As filed with the Securities and Exchange Commission on April 24, 1998
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
--------------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
Electronic Data Systems Corporation
(Exact name of registrant as specified in its charter)
Delaware 75-2548221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5400 Legacy Drive
Plano, Texas 75024-3105
(972) 604-6000
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
--------------------------
D. Gilbert Friedlander, Esq.
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, Texas 75024-3105
(972) 604-6000
(Name, address, including
zip code and
telephone number,
including area
code, of agent for
service)
--------------------------
Copies to:
James E. O'Bannon, Esq. Storrow M. Gordon, Esq.
Jones, Day, Reavis & Pogue Electronic Data Systems Corporation
2300 Trammell Crow Center 5400 Legacy Drive
2001 Ross Avenue Plano, TX 75024-3199
Dallas, TX 75201-2958
--------------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [__]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Aggregate Amount of
Securities to be Registered be Registered (2) Per Share (3) Offering Price (3) Registration Fee (2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share (1) 29,500,000 shares $41.00 $1,209,500,000 $356,802.50
===========================================================================================================================
</TABLE>
(1) There are also being registered hereunder an equal number of Series A Junior
Participating Preferred Stock purchase rights, which are currently attached
to and transferable only with the shares of Common Stock registered hereby.
(2) In accordance with Rule 429(a), the Prospectus included in this Registration
Statement also relates to 11,500,000 shares of Common Stock covered by the
Registrant's Registration Statement on Form S-3 (File No. 333-06655). Such
shares are being carried forward from such earlier Registration Statement in
accordance with Rule 429(b). A filing fee of $213,892.07 associated with
such shares was previously paid with such earlier Registration Statement.
(3) Estimated in accordance with Rule 457(c) solely for the purpose of
determining the registration fee, on the basis of the average of the high
and low sales prices reported on the New York Stock Exchange Composite Tape
on April 24, 1998 for Common Stock of Electronic Data Systems Corporation.
--------------------------
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.
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, APRIL 24, 1998
PROSPECTUS
[GRAPHIC OMITTED - EDS LOGO]
40,000,000 Shares
Electronic Data Systems Corporation
Common Stock
The 40,000,000 shares (the "Shares") of Common Stock, par value $0.01 per
share ("Common Stock"), of Electronic Data Systems Corporation, a Delaware
corporation (together with its subsidiaries and predecessors, "EDS"), offered
hereby may be offered for sale from time to time by and for the account of the
General Motors Special Hourly Employees Pension Trust (together with any
sub-trusts thereunder, the "Hourly Plan Special Trust" or the "Selling
Stockholder") under the General Motors Hourly-Rate Employees Pension Plan (the
"Hourly Plan"). See "Selling Stockholder."
EDS will not receive any of the proceeds from the sale of the Shares by the
Selling Stockholder. EDS will bear the costs of registering the Shares under the
Securities Act, including the registration fee under the Securities Act of 1933,
as amended (the "Securities Act"), certain legal and accounting fees and any
printing fees. The Selling Stockholder will bear all other expenses in
connection with this offering, including any underwriting discounts and
commissions, brokerage fees and the fees and disbursements of counsel
representing the Selling Stockholder. See "Selling Stockholder" and "Plan of
Distribution."
The Common Stock is listed in the United States on the New York Stock
Exchange (the "NYSE") under the symbol "EDS." The last reported sale price of
the Common Stock on the NYSE on April 24, 1998 was $40.9375 per share.
United States Trust Company of New York is the trustee for the Hourly Plan
Special Trust and U.S. Trust Company of California, N.A., an affiliate of United
States Trust Company of New York, is the trustee for a sub-trust under the
Hourly Plan Special Trust (together, the "Hourly Plan Trustee").
