AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1999
REGISTRATION NO. 333-86659
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
EMC CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
MASSACHUSETTS 3572 04-2680009
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
35 PARKWOOD DRIVE
HOPKINTON, MASSACHUSETTS 01748
(508) 435-1000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
------------------------------
PAUL T. DACIER, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
EMC CORPORATION
35 PARKWOOD DRIVE
HOPKINTON, MASSACHUSETTS 01748
(508) 435-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES TO:
MARGARET A. BROWN, ESQ. EDWARD D.HERLIHY, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP WACHTELL, LIPTON, ROSEN & KATZ
ONE BEACON STREET 51 WEST 52ND STREET
BOSTON, MASSACHUSETTS 02108 NEW YORK, NEW YORK 10019
(617) 573-4800 (212) 403-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS
SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE AND
CERTAIN OTHER CONDITIONS UNDER THE MERGER AGREEMENT ARE MET OR WAIVED.
If any of the securities being registered on this Form are to be
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (2) REGISTRATION FEE (3)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, par value $.01 18,151,403 $18.1875 $330,128,629 $66,026
per share
===============================================================================================================
</TABLE>
(1) Based on the estimated maximum number of shares of EMC common stock to
be issued in connection with the merger.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(f) of the Securities Act of 1933, as amended,
based upon the average of the high and low sale prices of shares of the
common stock of Data General Corporation on the New York Stock Exchange
on August 31, 1999.
(3) Estimated in accordance with Rule 457(c) and (f), solely for the
purpose of determining the registration fee. Represents the product of
(i) $18.1875, the average of the high and low prices reported on the
New York Stock Exchange on August 31, 1999 for Data General common
stock, multiplied by (ii) 55,645,010, the maximum number of shares of
Data General common stock which will be converted into shares of EMC
common stock pursuant to the merger. The entire amount of the
registration fee has been offset by amounts previously paid by Data
General in connection with the filing of preliminary proxy materials by
Data General with the Commission on August 20, 1999 as permitted by
Rule 457(b). Accordingly, no additional fee has been paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS.
Section 67 of Chapter 156B of the Massachusetts General Law
authorizes a corporation to indemnify any director, officer, employee or
other agent of the corporation to whatever extent specified in or
authorized by (i) the articles of organization, (ii) a by-law adopted by
the stockholders or (iii) a vote adopted by the holders of a majority of
the shares of stock entitled to vote on the election of directors.
Article 6(k) of the Registrant's Restated Articles of Association
provides as follows:
No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director to the extent provided by applicable law
notwithstanding any provision of law imposing such liability; provided,
however, that to the extent, and only to the extent, required by Section
13(b) (1 1/2) or any successor provision of the Massachusetts Business
Corporation Law, this provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under sections 61 or 62 of the Massachusetts Business
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. This provision shall not be construed
in any way so as to impose or create liability. The foregoing provisions of
this Article 6(k) shall not eliminate the liability of a director for any
act or omission occurring prior to the date on which this Article 6(k)
becomes effective. No amendment to or repeal of this Article 6(k) shall
apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omission of
such director occurring prior to such amendment or repeal.
