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EXHIBIT 10.33
Perot Systems Corporation
1991 Stock Option Plan
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of [__________], is by and between Perot Systems
Corporation ("Perot Systems"), a Delaware corporation, and ("Participant").
WITNESSETH:
WHEREAS, Perot Systems has adopted the Perot Systems Corporation 1991 Stock
Option Plan (the "Plan") to enable employees of Perot Systems and its majority-
owned subsidiaries to acquire shares of Class A common stock, $0.01 par value,
of Perot Systems ("Common Stock") in accordance with the provisions of the
Plan; and
WHEREAS, the Committee of the Board of Directors of Perot Systems appointed to
administer the Plan (the "Committee") has selected Participant to participate
in the Plan and has determined to grant Participant the right and option to
purchase shares of Common Stock in accordance with the terms and conditions of
this Agreement, provided, that if any change is made in the shares of Common
Stock (including, but not limited to, by stock dividend, stock split, or merger
or consolidation, but not including the issuance of additional shares for
consideration), the Board of Directors or the Committee, will make such
adjustments in the number and kind of shares (which may consist of shares of a
surviving corporation to a merger) that may thereafter be optioned and sold
under the Plan and the number and kind of shares (which may consist of shares
of a surviving corporation to a merger) and purchase price per share of shares
subject to outstanding Stock Option Agreements under the Plan as the Board of
Directors or the Committee determines are equitable to preserve the respective
rights of the Participants under the Plan.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
and other terms and conditions set forth in this Agreement, Perot Systems and
Participant agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
have the meanings indicated:
(a) "Company" means Perot Systems and its majority-owned
subsidiaries.
(b) "Confidential Information" means all written,
machine-reproducible, oral and visual data, information and
material, including but not limited to business, financial and
technical information, computer programs, documents and records
(including those that Participant develops in the scope of his or
her employment) that (i) the Company or any of its customers or
suppliers treats as proprietary or confidential through markings
or otherwise, (ii) relates to the Company or any of its 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
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persons who can obtain economic value from its disclosure or use.
Confidential Information does not include any information or
material that is approved by Perot Systems for unrestricted
public disclosure.
(c) "Expiration Date" means the date and time as of which the Option
expires, which is the earlier of (i) the close of business on the
date one year after the entire Option has Vested or (ii) the date
and time as of which all rights to exercise the Option are
terminated under Section 2(d).
(d) "Market Value" of a share of Purchased Stock on a given date
means (i) if the Purchased Stock is Publicly Traded, the closing
sale price for Purchased Stock, as determined in good faith by
the Board of Directors, on such date or, if no closing sale price
is available for such date, on the most recent prior date for
which a closing sale price is available or, if no closing sale
price is available, the closing bid price, as so determined, on
such date or, if no closing bid price is available for such date,
the closing bid price on the most recent prior date for which a
closing bid price is available, or (ii) if the Purchased Stock is
not Publicly Traded, its fair market value, as determined in good
faith by the Board of Directors, as of the most recent Valuation
Date on or before such date.
(e) "Net Investment Proceeds," with respect to any share of Purchased
Stock sold or otherwise transferred by Participant or
Participant's successor in interest, means the greater of the
value of the gross proceeds received for such share or the Market
Value of such share on the date of sale or transfer less, in
either case, (i) the exercise price of the 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.
(f) "Option" means the right and option evidenced by this Agreement.
(g) "Publicly Traded" means Purchased Stock has been listed on a
registered national securities exchange or approved for quotation
in the National Association of Securities Dealers Automated
Quotation ("NASDAQ") system.
(h) "Purchased Stock" means any Common Stock purchased upon the
exercise of this Option, together with any successor security,
property or cash issued or distributed by Perot Systems or any
successor entity, whether by way of merger, consolidation, share
exchange, reorganization, liquidation, recapitalization or
otherwise.
(i) "Termination for Substantial Misconduct" means termination of
employment for a felony conviction of the Participant; actions
involving moral turpitude, theft, or dishonesty in a material
matter; breach of any obligation under Section 5 of this Stock
Option Agreement; or failure by Participant to carry out the
directions, instructions, policies, rules, regulations, or
decisions of the Board of Directors of
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Perot Systems including, without limitation, those relating to
business ethics and the ethical conduct of the business of the
Company.
