As filed with the Securities and Exchange Commission on August 6, 1999
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. David B. Hollander, Esq.
Jones, Day, Reavis & Pogue Electronic Data Systems Corporation
2300 Trammell Crow Center 5400 Legacy Drive
2001 Ross Avenue Plano, TX 75024-3105
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) 25,449,886 shares $57.40625 $1,460,982,518 $406,154
=============================================================================================================
</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 11,250,000 shares of Common Stock covered by the
Registrant's Registration Statement on Form S-3 (File No. 333-50971). Such
shares are being carried forward from such earlier Registration Statement in
accordance with Rule 429(b). A filing fee of $136,068 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 August 4, 1999 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>
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+*****************************************************************************+
+* The information in this prospectus is not complete and may be changed. *+
+* We may not sell these securities until the registration statement *+
+* filed with the Securities and Exchange Commission is effective. This *+
+* prospectus is not an offer to sell these securities and we are not *+
+* soliciting offers to buy these securities in any state where the offer *+
+* or sale is not permitted. *+
+*****************************************************************************+
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, AUGUST 6, 1999
PROSPECTUS
[GRAPHIC OMITTED - EDS LOGO]
36,699,886 Shares
Electronic Data Systems Corporation
Common Stock
__________________
The General Motors Special Hourly Employees Pension Trust under the
General Motors Hourly Rate Employees Pension Plan may offer from
time to time all of the shares. EDS will not receive any of the
proceeds from the sale of shares by the selling stockholder.
__________________
The specific terms of a particular offering, including the names
of any underwriter and applicable commissions or discounts, will be
included in a supplement to this prospectus.
__________________
EDS' common stock is listed on the New York Stock Exchange
under the symbol "EDS."
On August 5, 1999, the reported last sale price of the
common stock on the New York Stock Exchange was $58.9375 per share.
__________________
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
__________________
, 1999
<PAGE>
TABLE OF CONTENTS
Page
Where You Can Find More Information............................. 2
The Company..................................................... 3
Use of Proceeds................................................. 3
Background of the Offering...................................... 3
Selling Stockholder............................................. 4
Plan of Distribution............................................ 4
Legal Matters................................................... 5
Experts......................................................... 5
WHERE YOU CAN FIND MORE INFORMATION
EDS files annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission. Our SEC
filings are available to the public over the internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
public reference rooms in Washington, D.C., New York, New York, and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until all of the shares offered hereby have been sold or we have filed with the
SEC an amendment to the registration statement relating to this offering which
deregisters all securities then remaining unsold:
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
- Current Reports on Form 8-K dated April 29 and May 6, 1999; and
- The description of our common stock contained in Form S-3 (SEC File
No. 333-06655), as filed with the SEC on June 24, 1996, and any
amendment or report which we file for purposes of updating this
information.
You may request a copy of these filings at no cost, by writing or telepho-
ning us at the following address:
EDS Investor Relations - Mailstop H1-2D-05
5400 Legacy Drive
Plano, Texas 75024-3105
Telephone (972) 605-8933
You should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone to
provide you with information that is different. We are not making an offer of
these securities in any jurisdiction where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement or any other document incorporated by reference herein is accurate as
of any date other than the date of such document.
2
<PAGE>
THE COMPANY
EDS offers its clients a full spectrum of services worldwide, from
corporate strategy development and planning to business process management and
implementation. EDS' service offerings include the following:
- Management Consulting. A.T. Kearney, an EDS subsidiary, provides
clients with high value-added consulting services, including strategic
consulting, operations consulting, information technology consulting, and
executive search services.
- E.Solutions. EDS' offerings in this area include electronic
commerce, on-line ventures and internet services, supply chain management,
enterprise customer management, solutions consulting and business intelligence
services, and Year 2000 remediation services.
- Information Solutions. EDS' traditional outsourcing business
encompasses voice and data communications, applications development and
management, computing, and desktop management services.