In addition, Article Section 7 of the Registrant's Amended and
Restated By-Laws, entitled "Indemnification of Directors and Officers,"
provides as follows:
The corporation shall, to the extent legally permissible, indemnify
each of its directors and officers (including persons who act at its
request as directors, officers or trustees of another organization or in
any capacity with respect to any employee benefit plan) against all
liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees,
reasonably incurred by him in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, in which
he may be involved or with which he may be threatened, while in office or
thereafter, by reason of his being or having been such a director or
officer, except with respect to any matter as to which he shall have been
adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interests of the
corporation (any person serving another organization in one or more of the
indicated capacities at the request of the corporation who shall have acted
in good faith in the reasonable belief that his action was in the best
interests of such other organization to be deemed as having acted in such
manner with respect to the corporation) or, to the extent that such matter
related to service with respect to any employee benefit plan, in the best
interest of the participants or beneficiaries of such employee benefit
plan; provided, however, that as to any matter disposed of by a compromise
payment by such director or officer, pursuant to a consent decree or
otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless such compromise shall be approved as in
the best interests of the corporation, after notice that it involves such
indemnification: (a) by a disinterested majority of the directors then in
office; or (b) by a majority of the disinterested directors then in office,
provided that there has been obtained an opinion in writing of independent
legal counsel to the effect that such director or officer appears to have
acted in good faith in the reasonable belief that his action was in the
best interests of the corporation; or (c) by the holders of a majority of
the outstanding stock at the time entitled to vote for directors, voting as
a single class, exclusive of any stock owned by any interested director or
officer. Expenses, including counsel fees, reasonably incurred by any
director or officer in connection with the defense or disposition of any
such action, suit or other proceeding may be paid from time to time by the
corporation in advance of the final disposition thereof upon receipt of an
undertaking by such director or officer to repay the amounts so paid to the
corporation if it is ultimately determined that indemnification for such
expenses is not authorized under this Section 7. The right of
indemnification hereby provided shall not be exclusive of or affect any
other rights to which any director or officer may be entitled. As used in
this Section, the terms "director" and "officer" include their respective
heirs, executors and administrators, and an "interested" director or
officer is one against whom in such capacity the proceedings in question or
another proceeding on the same or similar grounds is then pending. Nothing
contained in this Section shall affect any rights to indemnification to
which corporate personnel other than directors or officers may be entitled
by contract or otherwise under law.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
------ ------------
2.1 Agreement and Plan of Merger dated as of August 6, 1999 by and
among EMC Corporation ("EMC"), Emerald Merger Corporation and
Data General Corporation.(14)
3.1 Articles of Organization of EMC Corporation.(1)
3.2 Articles of Amendment filed February 26, 1986.(1)
3.3 Articles of Amendment filed April 2, 1986.(1)
3.4 Articles of Amendment filed May 13, 1987.(2)
3.5 Articles of Amendment filed June 19, 1992.(3)
3.6 Articles of Amendment filed May 12, 1993.(4)
3.7 Articles of Amendment filed November 12, 1993.(5)
3.8 Articles of Amendment filed May 10, 1995.(6)
3.9 Articles of Amendment filed May 7, 1997.(7)
3.10 Articles of Amendment filed May 13, 1999.(8)
3.11 Amended and Restated By-laws of EMC Corporation.(9)
4.1 Form of Stock Certificate.(10)
4.2 Indenture, dated as of March 11, 1997 between EMC Corporation
and State Street Bank and Trust Company, Trustee.(11)
4.3 Form of 3 1/4% Convertible Subordinated Note due 2002.(11)
4.4 Indenture, dated as of May 21, 1997 between Data General
Corporation and The Bank of New York.(12)
4.5 Form of 6% Convertible Subordinated Note due 2004.(13)
4.6 First Supplemental Indenture, dated as of October 12, 1999
between Data General Corporation and The Bank of New York.(15)
5.1 Opinion of Paul T. Dacier, Esq., Vice President and General
Counsel of EMC, regarding validity of securities being
registered.(14)
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding
certain tax matters.(15)
8.2 Opinion of Wachtell, Lipton, Rosen & Katz regarding certain tax
matters.(15)
10.1 EMC Corporation 1985 Stock Option Plan, as amended.(9)
10.2 EMC Corporation 1992 Stock Option Plan for Directors, as
amended.(9)
10.3 EMC Corporation 1993 Stock Option Plan, as amended.(9)
21.1 Subsidiaries of Registrant.(9)
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included as
part of its opinion filed as Exhibit 8.1 and incorporated herein
by reference).
