-----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, NMG8oB4N71T4oEDmXNkrCxDnCTc0YeP02O8aB6A7SHVt/xAAi9CtQTdwR244qe/F HBKniTzLrVxVwijBY7HDRg== 0000026999-98-000031.txt : 19981228 0000026999-98-000031.hdr.sgml : 19981228 ACCESSION NUMBER: 0000026999-98-000031 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19981223 EFFECTIVENESS DATE: 19981223 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: 333-69559 FILM NUMBER: 98774537 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 December 23, 1998 Registration No. ______________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 DATA GENERAL CORPORATION (Exact Name of Registrant as Specified in Its Charter) Delaware 04-2436397 (State or Other Jurisdiction of I.R.S. Employer Identification Incorporation or Organization) Number) 4400 Computer Drive Westboro, MA 01580 (508) 898-5000 (Address of Principal Executive Offices) (Zip Code) DATA GENERAL CORPORATION 1998 EMPLOYEE STOCK OPTION PLAN DATA GENERAL CORPORATION 1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full Title of the Plans) -------------------- RONALD L. SKATES DATA GENERAL CORPORATION 4400 Computer Drive Westboro, MA 01580 (Name and Address of Agent For Service) Telephone Number, Including Area Code, of Agent For Service: (508) 898-5000 Copies of all communications, including all communications sent to the agent for service, should be sent to: CARL E. KAPLAN, ESQ. Fulbright & Jaworski L.L.P. 666 Fifth Avenue New York, New York 10103 (212) 318-3000 fax: (212) 752-5958 CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed maximum offering Proposed maximum aggregate Amount of registered registered (1) price per share(2) offering price (2) registration fee --------------------------------- ---------------- --------------------------- --------------------------- ------------------ Common Stock, $.01 par value (3) 2,500,000 $17.4375 $43,593,750 $12,119.06 --------------------------------- ---------------- --------------------------- --------------------------- ------------------ Common Stock, $.01 par value (4) 150,000 $17.4375 $2,615,625 $727.14 --------------------------------- ---------------- --------------------------- --------------------------- ------------------ (1) Plus such additional indeterminable number of shares as may be required pursuant to the Data General Corporation 1998 Employee Stock Option Plan and the Data General Corporation 1998 Non-Employee Director Stock Option Plan in the event of a stock dividend, stock split, recapitalization or other similar change in the Common Stock. (2) The price is estimated in accordance with Rule 457(h)(1) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Common Stock as reported on the New York Stock Exchange on December 17, 1998 (3) Represents the number of shares of Common Stock under this Registration Statement that may be issued under the Data General Corporation 1998 Employee Stock Option Plan. (4) Represents the number of shares of Common Stock under this Registration Statement that may be issued under the Data General Corporation 1998 Non-Employee Director Stock Option Plan.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS In accordance with the rules and regulations of the Securities and Exchange Commission, the documents containing the information called for in Part I of Form S-8 will be sent or given to individuals who participate in the Data General Corporation 1998 Employee Stock Option Plan or the Data General Corporation 1998 Non-Employee Director Stock Option Plan adopted by Data General Corporation and are not being filed with or included in this Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by Data General Corporation (the "Company") are incorporated herein by reference: (i) The Company's Annual Report on Form 10-K for the fiscal year ended September 26, 1998. (ii) The description of the Company's Common Stock contained in its Registration Statement on Form 8-A dated November 7, 1973, as amended on February 28, 1985 and April 12, 1985. In addition to the foregoing, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all of the securities offered hereunder have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that is also incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Carl E. Kaplan, Secretary of the Company, is a partner in Fulbright & Jaworski L.L.P., and Frederick R. Adler, a Director and Chairman of the Executive Committee of the Board of Directors of the Company, is of counsel to Fulbright & Jaworski L.L.P. Messrs. Kaplan and Adler and certain other partners of Fulbright & Jaworski L.L.P. beneficially owned an aggregate of 296,057 shares of Common Stock of the Company as of December 17, 1998. Item 6. Indemnification of Directors and Officers Section 145 of the General Corporation Law of Delaware permits indemnification of directors, officers and employees of a corporation under certain conditions and subject to certain limitations. Article TENTH