As filed with the Securities and Exchange Commission on October 29, 1999
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-----------
FORM S-8
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 75024-3199
(Address of principal executive offices) (Zip Code)
EDS Executive Deferral Plan
(Full title of the plan)
James E. Daley
Chief Financial Officer
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, Texas 75024-3199
(Name and address of agent for service)
(972) 604-6000
(Telephone number, including area code, of agent for service)
------------
Copy to:
D. Gilbert Friedlander
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, Texas 75024-3199
(972) 604-6000
------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
<S><C> <C> <C> <C> <C>
Amount Proposed Maximum Proposed Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Share Offering Price Registration Fee
- ------------------------------------ ---------------- ---------------- ---------------- ----------------
Common Stock, par value $0.01
per share (1)(2)..................... 3,060,000 shares $50.3125 (3) $153,956,250 $42,799.84
====================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the EDS Executive Deferral Plan.
(2) 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 shares of Common Stock registered
hereby.
(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 on October 22,
1999 for Common Stock of Electronic Data Systems Corporation.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Act"). In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. The registrant shall maintain a
file of such documents in accordance with the provisions of Rule 428. Upon
request, the registrant shall furnish to the Commission or its staff a copy or
copies of any or all of the documents included in such file. Such documents,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Act.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Electronic Data Systems
Corporation, a Delaware corporation ("EDS"), with the Commission are
incorporated herein by reference:
1. EDS' Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
2. EDS' Quarterly Reports on Form 10-Q for the quarters ended March
31 and June 30, 1999;
3. EDS' Current Reports on Form 8-K dated as of April 29, 1999,
May 6, 1999, September 7, 1999, October 12, 1999, and October 28,
1999;
4. EDS' Registration Statement on Form S-4 (File No. 333-02543),
including the section entitled "Description of Capital Stock."
All documents filed by EDS with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of filing of such documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in a document incorporated by reference herein shall be deemed
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein, in any subsequently filed supplement to this
Registration Statement or any document that is also incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
D. Gilbert Friedlander, General Counsel of EDS, who is passing on the
validity of the common stock offered pursuant to the Plan, owns shares of EDS
Common Stock.
Item 6. 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
II-1
<PAGE>
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, 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, 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.
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 such
person 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
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.
II-2
<PAGE>
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.
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.
II-3
<PAGE>
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.
Item 7. Exemptions from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4(a) EDS Executive Deferral Plan.
4(b) 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(c) Amended and Restated Bylaws of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incorporated
herein by reference to Exhibit 3(b) to the Current Report on
Form 8-K of the Registrant dated June 7, 1996.
4(d) 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
23(b) Consent of D. Gilbert Friedlander (included in Exhibit 5)
24 Power of Attorney (included on page II-6)
Item 9. Undertakings
(a) EDS hereby undertakes:
II-4
<PAGE>
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10
(a)(3) of the Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof), which, individually or in the aggregate, represents
a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such infor-
mation in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 EDS 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 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.
(b) EDS hereby undertakes that, for purposes of determining any
liability under the Act, each filing of EDS' annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of EDS pursuant
to the foregoing provisions, or otherwise, EDS has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by EDS of
expenses incurred or paid by a director, officer or controlling person of EDS 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, EDS 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 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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 28th day of
October, 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, 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 October 28,
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/ John Adams Vice President and Controller
- ------------------------------------- (Principal Accounting Officer)
John Adams
II-6
<PAGE>
/s/ James A. Baker, III Director
- -------------------------------------
James A. Baker, III
/s/ Richard B. Cheney Director
- -------------------------------------
Richard B. Cheney
/s/ William H. Gray, III Director
- -------------------------------------
William H. Gray, III
/s/ Ray J. Groves Director
- -------------------------------------
Ray J. Groves
/s/ Ray L. Hunt Director
- -------------------------------------
Ray L. Hunt
Director
- -------------------------------------
C. Robert Kidder
/s/ Judith Rodin Director
- -------------------------------------
Judith Rodin
Director
- -------------------------------------
Enrique J. Sosa
Pursuant to the requirements of the Securities Act of 1933, the
Committee has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on the 28th day of October, 1999.
EDS EXECUTIVE DEFERRAL PLAN
By: /s/ TROY W. TODD
--------------------------------
Troy W. Todd
Committee Chairman
II-7
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit
Number Description
------- -----------
4(a) EDS Executive Deferral Plan.
4(b) 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(c) Amended and Restated Bylaws of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incorporated
herein by reference to Exhibit 3(b) to the Current Report on
Form 8-K of the Registrant dated June 7, 1996.