The Selling Stockholder from time to time may offer and sell Shares (i) to
underwriters who will acquire Shares for their own account and resell them in
one or more transactions at fixed prices or at varying prices determined at time
of sale, (ii) in block transactions in which the broker or dealer engaged will
attempt to sell the Shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction, (iii) to a broker or dealer as
principal, which may resell Shares for its own account, and (iv) through
"brokers' transactions" (within the meaning of Section 4(4) of the Securities
Act ). To the extent required, the names of any underwriter, broker or dealer
and applicable commissions or discounts and any other required information with
respect to any particular transaction will be set forth in an accompanying
Prospectus Supplement. See "Plan of Distribution." Any statement contained in
this Prospectus will be deemed to be modified or superseded by any inconsistent
statement contained in any Prospectus Supplement delivered herewith. The Selling
Stockholder reserves the sole right to accept or reject, in whole or in part,
any proposed purchase of the Shares to be made in the manner set forth above.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS _________, 1998
<PAGE>
AVAILABLE INFORMATION
EDS is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by EDS with the Commission can be inspected, and copies may be
obtained, at the Public Reference Section of the Commission, Judiciary Plaza,
450 Fifth Street N.W., Washington D.C. 20549, at prescribed rates, as well as at
the following Regional Offices of the Commission: Seven World Trade Center, New
York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Such reports, proxy statements and other
information may also be obtained from the web site that the Commission maintains
at http://www.sec.gov. Reports, proxy statements and other information
concerning EDS can also be inspected at the offices of the New York Stock
Exchange, Inc. (the "NYSE"), 20 Broad Street, New York, New York 10005, where
the Common Stock is listed.
Reports, proxy statements, and other information concerning EDS can also be
obtained electronically through a variety of databases, including, among others,
the Commission's Electronic Data Gathering, Analysis And Retrieval ("EDGAR")
System.
EDS has filed with the Commission a Registration Statement on Form S-3 (as
amended and including exhibits, the "Registration Statement") under the
Securities Act covering the resale of the shares of Common Stock offered hereby.
Pursuant to the rules and regulations of the Commission, this Prospectus omits
certain information contained in the Registration Statement. Such information
can be inspected at and obtained from the Commission and the NYSE in the manner
set forth above. For further information pertaining to EDS and the Common Stock,
reference is hereby made to the Registration Statement. Statements contained
herein concerning any document filed as an exhibit to the Registration Statement
are not necessarily complete and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement. Each
such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents or, where so stated, portions thereof, which have
been filed by EDS with the Commission, are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
1997; and
2. The section entitled "Description of Registrant's Securities to
be Registered" contained in the Registration Statement on Form 8-A
dated May 29, 1996.
In addition, all documents filed by EDS with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering made hereunder shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
EDS will provide without charge to each person, including any beneficial
owner, to whom this Prospectus is delivered, upon the written or oral request of
such person, a copy of any and all of the documents which have been or may be
incorporated by reference in this Prospectus, other than exhibits to such
documents not specifically described above. Requests for such documents should
be directed to Electronic Data Systems Corporation, Investor Relations, Mail
Stop H1-2D-05, 5400 Legacy Drive, Plano, Texas, 75024-3199 (Telephone Number:
(972) 604-6000).
2
<PAGE>
THE COMPANY
EDS is a professional services firm that applies consulting,
information and technical expertise to enhance clients' business performance.
EDS offers its clients a portfolio of related services worldwide within the
broad categories of systems and technology services, business process
management, management consulting and electronic business. EDS provides clients
access to a wide range of value-added offerings within each of the four
categories. Services include the management of computers, networks, information
systems, information processing facilities, business operations and related
personnel. The following is a description of EDS' principal service offerings:
Systems and Technology Services. EDS' traditional outsourcing business
encompasses systems development, systems integration and systems
management. Also included in this area are desktop services, Year 2000
conversions and enterprise software solutions.
Business Process Management. EDS may manage an entire business
function within the client's enterprise, including such activities as
remittance processing, procurement logistics, enterprise customer
management, customer service and training, as well as information
technology operations.
Management Consulting. A.T. Kearney, an EDS subsidiary, provides
clients with high value-added strategy, operations and information
technology capabilities combined with implementation skills that
improve overall business performance and competitive positioning.
Services in this area focus on strategic consulting, including customer
equity management, new market entry and shareholder value creation;
operations consulting, encompassing strategic sourcing, supply chain
management and manufacturing; and technology consulting, including
systems planning, new technology applications and advanced
applications.
Electronic Markets. EDS' offerings in this area include interactive
marketing and payment services, internet and online services and
advertising, electronic commerce, EDI (electronic data interchange),
smart cards, multimedia and home shopping, and the design, development,
implementation and operation of internet websites, corporate intranets
and extranets.
As of December 31, 1997, EDS employed approximately 110,000 persons and
served clients in the United States and 43 other countries.
EDS is incorporated under the laws of the State of Delaware. EDS'
principal executive offices are located at 5400 Legacy Drive, Plano, Texas
75024, telephone number: (972) 604-6000.