of the Company's Restated Certificate of Incorporation and Article VI of the Company's By-Laws contain provisions for the indemnification of directors, officers and employees within the limitations permitted by Section 145. The Company has also entered into indemnification agreements with its directors and officers based on the indemnification provisions in Section 145. The Company carries a directors' and officers' liability insurance policy which provides for payment of certain liability claims and the related expenses of the Company's directors and officers in connection with threatened, pending, or completed actions, suits or proceedings against them in their capacities as directors and officers, in accordance with the Company's By-laws and the General Corporation Law of Delaware. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits 4.1 -- Data General Corporation 1998 Employee Stock Option Plan 4.2 -- Data General Corporation 1998 Non-Employee Director Stock Option Plan 5 -- Opinion of Fulbright & Jaworski L.L.P. 23.1 -- Consent of PricewaterhouseCoopers LLP 23.2 -- Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5). 24 -- Power of Attorney (included in signature page). Item 9. Undertakings (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement or the most recent post-effective amendment thereof which, individually or in the aggregate, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person of the registrant in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Westboro, Massachusetts on the 21st day of December, 1998. DATA GENERAL CORPORATION By: /s/ Ronald L. Skates -------------------------- Ronald L. Skates President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, the Board of Directors of Data General Corporation has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Westboro, Massachusetts on the 21st day of December, 1998. Signature Title Date - ------------------------------- ---------------------------- ----------------- /s/ Ronald L. Skates President, Chief December 21, 1998 - -------------------- Executive Officer, Director, Ronald L. Skates (Principle Executive Officer) /s/ John J. Gavin Jr. Vice President, Controller December 21, 1998 - -------------------- and Acting Chief Financial John J. Gavin Jr. Officer /s/ Robert C. McBride Vice President, Treasurer December 21, 1998 - --------------------- and Acting Chief Accounting Robert C. McBride Officer /s/ Ferdinand Colloredo-Mansfeld Director December 21, 1998 - ------------------------------- Ferdinand Colloredo-Mansfeld /s/ Jeffrey M. Cunningham Director December 21, 1998 - ------------------------- Jeffrey M. Cunningham /s/ W. Nicholas Thorndike Director December 21, 1998 - ------------------------- W. Nicholas Thorndike /s/ Donald H. Trautlein Director December 21, 1998 - ----------------------- Donald H. Trautlein /s/ Richard L. Tucker Director December 21, 1998 - --------------------- Richard L. Tucker Pursuant to the requirements of the Securities Act of 1933, the 1998 Employee Stock Option Plan Committee of the Board of Directors of Data General Corporation has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Westboro, Massachusetts on the 21st day of December, 1998. DATA GENERAL CORPORATION 1998 EMPLOYEE STOCK OPTION PLAN By: /s/ Jeffrey M. Cunningham ------------------------- Jeffrey M. Cunningham By: /s/ W. Nicholas Thorndike ------------------------- W. Nicholas Thorndike By: /s/ Donald H. Trautlein ------------------------- Donald H. Trautlein By: /s/ Richard L. Tucker ------------------------- Richard L. Tucker POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Ronald L. Skates and Robert C. McBride, or either of them, his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: Signature Title Date - -------------------------------- ---------------------------- ----------------- /s/ Ronald L. Skates President, Chief December 21, 1998 - -------------------- Executive Officer, Director, Ronald L. Skates (Principle Executive Officer) /s/ John J. Gavin Jr. Vice President, Controller December 21, 1998 - --------------------- and Acting Chief Financial John J. Gavin Jr. Officer /s/ Robert C. McBride Vice President, Treasurer December 21, 1998 - --------------------- and Acting Chief Accounting Robert C. McBride Officer /s/ Ferdinand Colloredo-Mansfeld Director December 21, 1998 - -------------------------------- Ferdinand Colloredo-Mansfeld /s/ Jeffrey M. Cunningham Director December 21, 1998 - ------------------------ Jeffrey M. Cunningham /s/ W. Nicholas Thorndike Director December 21, 1998 - ------------------------- W. Nicholas Thorndike /s/ Donald H. Trautlein Director December 21, 1998 - ----------------------- Donald H. Trautlein /s/ Richard L. Tucker Director December 21, 1998 - --------------------- Richard L. Tucker INDEX TO EXHIBITS Exhibit No. Description 4.1 -- Data General Corporation 1998 Employee Stock Option Plan 4.2 -- Data General Corporation 1998 Non-Employee Director Stock Option Plan 5 -- Opinion of Fulbright & Jaworski L.L.P. 23.1 -- Consent of PricewaterhouseCoopers LLP 23.2 -- Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5). 