-----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, ETujpXlPyOX16AmwdvnmVMLL4/34ztdijeFyiRQXMhvEqd7YpBOePpKB/C7+0HoU kgwoews1Ker7kfJH6mUw1Q== 0000950172-99-001408.txt : 19991018 0000950172-99-001408.hdr.sgml : 19991018 ACCESSION NUMBER: 0000950172-99-001408 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991014 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMC CORP CENTRAL INDEX KEY: 0000790070 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER STORAGE DEVICES [3572] IRS NUMBER: 042680009 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: SEC FILE NUMBER: 333-86659 FILM NUMBER: 99728521 BUSINESS ADDRESS: STREET 1: 35 PARKWOOD DRIVE CITY: HOPKINTON STATE: MA ZIP: 01748-9103 BUSINESS PHONE: 5084351000 MAIL ADDRESS: STREET 1: 35 PARKWOOD DRIVE CITY: HOPKINTON STATE: MA ZIP: 01748-9103 POS AM 1 FORM S-4 AMENDMENT NO. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1999 REGISTRATION NO. 333-86659 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------------ EMC CORPORATION (Exact name of Registrant as specified in its charter) MASSACHUSETTS 3572 04-2680009 (State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer of Incorporation or Organization) Classification Code Number) Identification No.)
35 PARKWOOD DRIVE HOPKINTON, MASSACHUSETTS 01748 (508) 435-1000 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ------------------------------ PAUL T. DACIER, ESQ. VICE PRESIDENT AND GENERAL COUNSEL EMC CORPORATION 35 PARKWOOD DRIVE HOPKINTON, MASSACHUSETTS 01748 (508) 435-1000 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------------ COPIES TO: MARGARET A. BROWN, ESQ. EDWARD D.HERLIHY, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP WACHTELL, LIPTON, ROSEN & KATZ ONE BEACON STREET 51 WEST 52ND STREET BOSTON, MASSACHUSETTS 02108 NEW YORK, NEW YORK 10019 (617) 573-4800 (212) 403-1000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE AND CERTAIN OTHER CONDITIONS UNDER THE MERGER AGREEMENT ARE MET OR WAIVED. If any of the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: [ ] CALCULATION OF REGISTRATION FEE
=============================================================================================================== AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (2) REGISTRATION FEE (3) - --------------------------------------------------------------------------------------------------------------- Common stock, par value $.01 18,151,403 $18.1875 $330,128,629 $66,026 per share ===============================================================================================================
(1) Based on the estimated maximum number of shares of EMC common stock to be issued in connection with the merger. (2) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(f) of the Securities Act of 1933, as amended, based upon the average of the high and low sale prices of shares of the common stock of Data General Corporation on the New York Stock Exchange on August 31, 1999. (3) Estimated in accordance with Rule 457(c) and (f), solely for the purpose of determining the registration fee. Represents the product of (i) $18.1875, the average of the high and low prices reported on the New York Stock Exchange on August 31, 1999 for Data General common stock, multiplied by (ii) 55,645,010, the maximum number of shares of Data General common stock which will be converted into shares of EMC common stock pursuant to the merger. The entire amount of the registration fee has been offset by amounts previously paid by Data General in connection with the filing of preliminary proxy materials by Data General with the Commission on August 20, 1999 as permitted by Rule 457(b). Accordingly, no additional fee has been paid. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS. Section 67 of Chapter 156B of the Massachusetts General Law authorizes a corporation to indemnify any director, officer, employee or other agent of the corporation to whatever extent specified in or authorized by (i) the articles of organization, (ii) a by-law adopted by the stockholders or (iii) a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors. Article 6(k) of the Registrant's Restated Articles of Association provides as follows: No director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the extent provided by applicable law notwithstanding any provision of law imposing such liability; provided, however, that to the extent, and only to the extent, required by Section 13(b) (1 