Preferred Stock purchasable upon exercise of the
Rights will have a minimum preferential quarterly dividend of $2.50 per share,
but will be entitled to receive, in the aggregate, a dividend of 100 times the
dividend declared on the shares of Common Stock. In the event of liquidation,
the holders of the shares of Preferred Stock will be entitled to receive a
minimum liquidation payment of $100 per share, but will be entitled to receive
an aggregate liquidation payment equal to 100 times the payment made per share
of Common Stock. Each share of Preferred Stock will have one hundred votes,
voting together with the shares of Common Stock. In the event of any merger,
consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Preferred Stock will be entitled to receive 100 times
the amount and type of consideration received per share of Common Stock. The
rights of the shares of Preferred Stock as to dividends and liquidation, and in
the event of mergers and consolidation, are protected by customary anti-dilution
provisions.
The term "Continuing Directors" means any member of the Board
of Directors of the Company who was a member of the Board prior to the date of
the Rights Agreement, and any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person or an Adverse Person, or an
affiliate or associate of an Acquiring Person or an Adverse Person, or any
representative of the foregoing entities.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, other than rights resulting from
such holder's ownership of shares of Common Stock, including, without
limitation, the right to vote or to receive dividends. While the distribution of
the Rights will not be taxable to stockholders or to the Company, stockholders
may, depending upon the circumstances, recognize taxable income in the event
that the Rights become exercisable for Common Stock (or other consideration) of
the Company or for common stock of the acquiring company as set forth above.
In general, other than those provisions relating to the
principal economic terms of the Rights, the provisions of the Rights Agreement
may be amended by the Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended by the Board (with the concurrence of a majority of the
Continuing Directors) in order to cure any ambiguity, to make changes which do
not adversely affect the interests of holders of Rights (excluding the interests
of any Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable.
A copy of the Rights Agreement and the Amendment No. 1 to
Rights Agreement have been filed with the Securities and Exchange Commission as
Exhibits to Registration Statements on Form 8-A/A. A copy of the Rights
Agreement and Amendment No. 1 to Rights Agreement is available free of charge
from the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement
and the Amendment No. 1 to Rights Agreement, which are incorporated herein by
reference.
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Item 2. Exhibits
Exhibit 1. "Renewed and Restated Rights Agreement", dated as of
October 16, 1996, by and between Data General Corporation and
The Bank of New York as Rights Agent, which includes the form
of Certificate of Designations setting forth the terms of the
Series A Junior Participating Cumulative Preferred Stock as
Exhibit A, the form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Preferred Shares as Exhibit C,
filed as Exhibit 1 to that Form 8-A/A filed June 27, 1996 and
incorporated herein by reference.
Exhibit 2. "Amendment No. 1 to Rights Agreement" dated as of August 6,
1999 between Data General Corporation and The Bank of New
York as Rights Agent.
Exhibit 3. Agreement and Plan of Merger dated as of August 6, 1999 by
and among EMC Corporation, Emerald Merger Corporation and Data
General Corporation, filed as Exhibit 2.1 to that Form 8-K
filed August 11, 1999 and incorporated herein by reference.
Exhibit 4. Stock Option Agreement dated as of August 6, 1999 by and
between EMC Corporation and Data General Corporation, filed as
Exhibit 2.2 to that Form 8-K filed August 11, 1999 and
incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
DATA GENERAL CORPORATION
By: /s/ Jacob Frank
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Jacob Frank
Vice President and
General Counsel
Dated: September 13, 1999
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Exhibit 2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1, dated as of August 6, 1999 (this "Amendment"), is between
Data General Corporation, a Delaware corporation (the "Corporation"), and The
Bank of New York, as Rights Agent (the "Rights Agent").