24 -- Power of Attorney (included in signature page). EX-4.1 2 DGC 1998 EMPLOYEE STOCK OPTION PLAN Exhibit 4.1 DATA GENERAL CORPORATION 1998 EMPLOYEE STOCK OPTION PLAN 1. Purpose The Data General Corporation 1998 Employee Stock Option Plan (the "Plan") is intended to be a broadly-based stock option plan pursuant to which employees of Data General Corporation (the "Company") and its subsidiaries who are making and are expected to continue making substantial contributions to the successful management and growth of the Company and its subsidiaries, may be offered an opportunity to acquire Common Stock, $.01 par value per share (the "Common Stock"), of the Company in order to increase their proprietary interests in the Company and their incentive to remain and advance in the employ of the Company and its subsidiaries. It is also the purpose of the Plan to strengthen the ability of the Company and its subsidiaries to attract and retain personnel of experience and ability by granting such persons an opportunity to acquire a proprietary interest in the Company. 2. Administration of the Plan The Plan shall be administered by a 1998 Employee Stock Option Plan Committee (the "Committee") appointed by the Board of Directors of the Company. The Committee shall consist of two or more "non-employee directors", as that term is defined in Rule 16b-3, as in effect from time to time, under the Securities Exchange Act of 1934, as amended. Subject to the terms and conditions of the Plan, the Committee shall have exclusive authority to select the times when and employees to whom Stock Options may be granted, and to determine the terms and conditions of the option agreements (as hereinafter defined), the number of shares of Common Stock to be acquired by the exercise of Stock Options, the option price (as hereinafter defined) and the term during which the Stock Options may be exercised. The Board of Directors may at any time appoint or remove members of the Committee and may fill vacancies however caused in the Committee. The Committee shall select one of its members as Chairman and shall hold meetings at such times and places as it shall deem advisable. All acts by a majority of the Committee or acts approved in writing by a majority of the Committee shall be valid acts of the Committee. The Committee shall keep records of its meetings and shall make such rules and regulations for the conduct of its business as it shall deem advisable. 3. Interpretation and Amendment The interpretation and construction of any terms or conditions of the Plan or of any option agreement or other matters related to the Plan by the Committee shall be final and conclusive. No member of the Board of Directors or the Committee shall be liable for any action or determination made in good faith with respect to the Plan. The Board of Directors may at any time terminate or from time to time modify or suspend the Plan; provided, however, that no such action shall impair any Stock Option theretofore granted. 4. Participants Stock Options may be granted to employees of the Company or its subsidiaries. No Stock Options shall be granted to an employee who, at the time the Stock Option is granted, owns capital stock having more than ten percent (10%) of the total combined voting power of all classes of capital stock of the Company. The term "employees" shall include consultants to the Company and its subsidiaries. The term "subsidiary" shall mean "subsidiary corporation" as defined in Section 424 of the Code. Subject to the preceding paragraph, receipt of stock options under any other stock option plan maintained by the Company or any subsidiary shall not, for that reason, preclude an employee from receiving Stock Options under the Plan 5. Common Stock Subject to Paragraph 11, no more than an aggregate of 2,500,000 shares of Common Stock may be issued and sold pursuant to the Plan. The shares of Common Stock issued and sold under the Plan may be authorized but unissued shares of Common Stock, or shares of Common Stock acquired by the Company, including shares of Common Stock purchased in the open market. 