23.2 Consent of PricewaterhouseCoopers LLP.(14)
23.3 Consent of Wachtell, Lipton, Rosen & Katz (included as part of
its opinion filed as Exhibit 8.2 and incorporated herein by
reference).
23.4 Consent of Morgan Stanley & Co. Incorporated (included as part
of its opinion filed as Exhibit 99.1 and incorporated herein by
reference).
23.5 Consent of Paul T. Dacier, Esq., Vice President and General
Counsel of EMC (included as part of his opinion filed as
Exhibit 5.1 and incorporated herein by reference).
23.6 Consent of PricewaterhouseCoopers LLP.(14)
24.1 Power of Attorney.(14)
99.1 Opinion of Morgan Stanley, & Co. Incorporated.(14)
99.2 Form of Proxy of Data General Corporation.(14)
1. Incorporated by reference to the Company's Registration Statement on
Form S-1 (No. 33-3656).
2. Incorporated by reference to the Company's Registration Statement on
Form S-1 (No. 33-17218).
3. Incorporated by reference to the Company's Annual Report on Form 10-K
filed February 12, 1993.
4. Incorporated by reference to the Company's Registration Statement on
Form S-1 (No. 33-67224).
5. Incorporated by reference to the Company's Current Report on Form 8-K
filed November 19, 1993.
6. Incorporated by reference to the Company's Current Report on Form 8-K
filed May 26, 1995. 7. Incorporated by reference to the Company's
Quarterly Report on Form 10-Q filed May 14, 1997.
8. Incorporated by reference to the Company's Quarterly Report on Form
10-Q filed May 13, 1999.
9. Incorporated by reference to the Company's Annual Report on Form 10-K
filed March 11, 1999.
10. Incorporated by reference to the Company's Annual Report on Form 10-K
filed March 31, 1988.
11. Incorporated by reference to the Company's Registration Statement on
Form S-3 (No. 333-24901).
12. Incorporated by reference to the Registration Statement on Form S-3
of Data General Corporation filed June 27, 1997.
13. Incorporated by reference to the Registration Statement on Form 8-A
of Data General Corporation filed March 16, 1998.
14. Previously filed with this Registration Statement on Form S-4 on
September 7, 1999.
15. Filed herewith.
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) 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 this 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;
(2) that prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part of
this registration statement, by any person or party who is deemed
to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters,
in addition to the information called for by the other Items of the
applicable form;
(3) that every prospectus (i) that is filed pursuant to paragraph
(2) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement
and will not be used until such amendment is effective, and that,
for purposes 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;
(4) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13
of this Form S-4 under the Securities Act of 1933, within one
business day of receipt of any such request, and to send the
incorporated documents by first class mail or other equally prompt
means, including information contained in documents filed
subsequent to the effective date of the registration statement
through the date of responding to such request; and
(5) to supply by means of a post-effective amendment all
information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and included
in the registration statement when it became effective.
Insofar as indemnification for liabilities under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described in Item 20 above, 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 and is therefore unenforceable.
In the event that a claim of 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 a successful
defense of any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Hopkinton,
Commonwealth of Massachusetts, on October 14, 1999.