4(d) 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
23(b) Consent of D. Gilbert Friedlander (included in Exhibit 5)
24 Power of Attorney (included on page II-6)
EXHIBIT 4(a)
------------
EDS EXECUTIVE DEFERRAL PLAN
ARTICLE I
INTRODUCTION
1.1 Creation. Upon the recommendation of the Compensation and Benefits
Committee ("Committee") of its Board of Directors ("Board"), the
Company has adopted this EDS Executive Deferral Plan ("Plan"),
effective January 1, 2000.
1.2 Purpose. The objective and purpose of this Plan is to attract and
retain competent officers, key executives and highly compensated
employees by offering flexible compensation opportunities to officers,
key executives and highly compensated employees of the Company and to
offer them an opportunity to defer income to be paid at a later date.
The Plan shall not constitute a "qualified plan" subject to the
limitations of Section 401(a) of the Code, nor shall it constitute a
"funded plan," for purposes of such requirements. This Plan shall be
exempt from the participation and vesting requirements of Part 2 of
Title I of ERISA, the funding requirements of Part 3 of Title I of
ERISA, and the fiduciary requirements of Part 4 of Title I of ERISA by
reason of the exclusions afforded plans which are unfunded and
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. The following words and phrases shall have the meaning set
forth below, unless a different meaning is required by the context in
which the word or phrase is used.
(a) Account shall mean the bookkeeping account to which a
Participant's deferred Compensation is credited, together with
any earnings thereon.
(b) Affiliate shall mean (i) a corporation that is a member of a
controlled group of corporations (as determined pursuant to
Section 414(b) of the Code) which includes the Company and (ii) a
trade or business (whether or not incorporated) which is under
common control (as determined pursuant to Section 414(c) of the
Code) of the Company.
(c) Beneficiary shall mean the person or persons designated by the
Participant in a writing filed with the Committee to receive
payment of the Participant's Account upon the death of the
Participant.
(d) Board shall mean the Board of Directors of the Company.
<PAGE>
(e) Change of Control shall mean such term as defined in the Rules
immediately prior to a CIC Event; provided however, that, until
changed by the Committee by Rule, "Change of Control" shall mean
a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A (or in response to any similar item on any
similar schedule or form) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not the Company
is then subject to such reporting requirement; provided, however,
that, without limiting the generality of the foregoing, a Change
in Control shall be deemed to have occurred (irrespective of the
applicability of the initial clause of this proviso) if at any
time (a) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act, but excluding (i) any employee benefit
plan of the Company or any Affiliate, and (ii) any entity
organized, appointed or established by the Company pursuant to
the terms of any such plan) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more
of the combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds of
the members of the Board in office immediately prior to such
person's attaining such percentage interest; (b) the Company is a
party to a merger, consolidation, share exchange, sale of assets
or other reorganization, or a proxy contest, as a consequence of
which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the whole
Board thereafter; or (c) during any period of two consecutive
years, individuals who at the beginning of such period
constituted members of the Board (including for this purpose any
new member whose election or nomination for election by the
Company's stockholders was approved by at least two-thirds of the
members of the whole Board then still in office who were members
of the Board at the beginning of such period) cease for any
reason to constitute a majority of the whole Board.
(f) CIC Event shall mean such term as defined in Section 6.2.
(g) Code shall mean the Internal Revenue Code of 1986, as amended.
(h) Company shall mean Electronic Data Systems Corporation, a
Delaware corporation.
(i) Committee shall mean the Compensation and Benefits Committee of
the Board, or any successor thereto.
(j) Common Stock shall mean the common stock, par value $.01 per
share, of the Company.
(k) Compensation shall, for any period, mean such amount as the
Committee may designate (which may be different amounts for
different purposes under the Plan);
2
<PAGE>
provided that such amount shall not exceed the total earnings
prior to withholding, as reportable on Internal Revenue Service
Form W-2, payable to any Employee by an Employer in such
period, disregarding any Deferral Election hereunder, and in-
creased by amounts not included in income through a salary
reduction election made pursuant to a cafeteria plan described
in Code Section 125, or the EDS 401(k) Plan.
(l) Deferral Election shall mean the agreement between the Company or
Participating Employer and an Eligible Employee pursuant to which
the Eligible Employee consents to participation and the deferral
of Compensation hereunder, and designates the amount of
Compensation to be deferred.
(m) Deferral Election Deadline shall mean the date the Committee
designates by Rule as the last date an Eligible Employee may file
a Deferral Election with the Committee for such period as the
Committee may designate.
(n) EDS 401(k) Plan shall mean the employee pension plan intended to
qualify under Code Sections 401(a) and 401(k) as established by
the Company effective July 1, 1983, as amended from time-to-time,
any successor to such plan, and any other plan of the Company or
an Affiliate intended to qualify under Code Sections 401(a) and
401(k) as may be designated by the Committee.
