EXHIBIT 10.49
PEROT SYSTEMS CORPORATION
2001 LONG TERM INCENTIVE PLAN
OPTION CERTIFICATE
NONSTATUTORY STOCK OPTION AGREEMENT
Awardee: Brian Maloney
ID #:
Grant Date:
Option Shares: 300,000
Exercise Price: Option Price
Vesting Schedule: As set forth in the attached Award Agreement.
Expiration Date: As set forth in the attached Award Agreement.
You have been awarded a Nonstatutory Stock Option ("Option") under Perot Systems
Corporation's 2001 Long-Term Incentive Plan ("Plan"), subject to the terms and
conditions of (i) this Option Certificate and the form of Nonstatutory Stock
Option Agreement in effect on the Grant Date (collectively, the "Award
Agreement"), and (iii) the Plan.
The Plan, and the Prospectus relating to the Plan are available for your review
on the Perot Systems stock department website at
https://train.ps.net/StockAdministration/options and our stock option
administration vendor's website at www.optionslink.com. Perot Systems' filings
with the United States Securities and Exchange Commission are available on the
Company's website at https://train.ps.net/Finance/financialinfo.htm. If you
have difficulty accessing any of these websites or would like to receive (at no
cost) a paper copy of these documents, please contact the Stock Administration
Department at +1 (972) 340-5670 or by e-mail to Stock-Dept@ps.net.
BY EXERCISING OR ATTEMPTING TO EXERCISE THIS OPTION, OR ASSERTING OR ATTEMPTING
TO ASSERT ANY RIGHTS OR PRIVILEGES UNDER THE AWARD AGREEMENT, YOU:
o agree to be bound by the terms of the Award Agreement and the Plan;
o acknowledge receiving an electronic or paper copy of (1) the Plan, (2)
the Prospectus for the Plan, and (3) the Company's most recent Annual
Report on Form 10-K and Quarterly Report on Form 10-Q which have been
filed with the United States Securities and Exchange Commission; and
o consent to receiving delivery of the all required documents and future
communications relating to the Plan or the Award Agreement via TRAIN
or other electronic transmission; and agree to provide Perot Systems
with up-to-date electronic contact information.
If you wish to reject the award of this Option, please contact the Stock
Administration Department within 60 days after the Grant Date.
PEROT SYSTEMS CORPORATION Brian Maloney
By:
------------------------------------- --------------------------------
Ross Perot, Jr.
Chief Executive Officer Date:
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PEROT SYSTEMS CORPORATION
2001 LONG-TERM INCENTIVE PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
1. General.
(a) The terms and conditions set forth below, together with a certificate
issued by the Company ("Option Certificate") setting forth the name of
the person (the "Awardee") to whom the Company has granted an option
to purchase a number of Shares (the "Option"), the number of Shares
that may be purchased (the "Option Shares"), the purchase price at
which such Shares may be purchased (the "Exercise Price"), and the
dates on which such option may be exercised, constitute this
Nonstatutory Stock Option Agreement ("Award Agreement").
(b) The terms and conditions of the Perot Systems Corporation 2001
Long-Term Incentive Plan ("Plan"), except Sections 11, 12 and 13 of
the Plan, are incorporated by reference into this Award Agreement and,
unless provided otherwise in this Award Agreement, will apply to the
Option. Capitalized terms used in this Award Agreement will have the
meanings given such terms in the Plan, unless they are defined
differently in this Award Agreement. The following terms have the
meanings indicated:
(i) "Control Affiliate" of any person or entity is any person or
entity that controls, is controlled by, or is under common
control with, the first such person or entity.
(ii) "Change of Control" means (A) the acquisition, directly or
indirectly, by any "person" or "group" of persons (other than
the Company, any person or entity controlled by the Company, or
a Perot Family Member or a Control Affiliate of any Perot Family
Member, including, with out limitation, HWGA, Ltd., a Texas
limited partnership, its successors or assigns, or any trust
established for the benefit of any Perot Family Member or any
Control Affiliate of any Perot Family Member) of "beneficial
ownership" (as each of those terms is used in Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding voting securities; (B)
the sale, transfer or other disposition of all or substantially
all of the Company's assets or a complete liquidation or
dissolution of the Company; or (C) the combination of the
Company (by merger, share exchange, consolidation, or otherwise)
with another entity and as a result of such combination, less
than 50% of the outstanding securities of the surviving or
resulting entity are owned in the aggregate by the former
shareholders of the Company.