EMC CORPORATION
By: /s/ Michael C. Ruettgers*
-------------------------------------
Michael C. Ruettgers
President and Chief Executive Officer
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Richard J. Egan* Chairman of the Board October 14, 1999
- ---------------------
Richard J. Egan
/s/ Michael C.Ruettgers* President, Chief Executive Officer October 14, 1999
- --------------------------- and Director
Michael C. Ruettgers (Principal Executive Officer)
/s/ Colin G. Patteson* Senior Vice President, Chief October 14, 1999
- --------------------------
Colin G. Patteson Administrative Officer and Treasurer
(Principal Financial Officer)
/s/ William J. Teuber, Jr.* Vice President and Chief Financial October 14, 1999
- ----------------------------- Officer
William J. Teuber, Jr. (Principal Accounting Officer)
/s/ Michael J.Cronin* Director October 14, 1999
- -----------------------
Michael J. Cronin
/s/ John R. Egan* Director October 14, 1999
- -----------------------
John R. Egan
/s/ Maureen E. Egan* Director October 14, 1999
- ----------------------
Maureen E. Egan
/s/ W. Paul Fitzgerald* Director October 14, 1999
- ------------------------
W. Paul Fitzgerald
/s/ Joseph F. Oliveri* Director October 14, 1999
-----------------------
Joseph F. Oliveri
* By: /s/ Paul T. Dacier
-------------------
Paul T. Dacier
Attorney-in-Fact
</TABLE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
2.1 Agreement and Plan of Merger dated as of August 6, 1999 by and
among EMC Corporation ("EMC"), Emerald Merger Corporation and
Data General Corporation.(14)
3.2 Articles of Amendment filed February 26, 1986.(1)
3.3 Articles of Amendment filed April 2, 1986.(1)
3.4 Articles of Amendment filed May 13, 1987.(2)
3.5 Articles of Amendment filed June 19, 1992.(3)
3.6 Articles of Amendment filed May 12, 1993.(4)
3.7 Articles of Amendment filed November 12, 1993.(5)
3.8 Articles of Amendment filed May 10, 1995.(6)
3.9 Articles of Amendment filed May 7, 1997.(7)
3.10 Articles of Amendment filed May 13, 1999.(8)
3.11 Amended and Restated By-laws of EMC Corporation.(9)
4.1 Form of Stock Certificate.(10)
4.2 Indenture, dated as of March 11, 1997 between EMC Corporation
and State Street Bank and Trust Company, Trustee.(11)
4.3 Form of 3 1/4% Convertible Subordinated Note due 2002.(11)
4.4 Indenture, dated as of May 21, 1997 between Data General
Corporation and The Bank of New York.(12)
4.5 Form of 6% Convertible Subordinated Note due 2004.(13)
4.6 First Supplemental Indenture, dated as of October 12, 1999
between Data General Corporation and The Bank of New York.(15)
5.1 Opinion of Paul T. Dacier, Esq., Vice President and General
Counsel of EMC, regarding validity of securities being
registered.(14)
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding
certain tax matters.(15)
8.2 Opinion of Wachtell, Lipton, Rosen & Katz regarding certain tax
matters.(15)
10.1 EMC Corporation 1985 Stock Option Plan, as amended.(9)
10.2 EMC) Corporation 1992 Stock Option Plan for Directors,
as amended.(9)
10.3 EMC Corporation 1993 Stock Option Plan, as amended.(9)
21.1 Subsidiaries of Registrant.(9)
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included as
part of its opinion filed as Exhibit 8.1 and incorporated herein
by reference).
23.2 Consent of PricewaterhouseCoopers LLP.(14)
23.3 Consent of Wachtell, Lipton, Rosen & Katz (included as part of
its opinion filed as Exhibit 8.2 and incorporated herein by
reference).
23..4 Consent of Morgan Stanley & Co. Incorporated (included as part
of its opinion filed as Exhibit 99.1 and incorporated herein by
reference).
23.5 Consent of Paul T. Dacier, Esq., Vice President and General
Counsel of EMC (included as part of his opinion filed as
Exhibit 5.1 and incorporated herein by reference).
23.6 Consent of PrincwaterhouseCoopers LLP.(14)
24.1 Power of Attorney (included on the signature page of this Form
S-4 and incorporated herein by reference).(14)
99.1 Opinion of Morgan Stanley, & Co. Incorporated.(14)
99.2 Form of Proxy of Data General Corporation.(14)
1. Incorporated by reference to the Company's Registration Statement on
Form S-1 (No. 33-3656).
2. Incorporated by reference to the Company's Registration Statement on
Form S-1 (No. 33-17218).
3. Incorporated by reference to the Company's Annual Report on Form 10-K
filed February 12, 1993.