6. Terms and Conditions of Options Stock Options shall be in such form and on such terms and conditions as the Committee shall from time to time approve, subject to the following terms and conditions: (a) A Stock Option shall state the number of shares of Common Stock to which it relates and no fractional shares of Common Stock shall be issued. (b) The option price per share of Common Stock issuable upon the exercise of a Stock Option shall be determined by the Committee; provided, however, that in no event shall such price be less than the lower of (i) fifty percent (50%) of the book value per share of the Common Stock as of the end of the fiscal year immediately preceding the date of grant or (ii) twenty-five percent (25%) of the fair market value per share of Common Stock on the date of such grant. (c) Notwithstanding any other provisions of the Plan, the term of a Stock Option shall not be more than ten (10) years from the date such option is granted 7. Restrictions on Disposition and Obligation of Resale Shares of Common Stock acquired by an employee pursuant to the exercise of a Stock Option under the Plan shall not be sold, transferred, or otherwise disposed of and shall not be pledged or otherwise hypothecated, except as provided below. (Any such sale, transfer or other disposition, or any pledge or other hypothecation shall hereinafter be referred to as a "disposition.") In the event of the termination of employment for any reason except death or retirement with the consent of the Company, such shares shall, except as provided below, be offered for resale to the Company at their original acquisition price. Shares as to which the restrictions against disposition and the obligation of resale to the Company have lapsed in accordance with the provisions set forth below shall be referred to as "free shares." Shares as to which the restrictions against disposition and the obligation of resale to the Company have not lapsed as provided below shall be referred to as "restricted shares." (a) The restrictions against disposition and the obligation of resale to the Company of shares acquired pursuant to the Plan shall lapse as Board of Directors or the Committee shall determine, and such terms shall be incorporated into and be made a part of the option agreement between the Company and the employee. Any provision for the lapse of the restrictions against disposition and the obligation of resale shall apply with respect to shares subject to an Option whether or not the Option has been exercised in whole or part on the date of lapse. (b) Upon the occurrence of the earlier of the death of the employee, the retirement of the employee with the consent of the Company or the attainment by the employee of the age of 65 whether or not the employee retires, the restrictions against disposition and the obligation of resale to the Company of shares as to which such restrictions and obligation have not otherwise lapsed under the Plan shall immediately lapse. (c) In the event of the termination of employment for any reason except death or retirement with the consent of the Company, shares issued to the employee pursuant to the exercise of an option under the Plan, which shares have not, as of the date of termination of employment, become free shares as defined above, shall become subject to an obligation of immediate resale to the Company. Shares subject to such obligation of resale shall be delivered to the Company within 30 days following the termination of employment. Within 60 days following a timely delivery of shares, the Company will compensate the employee (at the original acquisition price) for such number of shares as the Company elects to purchase and will return to the employee any shares not so purchased. Restricted shares which are not delivered to the Company within 30 days following the termination of employment shall remain subject to the restrictions against disposition and such restrictions shall not lapse as otherwise provided in this Section 7 and in the employee's option agreement. Nothing in this Section 7 shall require the Company to repurchase shares issued to employees under the Plan. (d) Notwithstanding any of the foregoing restrictions, any shares acquired under the Plan may at any time be pledged or otherwise hypothecated to secure borrowing by the employee to obtain the acquisition price to be paid by the employee for such shares; provided, however, that the amount of such borrowing may not exceed the acquisition price of such shares. (e) The provisions of this Section 7 and the provisions of any option agreement between the Company and an employee relating to the restrictions against disposition and the obligation of resale to the Company shall be applied according to their terms or according to such other terms and conditions, or at such times and dates, as the Board of Directors or the Committee may from time to time establish. Any questions as to whether and when there has been a termination of employment, and (subject to Sections 6(b) and 6(c) of the Plan) any questions as to the acquisition price of shares, shall be determined by the Committee and its determination of such questions shall be final. 8. Notice of Election under Section 83(b) Each employee exercising a non-qualified option and making an election under Section 83(b) of the Code and the Regulations and Rulings promulgated thereunder will provide a copy thereof to the Company within 30 days of the filing of such election with the Internal Revenue Service. 