(iii) "Expiration Date" means the earlier of (A) tenth anniversary of
the Grant Date, (B) two years after Awardee's Severance Date (as
such term is defined in the Plan), or (C) any other date on
which the Awardee's Option terminates under the Award Agreement
or Plan.
(iv) "Perot Family Member" means any member of the family of Ross
Perot, an individual resident of Dallas, Texas, and any direct
descendant thereof, or by or through marriage.
(v) "Retirement" means that Executive ceases, and does not
thereafter engage in, or enter into any agreement, arrangement,
or understanding with respect to senior executive level
employment with any employer.
(vi) "Vested Shares" means the Option Shares that are exercisable
under the terms of this Agreement.
2. Grant, Vesting and Exercise of Option.
(a) Awardee is granted an option to purchase from the Company the number
of Shares specified as the "Option Shares" in the Option Certificate
at the purchase price per Share specified as the "Exercise Price" in
the Option Certificate. This Option is not intended to constitute an
"incentive stock option" as that term is used in section 422 of the
Code.
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(b) This Option will become exercisable, if at all, as follows:
(i) Subject to Section 2(b)(iv), 20% of the Option Shares will
become exercisable on each of the first five anniversaries of
the Grant Date that occurs before the Severance Date.
(ii) Notwithstanding the provisions of Section 2(b)(i) and subject to
Section 2(b)(iv), upon the occurrence of a Change of Control
that occurs before the Severance Date, all of the remaining
unvested Option Shares under this Agreement will become
exercisable.
[(iii) Awardee may by written notice to the Company delivered at any
time after March __, 2012, during which Awardee is not in
material breach of any obligation to the Company or its
Affiliates and before the Severance Date, effective immediately
upon delivery of such notice commence Retirement. Upon delivery
of such notice, the Company will cause all of the then unvested
Option Shares to continue to vest according to Section 2(b)(i),
notwithstanding such Retirement, except that such vesting will
cease immediately at the time Awardee's Retirement ceases.]*
(iv) No installment of this Option will become exercisable under this
Section 2(b) after any date, or upon satisfaction of any
condition after any date, after the Awardee's Severance Date,
except as provided in Section 10(b), (c), (d) or (e) of the
Plan.
(c) Awardee may exercise this Option to purchase all or any part of the
Vested Shares at any time on or before the earlier of (i) Expiration
Date, (ii) the date on which the Awardee's Option terminates under
Section 10(b), (c), (d) or (e) of the Plan; or (iii), with respect to
any Option Shares that have become Vested Shares pursuant to Section
2(b)(iii), the time that Awardee enters into any agreement,
arrangement or understanding with respect to, or otherwise commences,
gainful employment or consulting activity of any sort.
(d) To exercise this Option, Awardee (or any other person entitled to
exercise this Option) must deliver to the Company in accordance with
the procedures established by the Administrator from time to time (i)
a written or electronic notice of exercise in the form established by
the Administrator from time to time stating the number of Vested
Shares to be purchased upon exercise of the Option, (ii) full payment
for such Vested Shares (A) in cash, by check or wire transfer in U.S.
Dollars, (B) in the form required by any cashless exercise program
implemented by the Company in connection with the Plan, or (C) in such
other form of consideration approved by the Administrator, and (iii)
full payment for all applicable taxes required to be withheld by the
Company or the Employer in connection with such exercise. The Option
will be deemed to be exercised only upon receipt by the Company of all
the items described in clauses (i), (ii) and (iii) above and Awardee
will bear all risks and all costs and expenses associated with any
delay in delivering these items.
3. Restrictions on Assignment. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, personal
representatives, successors, and assigns. This Option may not be sold,
assigned, given, exchanged, pledged, hypothecated or otherwise transferred
by Awardee except by will or the laws of descent and distribution or with
the written consent (executed in ink on paper) of the Administrator. This
Option may be exercised only by (i) Awardee, (ii) the executor or
administrator of Awardee's estate (or, if Awardee has designated a
beneficiary in accordance with Section 17 of the Plan, such beneficiary)
following his or her death, or (iii) the guardian of Awardee's property if
one is appointed by reason of Awardee's Total Disability. The Company is
not obligated to recognize any exercise of this Option, or any purported
sale, assignment, gift, exchange, pledge, hypothecation or other transfer,
in violation of this Section 3 and, unless it elects to do otherwise, may
treat any such purported exercise, sale, assignment, gift, exchange,
pledge, hypothecation or transfer as null, void, and of no effect.