In May 1999, EDS announced plans to reorganize into five geographic
management regions as its primary channels for marketing, selling and delivering
products and services to its clients. The units are the United States, Europe,
the Middle East and Africa, Canada, Latin America, and Asia/Pacific and Japan.
As of June 30, 1999, EDS employed approximately 125,000 persons and
served clients in the United States and approximately 50 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 of Common Stock offered hereby. All of the proceeds will be for the
account of the General Motors Special Hourly Employees Pension Trust, which we
refer to as the Hourly Plan Special Trust or the selling stockholder, under the
General Motors Hourly-Rate Employees Pension Plan, which we call the Hourly
Plan, and for the benefit of the participants in the Hourly Plan.
BACKGROUND OF THE OFFERING
On March 13, 1995, General Motors Corporation contributed approximately
173 million shares of its class E common stock to the Hourly Plan. These shares,
together with approximately 16.9 million additional shares of class E common
stock then held by the Hourly Plan, became subject to the terms of the
registration rights agreement dated March 12, 1995 between GM and the Hourly
Plan Special Trust. Pursuant to the split-off of EDS from GM on June 7, 1996,
each share of class E common stock was converted into one share of common stock
of EDS. At that time, EDS succeeded to substantially all of the rights and
obligations of GM under the registration rights agreement and all of the
provisions of that agreement became applicable to the EDS common stock held by
the Hourly Plan.
Under the registration rights agreement, the selling stockholder may
only transfer shares of common stock in certain types of transactions and under
certain circumstances, including "demand transfers," such as public offerings
and negotiated transactions, whether registered or not, and certain transfers to
employee benefit plans maintained by EDS. The selling stockholder is permitted
to make two demand transfers in any twelve-month period. The registration rights
agreement provides that any underwritten public offering to be effected by the
3
<PAGE>
selling stockholder must be reasonably designed to achieve a broad public
distribution of the shares of common stock being offered. In addition, until its
ownership represents less than 2% of the outstanding common stock, the selling
stockholder may not make a negotiated transfer (1) of more than 2% of the shares
of common stock then outstanding to any person and (2) 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 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 tender offer until it 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 the common stock.
SELLING STOCKHOLDER
The Hourly Plan Special Trust owns 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 ERISA. A portion of the Hourly
Plan' assets, not including the common stock owned by the Hourly Plan Special
Trust, is managed by General Motors Investment Management Corporation, a
wholly-owned subsidiary of GM.
United States Trust Company of New York is the trustee for the Hourly
Plan Special Trust and its affiliate, U.S. Trust Company of California, N.A., is
the trustee for a sub-trust under the Hourly Plan Special Trust. The trustee has
responsibility to prudently manage the 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. Subject to the
terms of the registration rights agreement, the trustee has the authority to
cause the Hourly Plan Special Trust to sell shares of common stock from time to
time as it may deem appropriate, and to vote the shares of common stock held by
the Hourly Plan Special Trust. The trustee intends to manage the sale of the
common stock in a manner consistent with maintaining an orderly market for the
shares. The trustee has retained Wasserstein Perella & Co., Inc. to serve as its
investment advisor regarding the management and sale of the common stock. The
compensation received by the trustee and its investment advisor is not
contingent in any way on the sale or continued ownership of common stock by the
Hourly Plan Special Trust.
On July 26, 1999, the Hourly Plan Special Trust beneficially owned
86,699,886 shares of common stock, representing approximately 17.6% of the
outstanding common stock.
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 New
York Stock Exchange 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:
- 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 the time of sale;
- 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;
- purchases by a broker or dealer as principal and resale by the broker
or dealer for its account; or
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers.
The selling stockholder and/or purchasers of common stock may pay
brokers and dealers for selling common stock. These payments may be in the form
of underwriting discounts, concessions, or commissions. The selling stockholder
and any broker or dealer who sells or assists the selling stockholder in selling
common stock
4
<PAGE>
may be deemed an underwriter within the meaning of the Securities Act. If they
are deemed to be underwriters, any brokerage commissions or discounts may be
deemed to be underwriting discounts and commissions under the Securities Act.