USE OF PROCEEDS
EDS will not receive any of the proceeds of the sale of any of the Shares
offered hereby. All of such proceeds will be for the account of the Selling
Stockholder and for the benefit of participants in the Hourly Plan.
3
<PAGE>
BACKGROUND OF THE OFFERING
On March 13, 1995, General Motors Corporation ("GM") contributed
approximately 173 million shares of Class E Common Stock of GM (the "Class E
Common Stock") to the Hourly Plan. Such shares, together with an approximately
16.9 million additional shares of Class E Common Stock then held by the Hourly
Plan, became subject to the restrictions on transfer in and other terms of the
Registration Rights Agreement dated March 12, 1995 between GM and United States
Trust Company of New York, as Trustee of the Hourly Plan Special Trust
(including the exhibits thereto, the "Registration Rights Agreement"). Pursuant
to the split-off of EDS from GM on June 7, 1996 (the "Split-Off"), each share of
Class E Common Stock was converted into one share of Common Stock. At the time
of the Split-Off, EDS succeeded to all of the rights and obligations of GM under
the Registration Rights Agreement (with the exception of certain indemnification
provisions relating to prior offerings under the Registration Rights Agreement)
and all of the provisions of the Registration Rights Agreement applicable to the
Class E Common Stock held by the GM Hourly Plan Special Trust became applicable
to the Common Stock into which such Class E Common Stock was converted. Since
March 1995, the Hourly Plan Special Trust has sold, in the aggregate, 63,550,000
shares of Common Stock in underwritten public offerings (including 40,550,000
shares of Class E Common Stock sold in an underwritten public offering prior to
the Split-Off).
Under the Registration Rights Agreement, the Hourly Plan Special Trust may
only transfer such shares of Common Stock in certain types of transactions and
under certain circumstances, including "demand transfers" (which are defined
under the Registration Rights Agreement to include public offerings and
negotiated transactions, whether registered or not) and certain transfers to
employee benefit plans maintained by EDS and its subsidiaries. The Registration
Rights Agreement provides that any underwritten public offering to be effected
thereunder by the Hourly Plan Special Trust must be reasonably designed to
achieve a broad public distribution of the securities being offered. Subject to
certain limitations, EDS may postpone the filing or effectiveness of any
registration statement requested by the Hourly Plan Special Trust or the making
of any demand transfer at any time EDS determines that such action would
interfere with any proposal or plan by EDS to engage in any material
acquisition, merger, tender offer, securities offering or other material
transaction or would require EDS to make a public disclosure of previously
non-public material information. The Registration Rights Agreement prohibits the
Hourly Plan Special Trust from making a negotiated transfer (i) of more than 2%
of the shares of Common Stock then outstanding to any person and (ii) to any
person who is then required to file or has filed a Schedule 13D under the
Exchange Act with respect to the Common Stock. The Hourly Plan Special Trust is
permitted two demand transfers in any twelve-month period. Restrictions on the
Hourly Plan Special Trust's transfer of shares of Common Stock under the
Registration Rights Agreement will terminate when the Hourly Plan Special Trust
owns less than 2% of the shares of Common Stock then outstanding. The
Registration Rights Agreement also imposes certain restrictions on the ability
of the Hourly Plan Special Trust to tender its shares of Common Stock in a
third-party tender offer until such Trust owns 7.5% or less of the Common Stock
on a fully diluted basis (after which time it may freely tender into any tender
offer for Common Stock).
Pursuant to the Registration Rights Agreement, the Hourly Plan Special
Trust has the right to require that EDS file a registration statement which
would permit sales of shares of Common Stock from time to time pursuant to Rule
415 under the Securities Act on or after March 12, 1999, the fourth anniversary
of the date of the contribution of the Class E Common Stock to the Hourly Plan.
Pursuant to an agreement between EDS and United States Trust Company, as Trustee
of the Hourly Plan Special Trust, EDS and the Hourly Plan Special Trust agreed
to file this Registration Statement pursuant to the terms and conditions of the
Registration Rights Agreement.
4
<PAGE>
SELLING STOCKHOLDER
The Hourly Plan Special Trust is the owner of all of the Shares offered
hereby. The Investment Funds Committee of GM's Board of Directors is the named
fiduciary of the Hourly Plan pursuant to the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and a portion of
the assets of the Hourly Plan (not including the shares of Common Stock owned by
the Hourly Plan Special Trust) is subject to management by or under the
supervision of General Motors Investment Management Corporation, a wholly-owned
subsidiary of GM.