(o) Eligible Employee shall mean an Employee of the Company or a
Participating Employer whom the Committee designates by Rule as
in a class of Employees eligible to participate in the Plan.
Notwithstanding the foregoing, the Committee shall permit only a
select group of management or highly compensated employees to be
Eligible Employees.
(p) Employee shall mean any person employed as an employee by an
Employer and on the payroll of an Employer. If a person's status
as an employee is redetermined retroactively, such
redetermination shall not affect participation in the Plan prior
to the redetermination.
(q) Employer shall mean the Company and Participating Employers.
(r) ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
(s) Fair Market Value of a share of Common Stock shall mean the fair
value thereof, determined under such Rules as the Committee may
establish. Unless the Committee so establishes a different
meaning, Fair Market Value of a share of Common Stock shall mean
as of a particular date, (i) if shares of Common Stock are listed
on a national securities exchange, the closing price per share of
Common Stock on the consolidated transaction reporting system for
the principal national securities exchange on which shares of
Common Stock are listed on that
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date, or, if there shall have been no such sale so reported on
that date, on the last preceding date on which such a sale was
so reported, (ii) if shares of Common Stock are not so listed but
are quoted on the Nasdaq National Market, the closing price per
share of Common Stock reported by the Nasdaq National Market on
that date, or, if there shall have been no such sales reported on
that date, on the last preceding date on which such a sale was so
reported or (iii) if the Common Stock is not so listed or quoted
but is traded in the over-the-counter market, the mean between
the closing bid and asked price on that date, or, if there are no
quotations available for such date, on the last preceding date on
which such quotations shall be available, as reported by the
Nasdaq Stock Market, or, if not reported by the Nasdaq Stock
Market, by the National Quotations Bureau Incorporated.
(t) Participant shall mean each Eligible Employee who has properly
completed and filed a Deferral Election with the Committee.
(u) Participating Employer shall mean any Affiliate which, with the
consent of the Committee, elects to become and accepts the
obligations of an Employer hereunder.
(v) Plan shall mean this EDS Executive Deferral Plan, as amended from
time to time. (w) Plan Year shall mean the calendar year or such
other period as the Committee may designate by Rule. (x) Rule
shall mean a determination, regulation, standard, or rule of
general applicability made by the Committee from time to time.
(y) Valuation Date shall mean the last business day of each
calendar quarter, or such other dates as the Committee may, in
its discretion, designate; provided that there shall be at least
one Valuation Date each Plan Year.
(w) Plan Year shall mean the calendar year or such other period as
the Committee may designate by Rule.
(x) Rule shall mean a determination, regulation, standard, or rule of
general applicability made by the Committee from time to time.
(y) Valuation Date shall mean the last business day of each calendar
quarter, or such other dates as the Committee may, in its
discretion, designate; provided that there shall be at least one
Valuation Date each Plan Year.
2.2 Construction. If any provision of this Plan or any Rule is determined
to be for any reason invalid or unenforceable, the remaining provisions
of this Plan and the remaining Rules shall continue in full force and
effect. All of the provisions of this Plan and the Rules hereunder
shall be construed and enforced in accordance with the laws of the
State of Delaware (other than its laws regarding choice of laws) and
shall be administered according to the laws of such state, except as
otherwise required by ERISA, the Code or other applicable federal law.
The masculine gender, where appearing in this Plan or the Rules, shall
include the feminine gender, and vice versa. The terms "delivered to
the Committee" and "filed with the Committee," as used in this Plan or
the Rules, shall include, respectively, delivery to and filing with a
person or persons designated by the Committee for the disbursement and
the receipt of administrative forms. Headings and subheadings in the
Plan or the Rules are for the purpose of reference only and are not to
be considered in the construction of this Plan or the Rules.
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ARTICLE III
PARTICIPATION AND VESTING
3.1 Eligibility and Participation. An Eligible Employee who properly
completes and files with the Committee a Deferral Election pursuant to
which a portion of his Compensation is deferred under the Plan shall
become a Participant. A Participant shall remain a Participant until
his entire Account under the Plan is extinguished, through distribution
or otherwise.
3.2 Ceasing to be an Eligible Employee. Status as an Eligible Employee will
be redetermined from time to time, at least annually. If an individual
ceases for any reason to be an Eligible Employee, through termination
of employment or otherwise, his Deferral Election shall forthwith
terminate, and he shall not again become eligible to make a Deferral
Election until he again becomes an Eligible Employee.
3.3 Vesting. The Committee may establish Rules governing vesting and
forfeitability of all or any portion of a Participant's Account.