(j) "Transfer" or "transfer" or derivations thereof includes any
sale, assignment, gift, pledge, encumbrance, hypothecation,
mortgage, exchange or any other disposition.
(k) "Valuation Date" means each June 30 and December 31 of every
year, beginning on January 1, 1991, and any other date as of
which the Board of Directors determines the Market Value of
Purchased Stock.
(l) "Vesting," or "vesting" or derivations thereof with respect to
any Option issued under this Agreement, means receiving the right
to exercise the Option.
(m) "Vesting Period" means the period of time commencing on the date
of this Agreement and ending on the date on which the entire
Option has Vested.
2. Grant of Option; Purchase of Stock.
(a) Subject to the terms, conditions, and restrictions set forth in
the Plan and in this Agreement, Perot Systems hereby grants to
Participant, and Participant hereby accepts from Perot Systems,
the option to purchase from Perot Systems the number of shares of
Common Stock specified on Attachment A hereto, at the purchase
price so specified, which option will Vest in Participant in
accordance with the Vesting Schedule set forth on Attachment A
hereto. The Option shall only continue to Vest only for as long
as Participant is an employee of Company, unless the Committee,
in its sole discretion, agrees in writing otherwise. Participant
will have the right to exercise the Vested Option and purchase
Common Stock after the Option Vests as provided in Section 2(d)
below.
(b) The purchase price of shares as to which the Option is exercised
must be paid to Perot Systems at the time of the exercise either
in cash or in such other consideration as the Committee may
approve having a total fair market value, as determined by the
Committee, equal to the purchase price, or a combination of cash
and such other consideration.
(c) The Committee may elect to assist Participant in satisfying an
obligation to pay or withhold taxes required as a result of the
exercise of this Option by accepting shares of Purchased Stock at
Market Value to satisfy the tax obligation. The shares of
Purchased Stock accepted may be either shares withheld upon the
exercise of this Option or other shares already owned by
Participant. In determining whether to approve acceptance of
Purchased Stock to satisfy such a tax obligation, the Committee
may consider whether the shares proposed to be delivered are
subject to any holding period or other restrictions on transfer
and may waive or arrange for the waiver of any such restrictions.
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(d) The Option is only exercisable as to Vested Options. Once Vested,
the Option may be exercised until the Expiration Date, provided,
however, (i) if the Participant ceases to be an employee for any
reason other than death, the Option may be exercised only for
sixty days after the date of cessation of employment, and in any
case no later than the Expiration Date, and (ii) if the
Participant ceases to be an Employee because of death of the
Participant, the Option may be exercised by the Participant's
estate only for two years after the Participant's Death and in
any case no later than the Expiration Date.
3. Restrictions on Transfer. The following restrictions on transfer apply
unless the Committee otherwise agrees in writing or unless the transfer
is by will or the laws of descent and distribution upon Participant's
death:
(a) The Option may not be sold or otherwise transferred and is
exercisable only by Participant during Participant's lifetime.
(b) One-half of the shares of Purchased Stock purchased on any day
may not be sold or otherwise transferred for two years after
purchase.
(c) Shares of Purchased Stock may not be sold or otherwise
transferred unless the holder has given Perot Systems any notice
required under Section 4(a) and Perot Systems has waived in
writing any right it has to buy back the shares under Section
4(a).
(d) Shares of Purchased Stock may not be sold or otherwise
transferred for six months after the Purchased Stock (or stock of
the same class as the Purchased Stock) is Publicly Traded.
Perot Systems is not obligated to recognize any purported sale or other
transfer of the Option or any Purchased Stock in violation of this
Section 3 and, unless it elects to do otherwise, may treat any such
purported sale or transfer as null, void, and of no effect.
4. Rights to Buy Back Purchased Stock and to Require Payback of Certain
Profits.
(a) At any time before the Purchased Stock is Publicly Traded, if
Participant or any subsequent holder of shares of Purchased Stock
desires or is obligated to sell or otherwise transfer any such
shares (including any distribution to heirs or other
beneficiaries of Participant's estate), the holder is required to
give Perot Systems written notice of the proposed sale or
transfer, including notice of the proposed purchaser or
transferee, and, for a period of 30 days after receipt of such
notice, Perot Systems will have the right to buy back such shares
for cash at a purchase price equal to the price per share paid by
Participant for the shares plus simple interest on such amount at
the rate of 8% per annum from the date of payment by Participant
to the date of tender of payment by Perot Systems is set forth in
Section 4(c) below.