Prior to GM's contribution of approximately 173 million shares of Class E
Common Stock to the Hourly Plan Special Trust as described under "Background of
the Offering," the Hourly Plan Trustee was appointed to have ongoing
responsibility, as a fiduciary within the meaning of ERISA, to manage the shares
of Class E Common Stock owned by the Hourly Plan Special Trust. The Hourly Plan
Trustee retained Wasserstein Perella & Co., Inc. (the "Financial Advisor") to
serve as its investment advisor regarding the management and disposition of such
shares of Class E Common Stock, and as of the date of this Prospectus, the
Financial Advisor continues to serve in such capacity after the Split-Off with
respect to the Common Stock.
The Hourly Plan Trustee has responsibility to manage prudently the shares
of Common Stock held by the Hourly Plan Special Trust in a manner consistent
with maximizing the value of its investment in Common Stock and in accordance
with its determination of the extent to which it may prudently continue to hold
such shares consistent with the diversification and related fiduciary
requirements of ERISA. In accordance with the foregoing and in a manner
consistent with the limitations and terms of the Registration Rights Agreement,
the Hourly Plan Trustee has the authority and discretion to cause the Hourly
Plan Trust to hold such shares or sell all or any portion thereof from time to
time as it may deem appropriate, and to direct the voting of and the exercise of
all other rights relating to such shares. The Hourly Plan Trustee intends to
manage the disposition of such shares in a manner consistent with maintaining an
orderly market for the Common Stock. The compensation of the Hourly Plan Trustee
and the Financial Advisor is not contingent in any way on the sale or continued
holding of shares of Common Stock by the Hourly Plan Special Trust.
On April 24, 1998, the Hourly Plan Special Trust beneficially owned
approximately 126.5 million shares of Common Stock, representing approximately
25.7% of the Common Stock outstanding.
PLAN OF DISTRIBUTION
The Selling Stockholder may offer Shares from time to time depending on
market conditions and other factors, in one or more transactions on the NYSE or
any other national securities exchange or automated interdealer quotation system
on which shares of Common Stock are then listed, through negotiated transactions
or otherwise. The Shares will be sold at prices and on terms then prevailing, at
prices related to the then current market price or at negotiated prices. Subject
to the terms of the Registration Rights Agreement, the Shares may be offered in
any manner permitted by law, including through underwriters, brokers, dealers or
agents, and directly to one or more purchasers. Sales of Shares may involve (i)
sales to underwriters who will acquire Shares for their own account and resell
them in one or more transactions at fixed prices or at varying prices determined
at time of sale, (ii) block transactions in which the broker or dealer so
engaged will attempt to sell the Shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction, (iii) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account and (iv) ordinary brokerage transactions and transactions in which a
broker solicits purchasers. Brokers and dealers may receive compensation in the
form of underwriting discounts, concessions or commissions from the Selling
Stockholder and/or purchasers of Shares for whom they may act as agent (which
compensation may be in excess of customary commissions). The Selling Stockholder
and any broker or dealer that participates in the distribution of Shares
positioned by a broker or dealer may be deemed to be an underwriter within the
meaning of the Securities Act, in which event brokerage commissions or discounts
may be deemed to be underwriting discounts and commissions under the Securities
Act. Upon EDS being notified by
5
<PAGE>
the Selling Stockholder that a material arrangement has been entered into with
an underwriter, broker or dealer for the sale of the Shares, a Prospectus
Supplement will be filed, if required, pursuant to Rule 424(c) under the
Exchange Act disclosing the number of Shares being offered and the terms of the
offering, including the name of each underwriter, broker or dealer, any
discounts, commissions and other items constituting compensation to
underwriters, brokers or dealers, the public offering price and any discounts,
commissions or concessions allowed or reallowed or paid by underwriters to
dealers, and any other facts material to the transaction. As of the date of this
Prospectus, there are no selling arrangements between the Selling Stockholder
and any underwriter, broker or dealer.