4. Incorporated by reference to the Company's Registration Statement on
Form S-1 (No. 33-67224).
5. Incorporated by reference to the Company's Current Report on Form 8-K
filed November 19, 1993.
6. Incorporated by reference to the Company's Current Report on Form 8-K
filed May 26, 1995. 7. Incorporated by reference to the Company's
Quarterly Report on Form 10-Q filed May 14, 1997.
8. Incorporated by reference to the Company's Quarterly Report on Form
10-Q filed May 13, 1999.
9. Incorporated by reference to the Company's Annual Report on Form 10-K
filed March 11, 1999.
10. Incorporated by reference to the Company's Annual Report on Form 10-K
filed March 31, 1988.
11. Incorporated by reference to the Company's Registration Statement on
Form S-3 (No. 333-24901).
12. Incorporated by reference to the Registration Statement on Form S-3
of Data General Corporation filed June 27, 1997.
13. Incorporated by reference to the Registration Statement on Form 8-A
of Data General Corporation filed March 16, 1998.
14. Previously filed with this Registration Statement on Form S-4 on
September 7, 1999.
15. Filed herewith.
Exhibit 4.6
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of October 12, 1999, by
and between Data General Corporation, a Delaware corporation ("Data
General"), and The Bank of New York, as Trustee (the "Trustee"), under the
Indenture dated as of May 21, 1997 (the "Indenture").
WHEREAS, the Indenture was authorized, executed and delivered
by Data General to provide for the issuance by Data General of Data
General's 6% Convertible Subordinated Notes Due 2004 (the "Notes"), and
WHEREAS, pursuant to the Agreement and Plan of Merger (the
"Merger Agreement") dated as of August 6, 1999 by and among EMC
Corporation, a Massachusetts corporation ("the Company"), Emerald Merger
Corporation, a Delaware corporation and wholly owned subsidiary of the
Company ("Merger Sub"), and Data General, Merger Sub will merge with and
into Data General and Data General will survive the merger as a wholly
owned subsidiary of the Company; and
WHEREAS, Data General hereby requests that the Trustee
execute this First Supplemental Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH,
that, in consideration of the premises, it is mutually agreed, for the
benefit of each other and for the equal and proportionate benefit of all
holders from time to time of the Notes, as follows:
ARTICLE I
SECTION 1.1 DEFINITIONS
Terms defined in the Indenture and used without other
definition herein have the respective meanings ascribed to them in the
Indenture.
SECTION 1.2 AMENDMENT TO EXHIBIT A OF THE INDENTURE.
The form of Note, as attached as Exhibit A to the Indenture, is
hereby amended by deleting the reference to the Conversion Price being
$26.194 and revising such amount to be $83.8208.
SECTION 1.3 CONVERTIBILITY OF NOTES.
The Notes shall be convertible into the kind and amount of
shares of stock and other securities or property or assets (including cash)
receivable, upon the merger of Data General with Merger Sub pursuant to
which holders of common stock, par value $0.01 per share of Data General,
shall be entitled to receive stock, or other assets (including cash) with
respect to or in exchange for such common stock, by such holder of a number
of shares of such common stock issuable upon conver sion of such Notes
immediately prior to such merger.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 SEVERABILITY.
In case any provision in this First Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 2.2 GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
SECTION 2.3 RATIFICATION.
This First Supplemental Indenture is a supplement to the
Indenture. As supplemented by this First Supplemental Indenture, the
Indenture is in all respects ratified, approved and confirmed and the
Indenture and this First Supple mental Indenture shall together constitute
one and the same instrument.
SECTION 2.4 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 2.5 THE TRUSTEE.
The Trustee shall not be responsible in any matter whatsoever
for or in respect of the validity or sufficiency of this First Supplemental
Indenture or for or in respect of the Recitals contained herein.