1/2) or any successor provision of the Massachusetts Business Corporation Law, this provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under sections 61 or 62 of the Massachusetts Business Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. This provision shall not be construed in any way so as to impose or create liability. The foregoing provisions of this Article 6(k) shall not eliminate the liability of a director for any act or omission occurring prior to the date on which this Article 6(k) becomes effective. No amendment to or repeal of this Article 6(k) shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omission of such director occurring prior to such amendment or repeal. In addition, Article Section 7 of the Registrant's Amended and Restated By-Laws, entitled "Indemnification of Directors and Officers," provides as follows: The corporation shall, to the extent legally permissible, indemnify each of its directors and officers (including persons who act at its request as directors, officers or trustees of another organization or in any capacity with respect to any employee benefit plan) against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably incurred by him in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which he may be involved or with which he may be threatened, while in office or thereafter, by reason of his being or having been such a director or officer, except with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation (any person serving another organization in one or more of the indicated capacities at the request of the corporation who shall have acted in good faith in the reasonable belief that his action was in the best interests of such other organization to be deemed as having acted in such manner with respect to the corporation) or, to the extent that such matter related to service with respect to any employee benefit plan, in the best interest of the participants or beneficiaries of such employee benefit plan; provided, however, that as to any matter disposed of by a compromise payment by such director or officer, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless such compromise shall be approved as in the best interests of the corporation, after notice that it involves such indemnification: (a) by a disinterested majority of the directors then in office; or (b) by a majority of the disinterested directors then in office, provided that there has been obtained an opinion in writing of independent legal counsel to the effect that such director or officer appears to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation; or (c) by the holders of a majority of the outstanding stock at the time entitled to vote for directors, voting as a single class, exclusive of any stock owned by any interested director or officer. Expenses, including counsel fees, reasonably incurred by any director or officer in connection with the defense or disposition of any such action, suit or other proceeding may be paid from time to time by the corporation in advance of the final disposition thereof upon receipt of an undertaking by such director or officer to repay the amounts so paid to the corporation if it is ultimately determined that indemnification for such expenses is not authorized under this Section 7. The right of indemnification hereby provided shall not be exclusive of or affect any other rights to which any director or officer may be entitled. As used in this Section, the terms "director" and "officer" include their respective heirs, executors and administrators, and an "interested" director or officer is one against whom in such capacity the proceedings in question or another proceeding on the same or similar grounds is then pending. Nothing contained in this Section shall affect any rights to indemnification to which corporate personnel other than directors or officers may be entitled by contract or otherwise under law. Item 21. Exhibits and Financial Statement Schedules (a) Exhibits EXHIBIT NUMBER DESCRIPTION ------ ------------ 2.1 Agreement and Plan of Merger dated as of August 6, 1999 by and among EMC Corporation ("EMC"), Emerald Merger Corporation and Data General Corporation.(14) 3.1 Articles of Organization of EMC Corporation.(1) 3.2 Articles of Amendment filed February 26, 1986.(1) 3.3 Articles of Amendment filed April 2, 1986.(1) 3.4 Articles of Amendment filed May 13, 1987.(2) 3.5 Articles of Amendment filed June 19, 1992.