9. Termination of Employment If an employee shall cease to be employed by the Company or any subsidiary for any reason other than disability, retirement with the consent of the Company or death, then any Stock Option granted pursuant to the Plan shall terminate immediately If an employee shall cease to be employed by the Company or any subsidiary as the result of his disability, or retirement with the consent of the Company, then any Stock Option that is exercisable by him at the time he ceases to be employed by the Company or its subsidiaries, and only to the extent that such Stock Options are exercisable as of such time, may be exercised by him within twelve (12) months or three (3) months, respectively, after such time. Solely for the purposes of the Stock Option Plan, the transfer of an employee from the employ of the Company to a subsidiary, or vice-versa, or from one subsidiary to another, shall not be deemed a termination of employment. 10. Death If an employee shall die while employed by the Company or any subsidiary, the employee's executor, personal representative or administrator shall have the right to exercise those Stock Options granted to the employee that were exercisable by him at the time of his death at any time within twelve (12) months from the date of his death (or within such shorter period as may be specified by the Company in the option agreement). 11. Changes in Capital Stock Upon any readjustment or recapitalization of the Company's capital stock whereby the character of the Common Stock shall be changed, appropriate adjustments shall be made so that the capital stock to be purchased under the Stock Option Plan after such readjustment or recapitalization shall be the substantial equivalent of the Common Stock. In the event of a subdivision or combination of the shares of Common Stock, the number of shares of Common Stock as to which Stock Options may be granted under the Plan shall be proportionately increased or decreased, respectively, and the Option Price shall be proportionately adjusted by the Board of Directors, and in the case of a reclassification or other change in the shares of the Common Stock such action shall be taken as in the opinion of the Board of Directors shall be appropriate under the circumstances. 12. Transferability Stock Options shall not be assignable or transferable and during an employee's lifetime may be exercised only by him, except by will or the laws of descent and distribution or as the Committee shall determine. 13. Exercise of Options An employee electing to exercise a Stock Option shall give written notice to the Company of such election and of the number of shares of Common Stock that he has elected to acquire. An employee shall have no rights of a stockholder with respect to shares of Common Stock to be acquired by the exercise of a Stock Option until the issuance to him of a certificate representing said shares. 14. Option Agreements Agreements granting Stock Options under the Plan ("Option Agreements") shall be in writing, duly executed and delivered by or on behalf of the Company to the employee and shall contain such terms and conditions as the Committee deems advisable. If there is any conflict between the terms and conditions of any Option Agreement and of the Plan, the terms and conditions of the Plan shall control. 15. Payment The option price shall be payable upon the exercise of the Stock Option and shall be paid in cash, by certified check, by cashier's check or in shares of Common Stock. If shares of Common Stock are tendered as payment of the option price, the value of such shares shall be their fair market value as of the date of exercise. If such tender would result in the issuance of fractional shares of Common Stock, the Company shall require an additional amount which will result in the issuance of another whole share. 16. Term of Plan The Plan shall terminate on November 4, 2008. 17. Continuance of Employment Neither the Plan nor any Option Agreement shall impose any obligation on the Company or any subsidiary to continue to employ any employee. 18. Effectiveness of Plan The Plan shall become effective on the date of its adoption by the Board of Directors. EX-4.2 3 DGC NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN Exhibit 4.2 DATA GENERAL CORPORATION 1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN 1. Purpose The Data General Corporation 1998 Non-Employee Director Stock Option Plan (the "Plan") is intended to strengthen the ability of Data General Corporation (the "Company") to attract and retain the services of knowledgeable and experienced persons who, through their efforts and expertise, can make a significant contribution to the success of the Company's business by serving as members of the Company's Board of Directors and to provide additional incentive for such non-employee directors to continue to work for the best interests of the Company and its stockholders through continuing ownership of its Common Stock, $.01 par value ("Common Stock"). Accordingly, the Company will grant to each non-employee director (the "Optionee") an option (the "Option") to purchase shares of Common Stock of the Company on the terms and conditions hereinafter established. 