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* To be included only in options that may vest after the anniversary of the
Employment Date in 2012.
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4. NO GUARANTEE OF CONTINUED EMPLOYMENT. AWARDEE ACKNOWLEDGES AND AGREES THAT
THIS AWARD AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES DO NOT CONSTITUTE
AN EXPRESS OR IMPLIED PROMISE OF CONTINUED EMPLOYMENT BY THE COMPANY OR HIS
OR HER EMPLOYER FOR ANY PERIOD OR AT ALL AND SHALL NOT INTERFERE WITH
AWARDEE'S RIGHT OR THE COMPANY'S OR THE EMPLOYER'S RIGHT TO TERMINATE
AWARDEE'S EMPLOYMENT RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.
AWARDEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION, AND AWARDEE'S
ABILITY TO PURCHASE SHARES, WILL TERMINATE IN ACCORDANCE WITH THE TERMS OF
THIS AWARD AGREEMENT AND THE PLAN IF AWARDEE CEASES TO PROVIDE SERVICES TO
THE COMPANY OR ITS SUBSIDIARIES OR AFFILIATES AS AN EMPLOYEE OR CONSULTANT.
5. Communications.
(a) All communications from Awardee to the Administrator, the Company or
the Employer will be deemed delivered on the day the notice or other
communication is received in tangible written form addressed to the
Stock Administration Department at the Company's corporate
headquarters address. All communications to Awardee from the
Administrator, the Company or the Employer will be deemed delivered on
the day the notice or other communication is (i) personally delivered
to Awardee, (ii) electronically transmitted to Awardee to the last
known electronic transmission address of Awardee, or (iii) placed in
the official government mail of the country of the sender in an
envelope with proper postage paid addressed to the last known address
of that person as reflected in the Company's personnel or stock
records. Either party may at any time change its address for
notification purposes by giving the other written notice of the new
address and the date upon which it will become effective.
(b) CONSENT TO ELECTRONIC DELIVERY OF COMMUNICATIONS, PLAN DOCUMENTS AND
PROSPECTUSES. BY EXERCISING ANY RIGHTS OR PRIVILEGES, OR ATTEMPTING TO
EXERCISE ANY RIGHTS OR PRIVILEGES, UNDER THIS AWARD AGREEMENT, AWARDEE
WILL BE DEEMED TO CONSENT TO RECEIVING COPIES OF ALL COMMUNICATIONS
RELATING TO THE PLAN AND THIS AWARD AGREEMENT BY ELECTRONIC
TRANSMISSION, INCLUDING BUT NOT LIMITED TO THE PROSPECTUS RELATING TO
THE PLAN, ALL PARTICIPATION MATERIALS, AND ALL OTHER DOCUMENTS
REQUIRED TO BE DELIVERED IN CONNECTION WITH THE PLAN. UPON REQUEST,
THE COMPANY WILL PROVIDE ANY SUCH DOCUMENTS TO AWARDEE (AT NO COST) IN
TANGIBLE WRITTEN FORM.