EDS will file, as necessary, a prospectus supplement when the selling
stockholder notifies EDS that it has entered into an arrangement with an
underwriter, broker, or dealer for the sale of common stock. The prospectus
supplement will disclose certain material information, including:
- the number of shares being offered;
- the terms of the offering;
- any discounts, commissions, or other compensation paid to underwriters,
brokers or dealers;
- the public offering price;
- any discounts, commissions or concessions allowed or reallowed or paid by
any underwriters to dealers;
- and other material terms of the offering.
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 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,
accounting fees, printing fees, and fees and disbursements of its counsel and
not more than one outside counsel representing the selling stockholder. The
selling stockholder will bear all other expenses in connection with this
offering, including any underwriting discounts and commissions, and brokerage
fees.
Under 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
D. Gilbert Friedlander, Senior Vice President and General Counsel of
EDS, will issue an opinion about the validity of the shares of common stock
offered hereby. Mr. Friedlander is the beneficial owner of shares of common
stock.
EXPERTS
Our consolidated financial statements and financial statement schedule
as of December 31, 1998 and 1997 and for each of the years in the three-year
period ended December 31, 1998 included in our Form 10-K for the year ended
December 31, 1998 are incorporated by reference herein in reliance upon the
reports of KPMG LLP, independent auditors, also incorporated by reference
herein, upon the authority of that firm as experts in accounting and auditing.
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 distribu-
tion of the securities being registered, all of which are payable by EDS.
5
<PAGE>
Securities and Exchange Commission registration fee... $406,154
Accounting fees and expenses.......................... 3,000
Printing expenses..................................... 20,000
Counsel fees.......................................... 10,000
Miscellaneous......................................... 5,000
-------
Total.......................................... $444,154
=======
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 present
or former director or officer 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.
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 present or former director or officer 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, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who were not parties to such action, suit or
proceeding, even though less than a quorum, (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
(3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders.
6
<PAGE>
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 former directors and officers
or other employees and agents may be so paid upon such terms and conditions, if
any, as the corporation deems appropriate.
Section 145(f) of the DGCL provides that the indemnification and ad-
vancement 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.
7
<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 offi-
cers' 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.
8
<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 Regis-
trant 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
Registrant (File No. 333-02543).
5 Opinion of D. Gilbert Friedlander
23(a) Consent of KPMG 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, indi-
vidually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the regis-
tration statement or any 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
9
<PAGE>
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 amend-
ment any of the securities being registered which remain unsold at the
termination of the offering.
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 incor-
porated 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 ex-
pressed in the Securities Act and will be governed by the final adjudi-
cation of such issue.
10
<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 6th day of August,
1999.
Electronic Data Systems Corporation
By: /s/ RICHARD H. BROWN
-------------------------------
Richard H. Brown
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 Richard H. Brown, Jeffrey M. Heller, James
E. Daley and D. Gilbert Friedlander, 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 August 6,
1999 in the capacities indicated.
Signature Title
--------- -----
/s/ RICHARD H. BROWN Chairman of the Board, Chief Executive
--------------------- Officer and Director (Principal
Richard H. Brown Executive Officer)
/s/ JEFFREY M. HELLER President, Chief Operating Officer and
--------------------- Director
Jeffrey M. Heller
/s/ JAMES E. DALEY Executive Vice President and Chief
--------------------- Financial Officer (Principal Financial
James E. Daley Officer)
/s/ H. PAULETT EBERHART Senior Vice President (Principal
--------------------- Accounting Officer)
H. Paulett Eberhart
11
<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
12
<PAGE>
INDEX TO EXHIBITS
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 Regis-
trant 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
Registrant (File No. 333-02543).
5 Opinion of D. Gilbert Friedlander
23(a) Consent of KPMG 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
---------
August 4, 1999
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 Statement relates to the offering from time to time of 36,699,886
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, Secretary
and General Counsel
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 LLP
Dallas, Texas
August 2, 1999