2. Administration of the Plan The Plan shall be administered by the Board of Directors of the Company. The interpretation and construction by the Committee of any provisions of the Plan or of any agreement or of other matters related to the Plan shall be final. The Board of Directors may from time to time adopt such rules and regulations for carrying out the Plan as it may deem advisable. No member of the Board of Directors shall be liable for any action or determination made in good faith with respect to the Plan. 3. Stock Subject to the Plan The shares to be issued under the Plan shall be made available from shares of Common Stock issued but not outstanding. Shares issued under the Plan shall be subject to the terms, conditions and restrictions specified in the Plan Subject to the provisions of the succeeding paragraphs of this Section 3, the aggregate number of shares which may be issued under the Plan shall not exceed 150,000 shares. If prior to termination of the Plan, shares issued under the Plan shall be reacquired by the Company pursuant to the provisions hereof, such shares shall again become available for issuance under the Plan. In the event that the number of outstanding shares of Common Stock of the Company shall be changed by reason of split-ups, combinations of shares, recapitalizations or stock dividends, the number of shares which may thereafter be available under the Plan, the number of shares held under Option and the option exercise price may be appropriately adjusted as determined by the Board of Directors so as to reflect any such change. 4. Eligibility and Grant of Options Subject to the next sentence, an Option to purchase 7,500 shares of the Company's Common Stock shall automatically be granted under the Plan to each non-employee director of the Company on the date(s) of his election(s) to the Board of Directors. (Notwithstanding the foregoing sentence, during the term of the Company's 1994 Non-Employee Director Stock Option Plan, the number of shares which may be purchased under the aforesaid Option granted under this Plan shall be reduced each year by the number of shares which may be purchased under the option(s) granted each year to such Optionee under the said Company's 1994 Non-Employee Director Stock Option Plan on account of such Optionee's election to the Board of Directors.) Directors who, on the date of their election(s) to the Board, are also officers of the Company are not eligible to receive an Option under the Plan. The exercise price for Options granted under the Plan shall be one hundred (100%) percent of the closing price per share on the New York Stock Exchange of Common Stock on the date of such grant. 5. Non-Transferability of Options The term of the Option shall be for a period of ten years from the date of issuance. The right of the Optionee to purchase Common Stock through the exercise of the Option, wholly or in part, shall be available to the Optionee at any time during the term of the Option subject to the restrictions on disposition and the obligation of resale as provided in Section 7 hereof. The Option shall be exercisable by the Optionee only while serving as a director of the Company or upon his death or cessation of service as a director with the consent of the Company. If the Optionee shall die while serving as a director of the Company, his executor, personal representative or beneficiary shall have the right to exercise the Option at any time within twelve (12) months from the date of death or cessation of service as a director with the consent of the Company in respect of the total number of shares as to which he would be entitled to exercise his Option at the date of his death or cessation of service as a director with the consent of the Company. If the Optionee shall cease to serve as a director with the consent of the Company before the Option shall have terminated, the Optionee may exercise the Option within ninety (90) days after the date on which he ceases to serve as a director of the Company. No Option under the Plan shall be sold, assigned, pledged, encumbered or otherwise transferred by the Optionee. 6. Exercise of Options An Optionee electing to exercise an Option under the Plan shall give written notice to the Company of such election and of the number of shares the Optionee has elected to acquire. Until the Optionee has been issued a certificate or certificates for the shares so acquired, the Optionee shall possess no stockholder rights with respect to any such shares. 