IN WITNESS WHEREOF, DATA GENERAL CORPORATION has caused this
First Supplemental Indenture to be signed in its corporate name and
acknowledged by one of its duly authorized officers; and The Bank of New
York, as Trustee, has caused this Indenture to be signed and acknowledged
by one of its duly authorized signatories as of the day and year first
above written.
[Signatures on following page]
DATA GENERAL CORPORATION
By: /s/ Ronald L. Skates
------------------------------
Name: Ronald L. Skates
Title: President and CEO and
Director
THE BANK OF NEW YORK, as Trustee
By: /s/ Mary Jane Schmalzel
-------------------------------
Name: Mary Jane Schmalzel
Title: Vice President
Exhibit 8.1
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
October 12, 1999
EMC Corporation
35 Parkwood Drive
Hopkinton, MA 01748
Ladies and Gentlemen:
We have acted as tax counsel to EMC Corporation ("EMC"), a
Massachusetts corporation, in connection with (i) the Merger, as defined
and described in the Agreement and Plan of Merger, dated as of August 6,
1999 (the "Merger Agreement"), by and among EMC, Emerald Merger
Corporation, a Delaware corporation and a wholly owned subsidiary of EMC
("Merger Sub") and Data General Corporation, a Delaware corporation ("Data
General"), and (ii) the preparation and filing of the Registration
Statement with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), on
September 7, 1999 (the "Registration Statement"), which includes the Proxy
Statement/Prospectus of Data General (the "Proxy Statement/Prospectus").
The delivery of this opinion, dated as of October 12, 1999, is a condition
of the Merger pursuant to Section 7.1(e) of the Merger Agreement. Unless
otherwise indicated, each capitalized term used herein has the meaning
ascribed to it in the Merger Agreement.
In connection with this opinion, we have examined the Merger
Agreement, the Proxy Statement/Prospectus and such other documents and
corporate records as we have deemed necessary or appropriate in order to
enable us to render the opinion below. For purposes of this opinion, we
have assumed (i) the validity and accuracy of the documents and corporate
records that we have examined and the facts and representations concerning
the Merger that have come to our attention during our engagement, (ii) that
the Merger will be consummated in the manner described in the Merger
Agreement and the Proxy Statement/Prospectus, (iii) that the
representations made to us by EMC and Data General in their respective
certificates dated as of the date hereof, and delivered to us for purposes
of this opinion, are accurate and complete, (iv) that the Merger will be
reported by EMC, Merger Sub and Data General on their respective federal
income tax returns in a manner consistent with the opinion set forth below,
and (v) that each of the Merger and the Upstream Merger, if it occurs, will
qualify as a statutory merger under the applicable laws of the State of
Delaware and the Commonwealth of Massachusetts.
In rendering our opinion, we have considered the applicable
provisions of the Code, Treasury Department regulations promulgated
thereunder, pertinent judicial authorities, interpretive rulings of the IRS
and such other authorities as we have considered relevant. It should be
noted that statutes, regulations, judicial decisions and administrative
interpretations are subject to change at any time (possibly with
retroactive effect). A change in the authorities or the accuracy or
completeness of any of the facts, information, documents, corporate
records, covenants, statements, representations or assumptions on which our
opinion is based could affect our conclusions. This opinion is expressed as
of the date hereof, and we are under no obligation to supplement or revise
our opinion to reflect any changes (including changes that have retroactive
effect) (i) in applicable law or (ii) in any fact, information, document,
corporate record, covenant, statement, representation or assumption stated
herein that becomes untrue or incorrect.
Subject to the assumptions set forth above, and the assumptions
and qualifications set forth in the discussion in the Proxy
Statement/Prospectus under the heading "United States Federal Income Tax
Consequences of the Merger" (the "Discussion"), in our opinion the Merger
will qualify, either alone or taken together with the Upstream Merger, as a
reorganization within the meaning of Section 368(a) of the Code. The
opinion set forth above does not address all of the United States federal
income tax consequences of the Merger. In addition, we express no opinion
as to the United States federal, state, local, foreign or other tax
consequences other than as set forth above. Further, there can be no
assurances that the opinion expressed herein will be accepted by the
Internal Revenue Service (the "IRS") or, if challenged, by a court.
