-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LMIGPy7tnah4MOldPnXegKtA4lOVQF1jfnKbK6P+AZUaGFwiT1TnJqAdMv/K3InQ 4tst1jZTpNxBz8ERdg4gYw== 0000026999-98-000004.txt : 19980130 0000026999-98-000004.hdr.sgml : 19980130 ACCESSION NUMBER: 0000026999-98-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980129 EFFECTIVENESS DATE: 19980129 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DATA GENERAL CORP CENTRAL INDEX KEY: 0000026999 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER & OFFICE EQUIPMENT [3570] IRS NUMBER: 042436397 STATE OF INCORPORATION: DE FISCAL YEAR END: 0925 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45153 FILM NUMBER: 98516766 BUSINESS ADDRESS: STREET 1: 4400 COMPUTER DR CITY: WESTBORO STATE: MA ZIP: 10580 BUSINESS PHONE: 5088985000 MAIL ADDRESS: STREET 1: 4400 COMPUTER DRIVE CITY: WESTBORO STATE: MA ZIP: 10580 S-8 1 S-8 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 CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------- 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 - ------------------------------------------------------------------------------------------------------------------------ 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 ======================================================================================================================== (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.
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. ================================================================================ 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. . 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 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 (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 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 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 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). EX-4.1 2 DGC DEFERRED COMPENSATION PLAN 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 -1- (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. -2- 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 -3- 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. -4- 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 -5- 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. -6- (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 -7- 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. -8- (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 -9- EX-4.2 3 GRANT OF COMMON STOCK TO NON-EE DIRECTORS 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: - --------------------- (Name of Director) EX-5 4 OPINION REGARDING LEGALITY 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. EX-23.1 5 CONSENTS OF EXPERTS AND COUNSEL 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 -----END PRIVACY-ENHANCED MESSAGE-----