Exhibit 2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1, dated as of August 6, 1999 (this "Amendment"), is between
Data General Corporation, a Delaware corporation (the "Corporation"), and The
Bank of New York, as Rights Agent (the "Rights Agent").
Recitals
WHEREAS, the Corporation and the Rights Agent are parties to a Rights Agreement,
dated as of October 3, 1986 (Renewed and Restated as of October 19, 1996)
(the "Rights Agreement"); and
WHEREAS, EMC Corporation, a Massachusetts corporation ("EMC"), and the
Corporation propose to enter into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which the Corporation will merge with Emerald Merger
Corporation, a Delaware corporation and subsidiary of EMC (the "Merger"), and a
related Stock Option Agreement by and between the Corporation, as issuer, and
EMC, as grantee (the "Option Agreement"). The Board of Directors of the
Corporation has approved the Merger Agreement, the Merger and the Option
Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of Directors
of the Corporation has determined that an amendment to the Rights Agreement as
set forth herein is necessary and desirable in connection with the foregoing and
the Corporation and the Rights Agent desire to evidence such amendment in
writing;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, the parties hereto agree as follows:
(a) Amendment of Section 1(a). Section 1(a) of the Rights Agreement is amended
to add the following sentence at the end thereof:
Notwithstanding anything in this Rights Agreement to the contrary, EMC
shall not be deemed to be an Acquiring Person by virtue of (i) the
consummation of the Merger, (ii) the execution and delivery of the
Merger Agreement and the Option Agreement, or (iii) the consummation of
any of the other transactions contemplated in the Merger Agreement and
the Option Agreement.
(b) Amendment of Section 3(a). Section 3 (a) of the Rights Agreement is
amended to add the following sentence at the end thereof:
Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as the result of
(i) the consummation of the Merger, (ii) the execution of the Merger
Agreement and the Option Agreement, or (iii) the consummation of any of
the other transactions contemplated in the Merger Agreement and the
Option Agreement.
(c) Amendment of Section 1(k). Section 1(k) of the Rights Agreement is amended
and restated to read as follows:
(i) "Final Expiration Date" shall mean October 19, 2001.
(ii) "Merger" shall have the meaning set forth in the Merger
Agreement.
(iii) "Merger Agreement" shall mean that certain Agreement and
Plan of Merger, dated as of August 6, 1999, by and among
EMC, Emerald Merger Corporation and the Corporation, as
amended from time to time.
(iv) "Option Agreement" shall mean that certain Stock Option
Agreement, dated as of August 6, 1999, by and between
EMC, as grantee, and the Corporation, as issuer, as
amended from time to time.
(v) "EMC" shall mean EMC Corporation, a Massachusetts
corporation.
(d) Amendment of Section 7(a). Section 7(a) of the Rights Agreement is hereby
amended and restated to state in its entirety as follows:
Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the principal office of the Rights Agent as set
forth in Section 25 hereof, together with payment of the Purchase Price
with respect to each one one-hundredth of a share of Preferred Stock as
to which the Rights are exercised, at or prior to the Close of business
on the earlier of (i) the Final Expiration Date, (ii) the date on which
the Rights are redeemed as provided in Section 23 hereof, or (iii) the
consummation of the Merger (such earlier date being herein referred to
as the "Expiration Date").
(e) Amendment of Section 12. Section 12 of the Rights Agreement is amended to
add the following sentence at the end thereof:
Notwithstanding anything in this Rights Agreement to the contrary, none
of (i) the consummation of the Merger, (ii) the execution of the Merger
Agreement and the Option Agreement, and (iii) the consummation of any
of the other transactions contemplated in the Merger Agreement and the
Option Agreement shall be deemed to be events of the type described in
the first sentence of this Section 12, and shall not cause the Rights
to be adjusted or exercisable in accordance with, or any other action
to be taken or obligation to arise pursuant to, this Section 12.
(f) Effectiveness. This Amendment shall be deemed effective as of the date first
written above, as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
(g) Miscellaneous. This Amendment shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state, except as to the duties and
liabilities of the Rights Agent which shall be governed by and construed in
accordance with the laws of the State of New York. This Amendment may be
executed in any number of counterparts, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
It is the intent of the parties hereto to enforce the remainder of the terms,
provisions, covenants and restrictions to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed, all as of the date and year first above
written.
Attest: DATA GENERAL CORPORATION
By: /s/ James K. Jacobs By: /s/ Robert C. McBride
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Name: James K. Jacobs Name: Robert C. McBride
Title: Assistant Secretary Title: Chief Administrative
Officer, Treasurer and Vice
President
Attest: THE BANK OF NEW YORK,
AS RIGHTS AGENT
By: /s/ Ralph Chianese By: /s/ Eon A. Canzius
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Name: Ralph Chianese Name: Eon A. Canzius
Title: Vice President Title: Assistant Treasurer