EDS will not receive any of the proceeds from the sale of the Shares by
the Selling Stockholder. EDS will bear the costs of registering the Shares under
the Securities Act, including the registration fee under the Securities Act,
certain legal and accounting fees and any printing fees. The Selling Stockholder
will bear all other expenses in connection with this offering, including any
underwriting discounts and commissions, brokerage fees and the fees and
disbursements of counsel representing the Selling Stockholder.
Pursuant to the terms of the Registration Rights Agreement, EDS and the
Selling Stockholder have agreed to indemnify each other and certain other
related parties for certain liabilities in connection with the registration of
the Shares.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for EDS by D. Gilbert Friedlander, General Counsel of EDS. Mr. Friedlander
is the beneficial owner of shares of Common Stock.
EXPERTS
The consolidated financial statements and financial statement schedule of
EDS as of December 31, 1997 and 1996 and for each of the years in the three-year
period ended December 31, 1997 included in EDS' Annual Report on Form 10-K for
the fiscal year ended December 31, 1997 incorporated herein by reference have
been audited by KPMG Peat Marwick LLP, independent auditors, as stated in their
reports appearing therein, and have been so included in reliance upon such
reports given upon the authority of that firm as experts in accounting and
auditing.
6
<PAGE>
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- --------------------------------------------------------------------------------
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus, in connection with the offer
contained in this Prospectus. If given or made, such information or
representations must not be relied upon as having been authorized by EDS or the
Selling Stockholder. This Prospectus shall not constitute an offer to sell, or a
solicitation of an offer to buy, any of the securities offered hereby in any
jurisdiction where, or to any person to whom, it is unlawful to make such offer
or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information set forth in this Prospectus is correct as of any time subsequent to
the date hereof.
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- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Prospectus
Available Information............................ 2
Incorporation of Certain Documents by Reference.. 2
The Company ..................................... 3
Use of Proceeds.................................. 3
Background of Offering........................... 4
Selling Stockholder.............................. 5
Plan of Distribution............................. 5
Legal Matters.................................... 6
Experts.......................................... 6
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
40,000,000 Shares
Electronic Data
Systems Corporation
Common Stock
[GRAPHIC OMITTED - EDS LOGO]
-------------------
P R O S P E C T U S
-------------------
_________, 1998
- --------------------------------------------------------------------------------
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following are the estimated expenses of the issuance and distribution
of the securities being registered, all of which are payable by EDS.
Securities and Exchange Commission registration fee......... $356,802.50
Accounting fees and expenses................................ 3,000.00
Blue Sky fees and expenses.................................. 3,000.00
Counsel fees................................................ 5,000.00
Miscellaneous............................................... 5,000.00
----------
Total.................................................... $372,802.50
----------
All of the above items, except for the registration fee, are estimates. The
Selling Stockholder will not bear any of the expenses set forth above.
Item 15. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
Section 145(c) of the DGCL provides that to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
145(a) and (b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
II-1
<PAGE>
Section 145(d) of the DGCL provides that any indemnification under Section
145(a) and (b) (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 145(a) and
(b). Such determination shall be made (1) by a majority vote of the directors
who were not parties to such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (3) by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in Section 145. Such
expenses (including attorneys' fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
Section 145(f) of the DGCL provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, Section 145 shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 145(g) of the DGCL provides that a corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his capacity as such, whether or not the corporation
would have the power to indemnify him against such liability under Section 145.
Restated Certificate of Incorporation
Article Seventh of the Restated Certificate of Incorporation of EDS
provides that no director of EDS shall be personally liable to EDS or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
involving any act or omission of any such director; provided, however, that such
Article Seventh does not eliminate or limit the liability of a director (1) for
any breach of such director's duty of loyalty to EDS or its stockholders, (2)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) under Section 174 of the DGCL (which relates
to certain unlawful dividend payments or stock purchases or redemptions), as the
same exists or may hereafter be amended, supplemented or replaced, or (4) for a
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of EDS, in addition to
the limitation on personal liability described above, shall be limited to the
fullest extent permitted by the DGCL, as so amended. Furthermore, any repeal or
modification of Article Seventh of the Restated Certificate of Incorporation by
the stockholders of EDS shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of EDS existing at
the time of such repeal or modification.
Bylaws
Article VI of the Amended and Restated Bylaws of EDS provides that each
person who at any time shall serve or shall have served as a director, officer,
employee or agent of EDS, or any person who, while a director, officer, employee
or agent of EDS, is or was serving at the written request of EDS (in accordance
with written procedures adopted from time to time by the Board of Directors of
EDS) as a director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or
other enterprise, shall be entitled to (a) indemnification and (b) the
advancement of expenses incurred by such person from EDS as, and to the fullest
extent, permitted by Section 145 of the DGCL or any successor statutory
provision, as from time to time amended.