(3) 3.6 Articles of Amendment filed May 12, 1993.(4) 3.7 Articles of Amendment filed November 12, 1993.(5) 3.8 Articles of Amendment filed May 10, 1995.(6) 3.9 Articles of Amendment filed May 7, 1997.(7) 3.10 Articles of Amendment filed May 13, 1999.(8) 3.11 Amended and Restated By-laws of EMC Corporation.(9) 4.1 Form of Stock Certificate.(10) 4.2 Indenture, dated as of March 11, 1997 between EMC Corporation and State Street Bank and Trust Company, Trustee.(11) 4.3 Form of 3 1/4% Convertible Subordinated Note due 2002.(11) 4.4 Indenture, dated as of May 21, 1997 between Data General Corporation and The Bank of New York.(12) 4.5 Form of 6% Convertible Subordinated Note due 2004.(13) 4.6 First Supplemental Indenture, dated as of October 12, 1999 between Data General Corporation and The Bank of New York.(15) 5.1 Opinion of Paul T. Dacier, Esq., Vice President and General Counsel of EMC, regarding validity of securities being registered.(14) 8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding certain tax matters.(15) 8.2 Opinion of Wachtell, Lipton, Rosen & Katz regarding certain tax matters.(15) 10.1 EMC Corporation 1985 Stock Option Plan, as amended.(9) 10.2 EMC Corporation 1992 Stock Option Plan for Directors, as amended.(9) 10.3 EMC Corporation 1993 Stock Option Plan, as amended.(9) 21.1 Subsidiaries of Registrant.(9) 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included as part of its opinion filed as Exhibit 8.1 and incorporated herein by reference). 23.2 Consent of PricewaterhouseCoopers LLP.(14) 23.3 Consent of Wachtell, Lipton, Rosen & Katz (included as part of its opinion filed as Exhibit 8.2 and incorporated herein by reference). 23.4 Consent of Morgan Stanley & Co. Incorporated (included as part of its opinion filed as Exhibit 99.1 and incorporated herein by reference). 23.5 Consent of Paul T. Dacier, Esq., Vice President and General Counsel of EMC (included as part of his opinion filed as Exhibit 5.1 and incorporated herein by reference). 23.6 Consent of PricewaterhouseCoopers LLP.(14) 24.1 Power of Attorney.(14) 99.1 Opinion of Morgan Stanley, & Co. Incorporated.(14) 99.2 Form of Proxy of Data General Corporation.(14) 1. Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-3656). 2. Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-17218). 3. Incorporated by reference to the Company's Annual Report on Form 10-K filed February 12, 1993. 4. Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-67224). 5. Incorporated by reference to the Company's Current Report on Form 8-K filed November 19, 1993. 6. Incorporated by reference to the Company's Current Report on Form 8-K filed May 26, 1995. 7. Incorporated by reference to the Company's Quarterly Report on Form 10-Q filed May 14, 1997. 8. Incorporated by reference to the Company's Quarterly Report on Form 10-Q filed May 13, 1999. 9. Incorporated by reference to the Company's Annual Report on Form 10-K filed March 11, 1999. 10. Incorporated by reference to the Company's Annual Report on Form 10-K filed March 31, 1988. 11. Incorporated by reference to the Company's Registration Statement on Form S-3 (No. 333-24901). 12. Incorporated by reference to the Registration Statement on Form S-3 of Data General Corporation filed June 27, 1997. 13. Incorporated by reference to the Registration Statement on Form 8-A of Data General Corporation filed March 16, 1998. 14. Previously filed with this Registration Statement on Form S-4 on September 7, 1999. 15. Filed herewith. ITEM 22. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (2) that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form; (3) that every prospectus (i) that is filed pursuant to paragraph (2) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (4) to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form S-4 under the Securities Act of 1933, within one business day of receipt of any such request, and to send the incorporated documents by first class mail or other equally prompt means, including information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to such request; and (5) to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. Insofar as indemnification for liabilities under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 20 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim of indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in a successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hopkinton, Commonwealth of Massachusetts, on October 14, 1999. EMC CORPORATION By: /s/ Michael C. Ruettgers* ------------------------------------- Michael C. Ruettgers President and Chief Executive Officer