(b) If the Committee discovers that Participant has engaged in any
conduct prohibited by Section 5 or if Participant ceases to be
employed by the Company and the
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Committee, in its sole discretion, determines that Participant's
cessation of employment resulted from a Termination for
Substantial Misconduct or would have resulted in a Termination
for Substantial Misconduct had the relevant facts been known at
the time of Participant's cessation of employment, Perot Systems
will have the right for 150 days after the Committee discovers
the relevant facts to cancel any unexercised Option, whether or
not Vested, and to buy back from Participant any shares of
Purchased Stock then owned by Participant, at a purchase price
equal to the price per share paid by Participant for the shares
plus simple interest on such amount at the rate of 8% per annum
from the date of payment by Participant to the date of tender of
payment by Perot Systems as set forth in Section 4(c) below, and
the right to require Participant to pay back to Perot Systems in
cash the Net Investment Proceeds with respect to any shares of
Purchased Stock that have been sold or otherwise transferred by
Participant.
(c) Whenever Perot Systems has a right to buy back shares of
Purchased Stock or to require Participant to pay back to Perot
Systems Participant's Net Investment Proceeds with respect to any
shares of Purchased Stock under this Section 4, Perot Systems may
exercise its right by notifying Participant or the subsequent
holder of Perot Systems' election to exercise its right within
the designated exercise period. In the case of a buyback under
Section 4(a) or Section 4(b), the giving of such notice will give
rise to an obligation on the part of Participant or the
subsequent holder to tender to Perot Systems, within 10 days, any
previously issued certificate representing shares of Purchased
Stock to be bought back, duly endorsed in blank or having a duly
executed stock power attached in proper form for transfer. If
any such certificate is not tendered within 10 days, Perot
Systems may cancel any outstanding certificate representing
shares to be bought back. Perot Systems is required to tender
the purchase price for shares to be bought back under this
Section 4 within 20 days of giving notice of its election to
exercise its right to buy back shares. If the person from whom
the shares are to be bought back has not complied with an
obligation to return a certificate representing shares to be
bought back, however, Perot Systems is not required to tender the
purchase price until 20 days after the certificate is returned or
20 days after it cancels the certificate, whichever occurs first.
5. Competition and Non-Disclosure. Participant acknowledges that: (i) in
the course and as a result of employment with the Company, Participant
will obtain special training and knowledge and will come in contact with
the Company's current and potential customers, which training,
knowledge, and contacts would provide invaluable benefits to competitors
of the Company; (ii) the Company is continuously developing or receiving
Confidential Information, and that during Participant's employment he or
she will receive Confidential Information from the Company, its
customers and suppliers and special training related to the Company's
business methodologies; and (iii) Participant's employment by Company
creates a relationship of trust that extends to all Confidential
Information that becomes known to Participant. Accordingly, and in
consideration of Perot Systems' granting this Option to Participant,
Participant agrees that Perot Systems will be entitled to terminate all
rights to exercise the Option and to exercise the rights specified in
Section 4 above if Participant does any of the following without the
prior written consent of the Company:
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(a) while employed by the Company or within one year thereafter:
(i) competes with, or engages in any business that is
competitive with, the Company within 250 miles of any
location at which Participant was employed by or provided
services to the Company;
(ii) solicits or performs services, as an employee, independent
contractor, or otherwise, for any person (including any
affiliates or subsidiaries of that person) that is or was
a customer or prospect of the Company during the two years
before Participant's employment with the Company ended if
Participant solicited business from or performed services
for that customer or prospect while employed by Company or
(iii) recruits, hires, or helps anyone to recruit or hire anyone
who was an employee of Perot Systems, or of any of its
customers for whom Participant performed services of from
whom Participant solicited business, within the six months
before Participant's employment with the Company ended; or
(b) discloses or uses any Confidential Information, except in
connection with the good faith performance of Participant's
duties as an employee; or fails to take reasonable precautions
against the unauthorized disclosure or use of Confidential
Information; or fails, upon Perot Systems' request, to execute
and comply with a third party's agreement to protect its
confidential and proprietary 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 5 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.