II-2
<PAGE>
Indemnification Agreements
EDS has entered into Indemnification Agreements (the "Indemnification
Agreements") with its directors and certain of its officers (the "Indemnitees").
Under the terms of the Indemnification Agreements, EDS has generally agreed to
indemnify, and advance expenses to, each Indemnitee to the fullest extent
permitted by applicable law on the date of such agreements and to such greater
extent as applicable law may thereafter permit. In addition, the Indemnification
Agreements contain specific provisions pursuant to which EDS has agreed to
indemnify each Indemnitee (i) if such person is, by reason of his or her status
as a director, nominee for director, officer, agent or fiduciary of EDS or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise with which such person was serving at the request of EDS
(any such status being hereinafter referred to as a "Corporate Status"), made or
threatened to be made a party to any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution mechanism, investigation or
other proceeding (each, a "Proceeding"), other than a Proceeding by or in the
right of EDS, (ii) if such person is, by reason of his or her Corporate Status,
made or threatened to be made a party to any Proceeding brought by or in the
right of EDS to procure a judgment in its favor, except that no indemnification
shall be made in respect of any claim, issue or matter in such Proceeding as to
which such Indemnitee shall have been adjudged to be liable to EDS if applicable
law prohibits such indemnification (unless and only to the extent that a court
shall otherwise determine), (iii) against expenses actually and reasonably
incurred by such person or on his or her behalf in connection with any
Proceeding to which such Indemnitee was or is a party by reason of his or her
Corporate Status and in which such Indemnitee is successful, on the merits or
otherwise, (iv) against expenses actually and reasonably incurred by such person
or on his or her behalf in connection with a Proceeding to the extent that such
Indemnitee is, by reason of his or her Corporate Status, a witness or otherwise
participates in any Proceeding at a time when such person is not a party in the
Proceeding and (v) against expenses actually and reasonably incurred by such
person in any judicial adjudication of or any award in arbitration to enforce
his or her rights under the Indemnification Agreements.
Furthermore, under the terms of the Indemnification Agreements, EDS has
agreed to pay all reasonable expenses incurred by or on behalf of an Indemnitee
in connection with any Proceeding, whether brought by or in the right of EDS or
otherwise, in advance of any determination with respect to entitlement to
indemnification and within 15 days after the receipt by EDS of a written request
from such Indemnitee for such payment. In the Indemnification Agreements, each
Indemnitee has agreed that he or she will reimburse and repay EDS for any
expenses so advanced to the extent that it shall ultimately be determined that
he or she is not entitled to be indemnified by EDS against such expenses.
The Indemnification Agreements also include provisions that specify the
procedures and presumptions which are to be employed to determine whether an
Indemnitee is entitled to indemnification thereunder. In some cases, the nature
of the procedures specified in the Indemnification Agreements varies depending
on whether there has occurred a "Change in Control" (as defined in the
Indemnification Agreements) of EDS.
Insurance
EDS has obtained and intends to maintain in effect directors' and officers'
liability insurance policies providing customary coverage for its directors and
officers against losses resulting from wrongful acts committed by them in their
capacities as directors and officers of EDS.
The above discussion of EDS' Restated Certificate of Incorporation and
Bylaws, the Indemnification Agreements and Section 145 of the DGCL is not
intended to be exhaustive and is respectively qualified in its entirety by such
documents and statute.
II-3
<PAGE>
Item 16. Exhibits.
The following documents are exhibits to the Registration Statement.
Exhibit
Number Description of Document
------- -----------------------
4(a) Restated Certificate of Incorporation of Electronic
Data Systems Corporation, as amended through June 7,
1996 - incorporated herein by reference to Exhibit 3(a)
to the Current Report on Form 8-K of the Registrant
dated June 7, 1996.
4(b) Amended and Restated Bylaws of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incor-
porated herein by reference to Exhibit 3(b) to the
Current Report on Form 8-K of the Registrant dated June
7, 1996.
4(c) Rights Agreement dated as of March 12, 1996 between the
Registrant and The Bank of New York, as Rights Agent
- incorporated herein by reference to Exhibit 4(c) to
the Registration Statement on Form S-4 of the Regis-
trant (File No. 333-02543).