7. Restrictions on Disposition and Obligation of Resale Shares of Common Stock acquired by an Optionee pursuant to the exercise of an Option under the Plan shall not be sold, transferred, or otherwise disposed of and shall not be pledged or otherwise hypothecated, except as provided below. (Any such sale, transfer or other disposition, or any pledge or other hypothecation shall hereinafter be referred to as a "disposition.") In the event of the Optionee's cessation of service as a director for any reason except death or with the consent of the Company, such shares shall be offered for resale to the Company at their original acquisition price. Shares as to which the restrictions against disposition and the obligation of resale to the Company have lapsed in accordance with the provisions set forth below shall be referred to as "free shares." Shares as to which the restrictions against disposition and the obligation of resale to the Company have not lapsed as provided below shall be referred to as "restricted shares." The restrictions against disposition and the obligation of resale to the Company of shares acquired pursuant to the Plan shall lapse cumulatively to the extent of twenty-five percent (25%) of the grant on each anniversary date of the date of the Optionee's initial election as a director. Any provision for the lapse of the restrictions against disposition and the obligation of resale shall apply with respect to shares subject to an Option whether or not the Option has been exercised in whole or part on the date of lapse. In the event of a "Change In Control," as defined herein, the restrictions against disposition and the obligations of resale to the Company of shares as to which such restrictions and obligation have not otherwise lapsed under the Plan shall immediately lapse. Upon the occurrence of the earlier of the death of the Optionee, the Optionee's cessation of service as a director with the consent of the Company, the restrictions against disposition and the obligation of resale to the Company of shares as to which such restrictions and obligation have not otherwise lapsed under the Plan shall immediately lapse. In the event of the Optionee's cessation of service as a director for any reason except death or with the consent of the Company, shares issued to the Optionee pursuant to the exercise of an Option under the Plan, which shares have not, as of the date of cessation of service, become free shares as defined above, shall become subject to an obligation of immediate resale to the Company. Shares subject to such obligation of resale shall be delivered to the Company within 30 days following the cessation of service. Within 60 days following a timely delivery of shares, the Company will compensate the Optionee (at the original acquisition price) for such number of shares as the Company elects to purchase and will return to the Optionee any shares not so purchased. Restricted shares which are not delivered to the Company within 30 days following the cessation of service as a director shall remain subject to the restrictions against disposition and such restrictions shall not lapse as otherwise provided in this Section 7. Nothing in this Section 7 shall require the Company to repurchase shares issued to Optionees under the Plan. Notwithstanding any of the foregoing restrictions, any shares acquired under the Plan may at any time be pledged or otherwise hypothecated to secure borrowing by the Optionee to obtain the acquisition price to be paid by the Optionee for such shares; provided, however, that the amount of such borrowing may not exceed the acquisition price of such shares. Any questions as to whether and when there has been a cessation of service, and (subject to Section 4 of the Plan) any questions as to the acquisition price of shares, shall be determined by the Board of Directors and its determination of such questions shall be final. A "Change In Control" of the Company means for purposes of the Plan: (i) the acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of either the then outstanding shares of Common Stock of the Company (the "Outstanding Company Common Stock") or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"), provided, however, that any acquisition by the Company or any of its subsidiaries, or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries, or by any corporation with respect to which, following such acquisition, more than 60% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such acquisition in substantially the same proportion as their ownership, immediately prior to such acquisition, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, shall not constitute a change of control; or (ii) individuals who, as of January 1, 1994 constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director subsequent to January 1, 1994 whose election, or nomination for election, by the Company's stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of the Company (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act); or (iii) approval by the stockholders of the Company of a reorganization, merger or consolidation, in each case, with respect to which all or substantially all of the individuals and entities who were the respective beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such reorganization, merger or consolidation beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such reorganization, merger or consolidation, or of a complete liquidation or dissolution of the Company or of the sale or other disposition of all or substantially all of the assets of the Company. 