6. Compliance with Securities Laws. Participant hereby agrees that, upon
demand by Perot Systems, any person exercising this Option, at the time
of such exercise, will deliver to Perot Systems a written representation
to the effect that the shares of Purchased Stock being acquired are
being acquired for investment and not with a view to any resale or
distribution thereof. Participant further agrees that neither
Participant nor any successor in interest of Participant will sell or
otherwise transfer the Option or any shares of Purchased Stock in any
way that might result in a violation of any federal or state securities
laws or regulations. Participant further acknowledges and agrees that
Perot Systems may require Participant or any subsequent holder of the
Option or of any shares of Purchased Stock to provide Perot Systems,
prior to any sale or other transfer, with such other representations,
commitments, and opinions regarding compliance with applicable
securities laws and regulations as Perot Systems may deem necessary or
advisable.
7. Stock Certificates; Rights as Shareholder. Perot Systems will retain
for safekeeping all certificates representing shares of Purchased Stock.
Each such certificate will bear such legends as the Committee determines
are necessary or appropriate. Whether or not
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certificates representing shares of Purchased Stock have been issued or
delivered, Participant will have all the rights of a shareholder of
Purchased Stock, including voting, dividend and distribution rights,
with respect to shares of Purchased Stock owned by Participant.
Participant will not have any rights as a shareholder with respect to
any shares of Purchased Stock subject to the Option before the date of
issuance to Participant of shares upon exercise of the Option.
8. Income Tax Withholding. Participant shall, upon request by the Company,
reimburse the Company for, or the Company may withhold from sums or
property otherwise due or payable to Participant, any amounts the
Company is required to remit to applicable taxing authorities as income
tax withholding with respect to the Option or any Purchased Stock. If
shares of Purchased Stock are withheld for such purpose, they will be
withheld at Market Value. If Participant fails to reimburse the Company
for any such amount when requested, the Company has the right to recover
that amount by selling or canceling sufficient shares of any Purchased
Stock held by Participant.
9. Compliance with Plan. Participant acknowledges receipt of a copy of the
Plan and further acknowledges that this Agreement is entered into, and
the Option is granted, pursuant to the Plan. If the provisions of the
Plan are inconsistent with the provisions of this Agreement, the
provisions of the Plan supersede the provisions of this Agreement.
10. Notices. Any notice to Perot Systems or the Company that is required or
permitted by this Agreement shall be addressed to the attention of the
Secretary of Perot Systems at its principal office. Any notice to
Participant that is required or permitted by this Agreement shall be
addressed to Participant at the most recent address for Participant
reflected in the appropriate records of the Company. 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. Whenever this Agreement requires or permits any
notice from one party to another, the notice must be in writing to be
effective and, if mailed, shall be deemed to have been given on the
third business day after the same is enclosed in an envelope, addressed
to the party to be notified at the appropriate address, property
stamped, sealed, and deposited in the United States mail, and, if mailed
to the Company, by certified mail, return receipt requested.
11. Remedies. Perot Systems is entitled, in addition to any other remedies
it may have at law or in equity, to temporary and permanent injunctive
and otherwise equitable relief to enforce the provisions of this
Agreement. Any action to enforce the provisions of, or other relating
to, this Agreement may be brought in the state or federal courts having
jurisdiction in Dallas, Dallas County, Texas. By signing this
Agreement, Participant consents to the personal jurisdiction of such
courts in any such action.
12. 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. However, Participant does not
have the power or right to assign this Agreement without the prior
written consent of Perot Systems.
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13. Attorneys' Fees. 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.
14. Severability. 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.
15. Headings. The section headings used herein are for reference and
convenience only and do not affect the interpretation of this Agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Texas, without regard to the
choice of law rules in such law.
17. Entire Agreement. This Agreement, together with the Plan and any
procedure adopted by the Committee thereunder, constitutes the entire
agreement between the parties with respect to its subject matter and may
be waived or modified only in writing.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Participant and a
duly-authorized representative of Perot Systems have executed this Agreement as
of the date first above written.
PARTICIPANT PEROT SYSTEMS CORPORATION
By:
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Signature Title: Chairman of the Board
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Printed Name
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