SIGNATURE TITLE DATE /s/ Richard J. Egan* Chairman of the Board October 14, 1999 - --------------------- Richard J. Egan /s/ Michael C.Ruettgers* President, Chief Executive Officer October 14, 1999 - --------------------------- and Director Michael C. Ruettgers (Principal Executive Officer) /s/ Colin G. Patteson* Senior Vice President, Chief October 14, 1999 - -------------------------- Colin G. Patteson Administrative Officer and Treasurer (Principal Financial Officer) /s/ William J. Teuber, Jr.* Vice President and Chief Financial October 14, 1999 - ----------------------------- Officer William J. Teuber, Jr. (Principal Accounting Officer) /s/ Michael J.Cronin* Director October 14, 1999 - ----------------------- Michael J. Cronin /s/ John R. Egan* Director October 14, 1999 - ----------------------- John R. Egan /s/ Maureen E. Egan* Director October 14, 1999 - ---------------------- Maureen E. Egan /s/ W. Paul Fitzgerald* Director October 14, 1999 - ------------------------ W. Paul Fitzgerald /s/ Joseph F. Oliveri* Director October 14, 1999 ----------------------- Joseph F. Oliveri * By: /s/ Paul T. Dacier ------------------- Paul T. Dacier Attorney-in-Fact
EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ------ ----------- 2.1 Agreement and Plan of Merger dated as of August 6, 1999 by and among EMC Corporation ("EMC"), Emerald Merger Corporation and Data General Corporation.(14) 3.2 Articles of Amendment filed February 26, 1986.(1) 3.3 Articles of Amendment filed April 2, 1986.(1) 3.4 Articles of Amendment filed May 13, 1987.(2) 3.5 Articles of Amendment filed June 19, 1992.(3) 3.6 Articles of Amendment filed May 12, 1993.(4) 3.7 Articles of Amendment filed November 12, 1993.(5) 3.8 Articles of Amendment filed May 10, 1995.(6) 3.9 Articles of Amendment filed May 7, 1997.(7) 3.10 Articles of Amendment filed May 13, 1999.(8) 3.11 Amended and Restated By-laws of EMC Corporation.(9) 4.1 Form of Stock Certificate.(10) 4.2 Indenture, dated as of March 11, 1997 between EMC Corporation and State Street Bank and Trust Company, Trustee.(11) 4.3 Form of 3 1/4% Convertible Subordinated Note due 2002.(11) 4.4 Indenture, dated as of May 21, 1997 between Data General Corporation and The Bank of New York.(12) 4.5 Form of 6% Convertible Subordinated Note due 2004.(13) 4.6 First Supplemental Indenture, dated as of October 12, 1999 between Data General Corporation and The Bank of New York.(15) 5.1 Opinion of Paul T. Dacier, Esq., Vice President and General Counsel of EMC, regarding validity of securities being registered.(14) 8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding certain tax matters.(15) 8.2 Opinion of Wachtell, Lipton, Rosen & Katz regarding certain tax matters.(15) 10.1 EMC Corporation 1985 Stock Option Plan, as amended.(9) 10.2 EMC) Corporation 1992 Stock Option Plan for Directors, as amended.(9) 10.3 EMC Corporation 1993 Stock Option Plan, as amended.(9) 21.1 Subsidiaries of Registrant.(9) 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included as part of its opinion filed as Exhibit 8.1 and incorporated herein by reference). 23.2 Consent of PricewaterhouseCoopers LLP.(14) 23.3 Consent of Wachtell, Lipton, Rosen & Katz (included as part of its opinion filed as Exhibit 8.2 and incorporated herein by reference). 23..4 Consent of Morgan Stanley & Co. Incorporated (included as part of its opinion filed as Exhibit 99.1 and incorporated herein by reference). 23.5 Consent of Paul T. Dacier, Esq., Vice President and General Counsel of EMC (included as part of his opinion filed as Exhibit 5.1 and incorporated herein by reference). 23.6 Consent of PrincwaterhouseCoopers LLP.(14) 24.1 Power of Attorney (included on the signature page of this Form S-4 and incorporated herein by reference).(14) 99.1 Opinion of Morgan Stanley, & Co. Incorporated.(14) 99.2 Form of Proxy of Data General Corporation.(14) 1. Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-3656). 2. Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-17218). 3. Incorporated by reference to the Company's Annual Report on Form 10-K filed February 12, 1993. 4. Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 33-67224). 5. Incorporated by reference to the Company's Current Report on Form 8-K filed November 19, 1993. 