Recitals
WHEREAS, the Corporation and the Rights Agent are parties to a Rights Agreement,
dated as of October 3, 1986 (Renewed and Restated as of October 19, 1996)
(the "Rights Agreement"); and
WHEREAS, EMC Corporation, a Massachusetts corporation ("EMC"), and the
Corporation propose to enter into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which the Corporation will merge with Emerald Merger
Corporation, a Delaware corporation and subsidiary of EMC (the "Merger"), and a
related Stock Option Agreement by and between the Corporation, as issuer, and
EMC, as grantee (the "Option Agreement"). The Board of Directors of the
Corporation has approved the Merger Agreement, the Merger and the Option
Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of Directors
of the Corporation has determined that an amendment to the Rights Agreement as
set forth herein is necessary and desirable in connection with the foregoing and
the Corporation and the Rights Agent desire to evidence such amendment in
writing;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, the parties hereto agree as follows:
(a) Amendment of Section 1(a). Section 1(a) of the Rights Agreement is amended
to add the following sentence at the end thereof:
Notwithstanding anything in this Rights Agreement to the contrary, EMC
shall not be deemed to be an Acquiring Person by virtue of (i) the
consummation of the Merger, (ii) the execution and delivery of the
Merger Agreement and the Option Agreement, or (iii) the consummation of
any of the other transactions contemplated in the Merger Agreement and
the Option Agreement.
(b) Amendment of Section 3(a). Section 3 (a) of the Rights Agreement is
amended to add the following sentence at the end thereof:
Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as the result of
(i) the consummation of the Merger, (ii) the execution of the Merger
Agreement and the Option Agreement, or (iii) the consummation of any of
the other transactions contemplated in the Merger Agreement and the
Option Agreement.
(c) Amendment of Section 1(k). Section 1(k) of the Rights Agreement is amended
and restated to read as follows:
(i) "Final Expiration Date" shall mean October 19, 2001.
(ii) "Merger" shall have the meaning set forth in the Merger
Agreement.
(iii) "Merger Agreement" shall mean that certain Agreement and
Plan of Merger, dated as of August 6, 1999, by and among
EMC, Emerald Merger Corporation and the Corporation, as
amended from time to time.
(iv) "Option Agreement" shall mean that certain Stock Option
Agreement, dated as of August 6, 1999, by and between
EMC, as grantee, and the Corporation, as issuer, as
amended from time to time.
(v) "EMC" shall mean EMC Corporation, a Massachusetts
corporation.
(d) Amendment of Section 7(a). Section 7(a) of the Rights Agreement is hereby
amended and restated to state in its entirety as follows:
Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the principal office of the Rights Agent as set
forth in Section 25 hereof, together with payment of the Purchase Price
with respect to each one one-hundredth of a share of Preferred Stock as
to which the Rights are exercised, at or prior to the Close of business
on the earlier of (i) the Final Expiration Date, (ii) the date on which
the Rights are redeemed as provided in Section 23 hereof, or (iii) the
consummation of the Merger (such earlier date being herein referred to
as the "Expiration Date").
(e) Amendment of Section 12. Section 12 of the Rights Agreement is amended to
add the following sentence at the end thereof:
Notwithstanding anything in this Rights Agreement to the contrary, none
of (i) the consummation of the Merger, (ii) the execution of the Merger
Agreement and the Option Agreement, and (iii) the consummation of any
of the other transactions contemplated in the Merger Agreement and the
Option Agreement shall be deemed to be events of the type described in
the first sentence of this Section 12, and shall not cause the Rights
to be adjusted or exercisable in accordance with, or any other action
to be taken or obligation to arise pursuant to, this Section 12.
(f) Effectiveness. This Amendment shall be deemed effective as of the date first
written above, as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
(g) Miscellaneous. This Amendment shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state, except as to the duties and
liabilities of the Rights Agent which shall be governed by and construed in
accordance with the laws of the State of New York. This Amendment may be
executed in any number of counterparts, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
It is the intent of the parties hereto to enforce the remainder of the terms,
provisions, covenants and restrictions to the maximum extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed, all as of the date and year first above
written.
Attest: DATA GENERAL CORPORATION
By: /s/ James K. Jacobs By: /s/ Robert C. McBride
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Name: James K. Jacobs Name: Robert C. McBride
Title: Assistant Secretary Title: Chief Administrative
Officer, Treasurer and Vice
President
Attest: THE BANK OF NEW YORK,
AS RIGHTS AGENT
By: /s/ Ralph Chianese By: /s/ Eon A. Canzius
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Name: Ralph Chianese Name: Eon A. Canzius
Title: Vice President Title: Assistant Treasurer