6. Disputes and Governing Law.
(a) This Award Agreement shall be governed by and construed in accordance
with the substantive law of the state of Delaware, without regard to
the choice of law rules in such state. ANY DISPUTE, CONTROVERSY, OR
QUESTION ARISING UNDER, THIS AGREEMENT SHALL BE REFERRED FOR DECISION
BY ARBITRATION IN DALLAS COUNTY, TEXAS BY A NEUTRAL ARBITRATOR
SELECTED BY THE PARTIES HERETO. THE PROCEEDINGS SHALL BE GOVERNED BY
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT OR
SUCH RULES LAST IN EFFECT (IN THE EVENT ASSOCIATION IS NO LONGER IN
EXISTENCE). IF THE PARTIES ARE UNABLE TO AGREE UPON SUCH A NEUTRAL
ARBITRATOR WITHIN THIRTY (30) DAYS AFTER ONE PARTY HAS GIVEN THE OTHER
WRITTEN NOTICE OF THE DESIRE TO SUBMIT THE DISPUTE, CONTROVERSY OR
QUESTION FOR DECISION AS AFORESAID, THEN EITHER PARTY MAY APPLY TO THE
AMERICAN ARBITRATION ASSOCIATION FOR AN APPOINTMENT OF A NEUTRAL
ARBITRATOR OR IF SUCH ASSOCIATION IS NOT THEN IN EXISTENCE OR DOES NOT
ACT IN THE MATTER WITHIN THIRTY (30) DAYS OF APPLICATION, EITHER PARTY
MAY APPLY TO THE COURTS OF THE STATE OF TEXAS FOR AN APPOINTMENT OF A
NEUTRAL ARBITRATOR TO HEAR THE PARTIES AND SETTLE THE DISPUTE,
CONTROVERSY OR QUESTION AND SUCH JUDGE IS HEREBY AUTHORIZED TO MAKE
SUCH APPOINTMENT. THE DECISION OF THE NEUTRAL ARBITRATOR SHALL BE
FINAL, CONCLUSIVE AND BINDING ON ALL INTERESTED PERSONS AND NO ACTION
AT LAW OR EQUITY SHALL BE INSTITUTED OR, IF INSTITUTED, FURTHER
PROSECUTED BY EITHER PARTY OTHER THAN TO ENFORCE THE AWARD OF THE
NEUTRAL ARBITRATOR. THE AWARD OF THE NEUTRAL ARBITRATOR MAY BE ENTERED
IN ANY COURT THAT HAS JURISDICTION. NEITHER PARTY WILL BE LIABLE TO
THE OTHER FOR PUNITIVE DAMAGES FOR ANY SUCH CLAIMS AND EXECUTIVE
HEREBY WAIVES ANY CLAIMS AGAINST COMPANY FOR SUCH DAMAGES. THE PARTIES
AGREE THAT THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD REASONABLE
ATTORNEYS' FEES AND EXPENSES TO THE PREVAILING PARTY IN ANY PROCEEDING
UNDER THIS SECTION 6(a).
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(b) If any legal proceeding is brought to enforce or interpret the terms
of this Agreement, the prevailing party will be entitled to reasonable
attorneys' fees, costs, and necessary disbursements in addition to any
other relief to which that party may be entitled.
(c) If any provision of this Agreement is held invalid or unenforceable
for any reason, the validity and enforceability of all other
provisions of this Agreement will not be affected. The section
headings used herein are for reference and convenience only and do not
affect the interpretation of this Agreement. This Award Agreement
(including the Option Certificate), together with the Plan,
constitutes the entire agreement between the parties with respect to
its subject matter and may be waived or modified only in writing.
7. Non-Competition and Non-Disclosure. Awardee acknowledges that: (i) in the
course and as a result of employment with the Company or the Employer,
Awardee will obtain special training and knowledge and will come in contact
with the Company's or the Employer's current and potential customers, which
training, knowledge, and contacts would provide invaluable benefits to
competitors of the Company and the Employer; (ii) the Company and the
Employer are continuously developing or receiving Confidential Information,
and that during Awardee's employment he or she will receive Confidential
Information from the Company, the Employer, and their respective customers
and suppliers and special training related to the Company's and the
Employer's business methodologies; and (iii) Awardee's employment by the
Employer creates a relationship of trust that extends to all Confidential
Information that becomes known to Awardee. Accordingly, and in
consideration of this Award, Awardee agrees that the Company and the
Employer will be entitled to terminate all rights to exercise the Award and
to exercise the rights specified in Section 8 below if Participant does any
of the following without the prior written consent of the Company or the
Employer:
(a) while employed by the Company or the Employer or within one year
thereafter:
(i) competes with, or engages in any business that is competitive
with, the Company or the Employer within 250 miles of any
location at which Awardee was employed by or provided services
to the Company or the Employer;
(ii) solicits or performs services, as an employee, independent
contractor, or otherwise, for any person (including any
Affiliate or Subsidiary of that person) that is or was a
customer or prospect of the Company or the Employer during the
two years before Awardee's Severance Date if Awardee solicited
business from or performed services for that customer or
prospect while employed by the Company or the Employer; or
(iii) recruits, hires, or helps anyone to recruit or hire anyone who
was an employee of the Company or any Affiliate or Subsidiary of
the Company, or of any of their customers for whom Awardee
performed services or from whom Awardee solicited business,
within the six months before Participant's Severance Date; or
(b) discloses or uses any Confidential Information, except in connection
with the good faith performance of Awardee's duties as an employee or,
solely with respect to the terms of this Agreement or the Plan, to
Awardee's spouse or legal or financial advisors; or fails to take
reasonable precautions against the unauthorized disclosure or use of
Confidential Information; or solicits or induces the unauthorized
disclosure or use of Confidential Information.