5 Opinion of D. Gilbert Friedlander
10(j) Agreement dated April 24, 1998 between EDS and United
States Trust Company of New York, as Trustee of the
General Motors Hourly-Rate Employees Pension Plan
23(a) Consent of KPMG Peat Marwick LLP, independent auditors
23(b) Consent of D. Gilbert Friedlander (included in Exhibit
5 to this Registration Statement)
24 Powers of Attorney (included on signature page to
this Registration Statement)
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to the registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(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 set
forth in the registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or nay material change to such information in the
registration statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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.
II-4
<PAGE>
4. That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act 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
Commission such indemnification is against public policy as expressed
in the Securities Act 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 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.
II-5
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Plano, State of Texas, on the 24th day of April,
1998.
Electronic Data Systems Corporation
By: /s/ LESTER M. ALBERTHAL, JR.
-------------------------------
Lester M. Alberthal, Jr.
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lester M. Alberthal, Jr., Gary J.
Fernandes and Jeffrey M. Heller, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including pre- or
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such attorneys-in-fact
and agents and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their 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 on April 24,
1998 in the capacities indicated.
Signature Title
--------- -----
/s/ LESTER M. ALBERTHAL, JR. Chairman of the Board, Chief Executive
------------------------------- Officer and Director (Principal
Lester M. Alberthal, Jr. Executive Officer)
/s/ GARY J. FERNANDES Vice Chairman and Director (Principal
------------------------------- Financial Officer)
Gary J. Fernandes
/s/ JEFFREY M. HELLER President, Chief Operating Officer and
------------------------------- Director
Jeffrey M. Heller
/s/ H. PAULETT EBERHART Vice President and Controller (Principal
------------------------------- Accounting Officer)
H. Paulett Eberhart
II-6
<PAGE>
Signature Title
--------- -----
/s/ JAMES A. BAKER, III Director
-------------------------------
James A. Baker, III
/s/ RICHARD B. CHENEY Director
-------------------------------
Richard B. Cheney
/s/ RAY J. GROVES Director
-------------------------------
Ray J. Groves
/s/ RAY L. HUNT Director
-------------------------------
Ray L. Hunt
/s/ C. ROBERT KIDDER Director
-------------------------------
C. Robert Kidder
/s/ JUDITH RODIN Director
-------------------------------
Judith Rodin
/s/ ENRIQUE J. SOSA Director
-------------------------------
Enrique J. Sosa
/s/ WILLIAM H. GRAY, III Director
-------------------------------
William H. Gray, III
II-7
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
------- -----------
4(a) Restated Certificate of Incorporation of Electronic
Data Systems Corporation, as amended through June 7,
1996 - incorporated herein by reference to Exhibit 3(a)
to the Current Report on Form 8-K of the Registrant
dated June 7, 1996.
4(b) Amended and Restated Bylaws of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incor-
porated herein by reference to Exhibit 3(b) to the
Current Report on Form 8-K of the Registrant dated June
7, 1996.
4(c) Rights Agreement dated as of March 12, 1996 between the
Registrant and The Bank of New York, as Rights Agent
- incorporated herein by reference to Exhibit 4(c) to
the Registration Statement on Form S-4 of the Regis-
trant (File No. 333-02543).
5 Opinion of D. Gilbert Friedlander
10(j) Agreement dated April 24, 1998 between EDS and United
States Trust Company of New York, as Trustee of the
General Motors Hourly-Rate Employees Pension Plan
23(a) Consent of KPMG Peat Marwick LLP, independent auditors
23(b) Consent of D. Gilbert Friedlander (included in Exhibit
5 to this Registration Statement)
24 Powers of Attorney (included on signature page to
this Registration Statement)
<PAGE>
Exhibit 5
---------
April 24, 1998
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, Texas 75024-3199
Ladies and Gentlemen:
I am General Counsel of Electronic Data Systems Corporation, a Delaware
corporation ("EDS"), and have acted as counsel to EDS in connection with the
filing of its Registration Statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), which
Registration Statements relates to the offering from time to time of 40,000,000
shares (the "Shares") of common stock, $.01 par value per share (the "Common
Stock"), of EDS by and for the account of the General Motors Special Hourly
Employees Pension Trust
In furnishing this opinion, I have examined and relied upon the
accuracy of original, certified, conformed or photographic copies of such
records, agreements, certificates or other documents as I have deemed necessary
or appropriate to render the opinion set forth below. In all of such
examinations, I have assumed the genuineness of signatures on original documents
and the conformity to such original documents of all copies submitted to me as
certified, conformed or photographic copies and, as to certificates of public
officials, I have assumed the same to have been properly given and to be
accurate. I have also relied, as to various matters of fact material to this
opinion, on certificates of public officials and officers of EDS.