6. Incorporated by reference to the Company's Current Report on Form 8-K filed May 26, 1995. 7. Incorporated by reference to the Company's Quarterly Report on Form 10-Q filed May 14, 1997. 8. Incorporated by reference to the Company's Quarterly Report on Form 10-Q filed May 13, 1999. 9. Incorporated by reference to the Company's Annual Report on Form 10-K filed March 11, 1999. 10. Incorporated by reference to the Company's Annual Report on Form 10-K filed March 31, 1988. 11. Incorporated by reference to the Company's Registration Statement on Form S-3 (No. 333-24901). 12. Incorporated by reference to the Registration Statement on Form S-3 of Data General Corporation filed June 27, 1997. 13. Incorporated by reference to the Registration Statement on Form 8-A of Data General Corporation filed March 16, 1998. 14. Previously filed with this Registration Statement on Form S-4 on September 7, 1999. 15. Filed herewith. EX-4 2 EXHIBIT 4.6 - FIRST SUPPLEMENTAL INDENTURE Exhibit 4.6 FIRST SUPPLEMENTAL INDENTURE FIRST SUPPLEMENTAL INDENTURE, dated as of October 12, 1999, by and between Data General Corporation, a Delaware corporation ("Data General"), and The Bank of New York, as Trustee (the "Trustee"), under the Indenture dated as of May 21, 1997 (the "Indenture"). WHEREAS, the Indenture was authorized, executed and delivered by Data General to provide for the issuance by Data General of Data General's 6% Convertible Subordinated Notes Due 2004 (the "Notes"), and WHEREAS, pursuant to the Agreement and Plan of Merger (the "Merger Agreement") dated as of August 6, 1999 by and among EMC Corporation, a Massachusetts corporation ("the Company"), Emerald Merger Corporation, a Delaware corporation and wholly owned subsidiary of the Company ("Merger Sub"), and Data General, Merger Sub will merge with and into Data General and Data General will survive the merger as a wholly owned subsidiary of the Company; and WHEREAS, Data General hereby requests that the Trustee execute this First Supplemental Indenture. NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that, in consideration of the premises, it is mutually agreed, for the benefit of each other and for the equal and proportionate benefit of all holders from time to time of the Notes, as follows: ARTICLE I SECTION 1.1 DEFINITIONS Terms defined in the Indenture and used without other definition herein have the respective meanings ascribed to them in the Indenture. SECTION 1.2 AMENDMENT TO EXHIBIT A OF THE INDENTURE. The form of Note, as attached as Exhibit A to the Indenture, is hereby amended by deleting the reference to the Conversion Price being $26.194 and revising such amount to be $83.8208. SECTION 1.3 CONVERTIBILITY OF NOTES. The Notes shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash) receivable, upon the merger of Data General with Merger Sub pursuant to which holders of common stock, par value $0.01 per share of Data General, shall be entitled to receive stock, or other assets (including cash) with respect to or in exchange for such common stock, by such holder of a number of shares of such common stock issuable upon conver sion of such Notes immediately prior to such merger. ARTICLE II MISCELLANEOUS SECTION 2.1 SEVERABILITY. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 2.2 GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE. SECTION 2.3 RATIFICATION. This First Supplemental Indenture is a supplement to the Indenture. As supplemented by this First Supplemental Indenture, the Indenture is in all respects ratified, approved and confirmed and the Indenture and this First Supple mental Indenture shall together constitute one and the same instrument. SECTION 2.4 COUNTERPART ORIGINALS. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. SECTION 2.5 THE TRUSTEE. The Trustee shall not be responsible in any matter whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the Recitals contained herein. IN WITNESS WHEREOF, DATA GENERAL CORPORATION has caused this First Supplemental Indenture to be signed in its corporate name and acknowledged by one of its duly authorized officers; and The Bank of New York, as Trustee, has caused this Indenture to be signed and acknowledged by one of its duly authorized signatories as of the day and year first above written. [Signatures on following page] DATA GENERAL CORPORATION By: /s/ Ronald L. Skates ------------------------------ Name: Ronald L. Skates Title: President and CEO and Director THE BANK OF NEW YORK, as Trustee By: /s/ Mary Jane Schmalzel ------------------------------- Name: Mary Jane Schmalzel Title: Vice President EX-8 3 EXHIBIT 8.1 - OPINION Exhibit 8.1 [Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP] October 12, 1999 EMC Corporation 35 Parkwood Drive Hopkinton, MA 01748 Ladies and Gentlemen: We have acted as tax counsel to EMC Corporation ("EMC"), a Massachusetts corporation, in connection with (i) the Merger, as defined and described in the Agreement and Plan of Merger, dated as of August 6, 1999 (the "Merger Agreement"), by and among EMC, Emerald Merger Corporation, a Delaware corporation and a wholly owned subsidiary of EMC ("Merger Sub") and Data General Corporation, a Delaware corporation ("Data General"), and (ii) the preparation and filing of the Registration Statement with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), on September 7, 1999 (the "Registration Statement"), which includes the Proxy Statement/Prospectus of Data General (the "Proxy Statement/Prospectus"). The delivery of this opinion, dated as of October 12, 1999, is a condition of the Merger pursuant to Section 7.1(e) of the Merger Agreement. Unless otherwise indicated, each capitalized term used herein has the meaning ascribed to it in the Merger Agreement. In connection with this opinion, we have examined the Merger Agreement, the Proxy Statement/Prospectus and such other documents and corporate records as we have deemed necessary or appropriate in order to enable us to render the opinion below. For purposes of this opinion, we have assumed (i) the validity and accuracy of the documents and corporate records that we have examined and the facts and representations concerning the Merger that have come to our attention during our engagement, (ii) that the Merger will be consummated in the manner described in the Merger Agreement and the Proxy Statement/Prospectus, (iii) that the representations made to us by EMC and Data General in their respective certificates dated as of the date hereof, and delivered to us for purposes of this opinion, are accurate and complete, (iv) that the Merger will be reported by EMC, Merger Sub and Data General on their respective federal income tax returns in a manner consistent with the opinion set forth below, and (v) that each of the Merger and the Upstream Merger, if it occurs, will qualify as a statutory merger under the applicable laws of the State of Delaware and the Commonwealth of Massachusetts. In rendering our opinion, we have considered the applicable provisions of the Code, Treasury Department regulations promulgated thereunder, pertinent judicial authorities, interpretive rulings of the IRS and such other authorities as we have considered relevant. It should be noted that statutes, regulations, judicial decisions and administrative interpretations are subject to change at any time (possibly with retroactive effect). A change in the authorities or the accuracy or completeness of any of the facts, information, documents, corporate records, covenants, statements, representations or assumptions on which our opinion is based could affect our conclusions. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any changes (including changes that have retroactive effect) (i) in applicable law or (ii) in any fact, information, document, corporate record, covenant, statement, representation or assumption stated herein that becomes untrue or incorrect. Subject to the assumptions set forth above, and the assumptions and qualifications set forth in the discussion in the Proxy Statement/Prospectus under the heading "United States Federal Income Tax Consequences of the Merger" (the "Discussion"), in our opinion the Merger will qualify, either alone or taken together with the Upstream Merger, as a reorganization within the meaning of Section 368(a) of the Code. The opinion set forth above does not address all of the United States federal income tax consequences of the Merger. In addition, we express no opinion as to the United States federal, state, local, foreign or other tax consequences other than as set forth above. Further, there can be no assurances that the opinion expressed herein will be accepted by the Internal Revenue Service (the "IRS") or, if challenged, by a court. This letter is furnished to you for use in connection with the Merger, as described in the Merger Agreement and the Proxy Statement/Prospectus, and is not to be used, circulated, quoted, or otherwise referred to for