If any court of competent jurisdiction finds any provision of this Section
7 to be unreasonable, then that provision shall be considered to be amended
to provide the broadest scope of protection to the Company that such court
would find reasonable and enforceable. For purposes of this Section 7, the
term "Confidential Information" means all written, machine reproducible,
oral and visual data, information and material, including but not limited
to the terms of this Agreement and the Plan, business, financial and
technical information, computer programs, documents and records (including
those that Awardee develops in the scope of his or her employment) that (i)
the Company, its Affiliates and Subsidiaries, or any of their respective
customers or suppliers treats as proprietary or confidential through
markings or otherwise, (ii)
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relates to the Company, its Affiliates and Subsidiaries, or any of their
respective customers or suppliers or any of their business activities,
products or services (including software programs and techniques) and is
competitively sensitive or not generally known in the relevant trade or
industry, or (iii) derives independent economic value from not being
generally known to, and is not readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use.
Confidential Information does not include any information or material that
is approved by the Company or its Affiliates or Subsidiaries for
unrestricted public disclosure.
8. Right to Buy Back Purchased Stock and to Require Payback of Certain
Profits.
(a) If the Administrator (i) discovers that Awardee has engaged in any
conduct prohibited by Section 7 or (ii) determines, in its sole
discretion, that Awardee's employment by the Company or any of its
Affiliates or Subsidiaries terminated or, if the relevant facts been
known at the time, would have been terminated for Substantial
Misconduct, then the Company will have the right for 150 days after
the Administer discovers the relevant facts (A) to cancel any
unexercised Award, whether or not exercisable or vested, (B) to buy
from Awardee, at a purchase price equal to the Exercise Price, any
Shares acquired by exercising this Option that became exercisable on
or after the date two years before the date the Administrator
discovered the relevant facts, and (C) to require Awardee to pay to
the Company the Net Investment Proceeds with respect to any Shares
that have been sold or otherwise transferred by Participant that the
Company has the right to buy pursuant to clause (B) above. For
purposes of this Section 8, "Substantial Misconduct" means termination
of employment for conduct resulting in a felony conviction of Awardee;
actions involving moral turpitude, theft, or dishonesty in a material
matter; breach of any obligation under Section 7 of this Agreement; or
failure by Awardee to carry out the directions, instructions,
policies, rules, regulations, or decisions of the Company's or the
Employer's Board of Directors including, without limitation, those
relating to business ethics and the ethical conduct of the business of
the Company and its Affiliates and Subsidiaries. For purposes of this
Section 8, "Net Investment Proceeds," with respect to any Share sold
or otherwise transferred by Awardee or Awardee's successor in
interest, means the greater of the value of the gross proceeds
received for such share or the Fair Market Value of such Share on the
date of sale or transfer less, in either case, (i) the exercise price
of this Option for such Share plus simple interest on such amount at
the rate of 8% per annum to the date of the sale or transfer, (ii) any
reasonable and customary commission paid for the sale or transfer, and
(iii) the verified amount of any income taxes paid or payable on the
sale or transfer.
(b) The Company may exercise its right by notifying Awardee of its
election to exercise its right within such 150-day period. Awardee
shall tender to the Company, within 10 days, the applicable Shares
together with a duly executed stock power attached in proper form for
transfer and/or a cashiers or certified check in the amount of the Net
Investment Proceeds. If any such Shares or Net Investment Proceeds are
not tendered within 10 days, the Company may cancel any outstanding
certificate representing such Shares. The Company shall tender the
purchase price for tendered Shares within five business days after the
Shares are tendered to the Company or the Company cancels the
applicable certificate, whichever occurs first.
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