This letter is furnished to you for use in connection with the
Merger, as described in the Merger Agreement and the Proxy
Statement/Prospectus, and is not to be used, circulated, quoted, or
otherwise referred to for any other purpose without our express written
permission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 8.2
[Letterhead of Wachtell, Lipton, Rosen & Katz]
October 12, 1999
Data General Corporation
4400 Computer Drive
Westboro, Massachusetts 01580
Ladies/Gentlemen:
We have acted as counsel to Data General Corporation, a
Delaware corporation ("Data General"), in connection with the proposed
merger (the "Merger") of Emerald Merger Corporation ("Merger Sub"), a
Delaware corporation and a wholly owned subsidiary of EMC Corporation, a
Massachusetts corporation ("EMC"), with and into Data General upon the
terms and conditions set forth in the Agreement and Plan of Merger dated as
of August 6, 1999, by and among Data General, EMC, and Merger Sub (the
"Merger Agreement") and the subsequent merger (the "Upstream Merger") of
Data General with and into EMC pursuant to certain letter agreements
between EMC and Data General, dated October 4, 1999 and October 11, 1999
(the "Letter Agreements") and Section 6.7 of the Merger Agreement. At your
request, and pursuant to Section 7.1(e) of the Merger Agreement, we are
rendering our opinion concerning certain federal income tax consequences of
the Merger. Any capitalized term used and not defined herein has the
meaning given to it in the Merger Agreement.
For purposes of the opinion set forth below, we have
relied, with the consent of Data General and the consent of EMC, upon the
accuracy and completeness of the statements and representations (which
statements and representations we have neither investigated nor verified)
contained, respectively, in the certificates of the officers of Data
General and EMC dated the date hereof, and have assumed that such
certificates will remain complete and accurate at the Effective Time and at
the effective time of the Upstream Merger, if it occurs, and that all
representations made to the knowledge of any person or entity or with
similar qualification are and will be true and correct as if made without
such qualification. We have also relied upon the accuracy of the
Registration Statement and the Proxy Statement/Prospectus.
We have also assumed that (i) the transactions
contemplated by the Merger Agreement and the Letter Agreements will be
consummated in accordance therewith and, in the case of the transactions
contemplated by the Merger Agreement, as described in the Registration
Statement and the Proxy Statement/Prospectus (and no terms or conditions
therein material to this opinion will be waived), (ii) the Merger will be
reported by EMC, Merger Sub and Data General on their respective federal
income tax returns in a manner consistent with the opinion set forth below,
and (iii) each of the Merger and the Upstream Merger, if it occurs, will
qualify as a statutory merger under the applicable laws of the State of
Delaware and the Commonwealth of Massachusetts.
Based upon and subject to the foregoing, under currently
applicable United States federal income tax law, it is our opinion, for
United States federal income tax purposes, that the Merger will qualify,
either alone or taken together with the Upstream Merger, as a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code").
We express no opinion as to the United States federal
income tax consequences of the Merger to stockholders subject to special
treatment under United States federal income tax law (including, for
example, foreign persons, financial institutions, dealers in securities or
foreign currencies, traders in securities who elect to apply a
mark-to-market method of accounting, insurance companies, tax-exempt
entities, holders who do not hold their shares as capital assets, holders
who acquired their shares pursuant to the exercise of an employee stock
option or right or otherwise as compensation, and holders who hold EMC
Common Stock or Data General Common Stock as part of a "hedge," "straddle"
or "conversion transaction"). In addition, no opinion is expressed with
respect to the tax consequences of the Merger under applicable foreign,
state or local laws or under any federal tax laws other than those
pertaining to the income tax.
We are furnishing this opinion to you solely in
connection with the Merger and this opinion is not to be relied upon,
circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