8. Payment The option exercise price shall be payable upon the exercise of the Option and shall be payable in cash, by cashier's check, by certified check or in shares of Common Stock. If shares of Common Stock are tendered as payment of the option exercise price, the value of such shares shall be their fair market value as of the date of exercise. If such tender would result in the issuance of fractional shares of Common Stock, the Company shall instead return the difference in cash or by check to the Optionee. 9. Notice of Election under Section 83(b) Each Optionee making an election under Section 83(b) of the Internal Revenue Code of 1954, as amended, and the Regulations and Rulings promulgated thereunder will provide a copy thereof to the Company within 30 days of the filing of such election with the Internal Revenue Service. 10. Amendments to the Plan The Board of Directors of the Company may at any time terminate or from time to time modify or suspend the Plan, provided that no such modification without the approval of the stockholders of the Company shall: (a) increase the maximum number of shares which may be issued under the Plan in the aggregate or the number of shares which may be issued to each non-employee director (except as permitted by the last two paragraphs of Section 3); (b) extend the period during which Options may be granted under the Plan; (c) shorten the period over which the restrictions against disposition and the obligation of resale lapse (except as permitted by the fourth paragraph of Section 7); or (d) amend the option exercise price (except as permitted by the last paragraph of Section 3); or 11. Successors and Assigns The provisions of this Plan shall be binding upon all successors and assigns of an Optionee acquiring shares under the Plan, including, without limitation, the estate of any such Optionee and the executors, administrators or trustees of such estate, and any receiver, trustee in bankruptcy or representative of the creditors of any such Optionee. 12. Termination Date of the Plan The Plan shall terminate on November 4, 2008; provided, however, that Options granted on or before such date shall remain exercisable, in accordance with their respective terms, after the termination of the Plan. EX-5 4 OPINION Exhibit 5 Fulbright & Jaworski L.L.P. A Registered Limited Liability Partnership 666 Fifth Avenue New York, New York 10103-3198 HOUSTON telephone: 212/318-3000 WASHINGTON, D.C. facsimile: 212/752-5958 AUSTIN SAN ANTONIO DALLAS NEW YORK LOS ANGELES LONDON HONG KONG December 21, 1998 DATA GENERAL CORPORATION 4400 Computer Drive Westboro, Massachusetts 01580 Dear Ladies and Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), on behalf of Data General Corporation, a Delaware corporation (the "Company"), relating to (i) 2,500,000 shares of the Company's Common Stock, $0.01 par value (the "Common Stock") to be issued under the Data General Corporation 1998 Employee Stock Option Plan and (ii) 150,000 shares of Common Stock to be issued under the Data General Corporation 1998 Non-Employee Director Stock Option Plan (collectively, the "Plans"). As counsel to the Company, we have examined such corporate records, other documents and such questions of law as we have deemed necessary or appropriate for the purposes of this opinion and, upon the basis of such examinations, advise you that in our opinion all necessary corporate proceedings by the Company have been duly taken to authorize the issuance of the Common Stock pursuant to the Plans and the shares of Common Stock being registered pursuant to the Registration Statement, when issued and paid for in accordance with the terms of the Plans, will be duly authorized, validly issued, fully paid and non-assessable. We consent to the filing of this opinion as Exhibit 5 to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Act. Very truly yours, /s/ Fulbright & Jaworski L.L.P. EX-23.1 5 CONSENT OF INDEPENDENT ACCOUNTANTS Exhibit 23.1 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated October 28, 1998, which appears in the 1998 Annual Report to Stockholders of Data General Corporation, which is incorporated by reference in the Annual Report on Form 10-K for the year ended September 26, 1998. We also consent to the incorporation by reference of our report on the Financial Statement Schedules, which appears in such Annual Report on Form 10-K. /s/ PricewaterhouseCoopers LLP Boston, Massachusetts December 21, 1998 -----END PRIVACY-ENHANCED MESSAGE-----