any other purpose without our express written permission. Very truly yours, /s/ Skadden, Arps, Slate, Meagher & Flom LLP EX-8 4 EXHIBIT 8.2 - OPINION Exhibit 8.2 [Letterhead of Wachtell, Lipton, Rosen & Katz] October 12, 1999 Data General Corporation 4400 Computer Drive Westboro, Massachusetts 01580 Ladies/Gentlemen: We have acted as counsel to Data General Corporation, a Delaware corporation ("Data General"), in connection with the proposed merger (the "Merger") of Emerald Merger Corporation ("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of EMC Corporation, a Massachusetts corporation ("EMC"), with and into Data General upon the terms and conditions set forth in the Agreement and Plan of Merger dated as of August 6, 1999, by and among Data General, EMC, and Merger Sub (the "Merger Agreement") and the subsequent merger (the "Upstream Merger") of Data General with and into EMC pursuant to certain letter agreements between EMC and Data General, dated October 4, 1999 and October 11, 1999 (the "Letter Agreements") and Section 6.7 of the Merger Agreement. At your request, and pursuant to Section 7.1(e) of the Merger Agreement, we are rendering our opinion concerning certain federal income tax consequences of the Merger. Any capitalized term used and not defined herein has the meaning given to it in the Merger Agreement. For purposes of the opinion set forth below, we have relied, with the consent of Data General and the consent of EMC, upon the accuracy and completeness of the statements and representations (which statements and representations we have neither investigated nor verified) contained, respectively, in the certificates of the officers of Data General and EMC dated the date hereof, and have assumed that such certificates will remain complete and accurate at the Effective Time and at the effective time of the Upstream Merger, if it occurs, and that all representations made to the knowledge of any person or entity or with similar qualification are and will be true and correct as if made without such qualification. We have also relied upon the accuracy of the Registration Statement and the Proxy Statement/Prospectus. We have also assumed that (i) the transactions contemplated by the Merger Agreement and the Letter Agreements will be consummated in accordance therewith and, in the case of the transactions contemplated by the Merger Agreement, as described in the Registration Statement and the Proxy Statement/Prospectus (and no terms or conditions therein material to this opinion will be waived), (ii) the Merger will be reported by EMC, Merger Sub and Data General on their respective federal income tax returns in a manner consistent with the opinion set forth below, and (iii) each of the Merger and the Upstream Merger, if it occurs, will qualify as a statutory merger under the applicable laws of the State of Delaware and the Commonwealth of Massachusetts. Based upon and subject to the foregoing, under currently applicable United States federal income tax law, it is our opinion, for United States federal income tax purposes, that the Merger will qualify, either alone or taken together with the Upstream Merger, as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"). We express no opinion as to the United States federal income tax consequences of the Merger to stockholders subject to special treatment under United States federal income tax law (including, for example, foreign persons, financial institutions, dealers in securities or foreign currencies, traders in securities who elect to apply a mark-to-market method of accounting, insurance companies, tax-exempt entities, holders who do not hold their shares as capital assets, holders who acquired their shares pursuant to the exercise of an employee stock option or right or otherwise as compensation, and holders who hold EMC Common Stock or Data General Common Stock as part of a "hedge," "straddle" or "conversion transaction"). In addition, no opinion is expressed with respect to the tax consequences of the Merger under applicable foreign, state or local laws or under any federal tax laws other than those pertaining to the income tax. We are furnishing this opinion to you solely in connection with the Merger and this opinion is not to be relied upon, circulated, quoted or otherwise referred to by any other person or for any other purpose. Very truly yours, /s/ Wachtell, Lipton, Rosen & Katz -----END PRIVACY-ENHANCED MESSAGE-----