On the basis of the foregoing, I am of the opinion that the Shares are
duly authorized, legally issued, fully paid and nonassessable shares of Common
Stock.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of my name under the caption "Legal Matters" in the Prospectus forming a part of
the Registration Statement.
Very truly yours,
/S/ D. GILBERT FRIEDLANDER
-----------------------------------------
D. Gilbert Friedlander
Senior Vice President and
General Counsel
<PAGE>
Exhibit 10(j)
-------------
April 24, 1998
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Norman P. Goldberg
Gentlemen:
Reference is made to the Registration Rights Agreement dated
as of March 12, 1995 by and between Electronic Data Systems Corporation ("EDS")
(as successor to certain rights and obligations of General Motors Corporation
pursuant to the Succession Agreement dated June 7, 1996 (the "Succession
Agreement")) and United States Trust Company of New York, as trustee (the
"Trustee") of a trust established under the General Motors Hourly-Rate Employees
Pension Plan (the "Pension Plan"), for the account of and on behalf of the
Pension Plan (as amended by the Succession Agreement, the "Registration
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings set forth in the Registration Agreement.
Pursuant to Section 3(b) of the Registration Agreement, at any
time after March 12, 1999 the Pension Plan may deliver a written request that
EDS file with the Commission a Shelf Registration Statement registering up to
the lesser of (i) 40 million shares of Registrable Securities or (ii) the amount
of Registrable Securities that, if transferred, would result in the Pension
Plan's owning 50 million shares of Registrable Securities. The Pension Plan has
requested that EDS file with the Commission a Shelf Registration Statement
covering 40 million shares of Registrable Securities prior to March 12, 1999.
EDS hereby agrees to file with the Commission prior to March 12, 1999 a Shelf
Registration Statement covering 40 million shares of Registrable Securities,
subject to terms of this letter agreement.
The Pension Plan hereby acknowledges that the Shelf
Registration Statement to be filed by EDS pursuant to this letter agreement
shall be effected in accordance with, and will be subject to the terms of, the
Registration Agreement. Specifically, the Pension Plan acknowledges: (A) its
obligation pursuant to clause (iii) of Section 3(d) of the Registration
Agreement to furnish EDS with not less than 10 days notice of a proposed
Transfer pursuant to the Shelf Registration Statement; (B) EDS' right to
postpone the making of a Demand Transfer pursuant to Section 3(f) of the
Registration Agreement; (C) that EDS is not required to file an additional Shelf
Registration Statement prior to March 12, 1999, by virtue of the second
paragraph of Section 3(b) or otherwise; (D) that each sale by the Pension Plan
under the Shelf Registration Statement shall constitute either a "Public
Transfer" or "Negotiated Transfer" for
<PAGE>
purposes of Section 3(a) of the Registration Agreement; and (E) its obligations
under the penultimate sentence of Section 3(g) and Section 3(h) regarding the
sale of the Registrable Securities.
This letter agreement may be executed in counterparts, and
shall be deemed to have been duly executed and delivered by all parties when
each party has executed a counterpart hereof and delivered an original or
facsimile copy thereof to the other party. Each such counterpart hereof shall be
deemed to be an original, and all of such counterparts together shall constitute
one and the same instrument.
ELECTRONIC DATA SYSTEMS
CORPORATION
By: /S/ D. GILBERT FRIEDLANDER
Name: D. Gilbert Friedlander
Title: Senior Vice President
AGREED TO AND ACCEPTED
GENERAL MOTORS HOURLY-RATE
EMPLOYEES PENSION PLAN
By: UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee of the General
Motors Hourly Employees Pension Trust
By: /S/ NORMAN P. GOLDBERG
-----------------------
Norman P. Goldberg
Authorized Agent
<PAGE>
Exhibit 23(a)
-------------
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Electronic Data Systems Corporation:
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Dallas, Texas
April 24, 1998