ARTICLE IV
DEFERRAL ELECTIONS, MATCHING CREDITS
AND ACCOUNTING
4.1 Deferral Elections. Each Eligible Employee shall be provided an
opportunity to make a Deferral Election with respect to such portion of
his Compensation as the Committee designates by Rule. The Committee may
require or permit separate Deferral Elections to be made with respect
to different elements of Compensation, and may provide that Deferral
Elections shall be subject to minimum and maximum limitations on the
amount deferred.
Deferral Elections for a Plan Year shall be filed with the Committee no
earlier than the date permitted by the Committee, and no later than the
Deferral Election Deadline. Deferral Elections for a Plan Year shall
become irrevocable at such time as the Committee may designate by Rule.
A Participant's Deferral Election shall automatically terminate on his
termination of employment, unless the Committee otherwise provides. The
Committee shall determine the form and manner of filing the Deferral
Election, which shall be by such means as the Committee shall require
or permit, including, but not limited to traditional writing or
electronic means.
4.2 Additional Credits. The Committee may by Rule permit additional or
matching credits to be made to Participants' Accounts, at such time and
based upon such criteria as the Committee deems appropriate.
4.3 Accounting for Deferred Compensation. The Committee shall maintain an
Account in the name of each Participant. The value of each Account
shall be adjusted as of each Valuation Date to reflect the deferred
Compensation credited thereto, the rate of return
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credited (or charged) to such Account, and any amounts distributed or
withdrawn from such Account since the most recent prior Valuation
Date. In the sole discretion of the Committee, one or more sub-
Accounts may be established for each Participant to facilitate
recordkeeping convenience and accuracy.
Establishment and maintenance of Accounts hereunder shall not be
construed as giving any person any interest in assets of the Company or
an Affiliate, or a right to payment other than as provided hereunder.
An Account shall be maintained until all amounts credited to such
Account have been withdrawn, distributed, forfeited, or otherwise
extinguished in accordance with the terms and provisions of this Plan.
4.4 Rates of Return. The Committee shall by Rule establish and may change
from time to time the rate of return to be credited or charged to
Participants' Accounts. Such Rules may, but need not, specify one or
more rates of return equal to the actual rate of return on specified
predetermined actual investments (whether or not assets are actually
invested therein), and may, but need not, permit Participants to choose
among alternative rates of return for all or part of their Accounts.
ARTICLE V
DISTRIBUTION OF BENEFITS
5.1 Time and Form of Distribution. Simultaneously with the initial Deferral
Election, a Participant shall elect on a form permitted by and
delivered to the Committee, the timing and form of distribution of his
Account, subject to such limitations and exceptions as the Committee
may, by Rule, require or permit. The Committee may, by Rule, change the
timing and forms of payment available hereunder. In establishing or
changing such Rules, the Committee shall take into account constructive
receipt considerations.
5.2 Changes in Distribution Options. A Participant may change the
previously elected form of distribution only upon such terms and
conditions as the Committee may establish by Rule.
5.3 Early Distributions. The Committee, upon application of a Participant,
in its sole discretion, may direct premature distribution of part or
all of a Participant's Account either during employment or after
employment terminates, on such basis or for such reasons as the
Committee may permit.
5.4 Committee Discretion to Distribute. The Committee may establish Rules
requiring distribution of all or any part of a Participant's Account to
be made earlier or later than the time elected by the Participant
pursuant to Section 5.1, 5.2, or 5.3.
5.5 Form of Payment. All benefits under this Plan shall be paid by
negotiable check or other cash equivalent from the trust (if any) or
other general funds of the Employer, or if the Committee so designates,
in the form of a fully paid insurance or annuity contract, or in Common
Stock or other Employer securities, valued at their Fair Market Value
at the
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time of payment. For this purpose, 7,650,000 shares of Common Stock are
reserved for delivery hereunder. Such shares may be newly issued
shares, treasury shares, or shares acquired on the open market.
In the event of any stock dividend, stock split, share combination,
spinoff, reorganization, recapitalization, merger or other transaction
involving the Company, the number of shares of Common Stock reserved
under this Plan shall be adjusted by the Board, in its discretion, as
the Board deems appropriate to reflect such transaction.
5.6. Death of a Participant. In the event of the death of a Participant
prior to distribution of all amounts otherwise payable to the
Participant hereunder, the Participant's Beneficiary or Beneficiaries
shall be entitled to distribution of all vested amounts credited to
the Participant's Account, in such form as the Committee may designate
by Rule. Each Participant may designate a Beneficiary or Beneficiaries
to receive payment of his benefits under this Plan in the event of his
death, and may revoke or change such designation, in accordance with
such procedures as the Committee shall promulgate. Unless the
Committee otherwise provides, a Participant may revoke his designation
of Beneficiary (without the consent of any Beneficiary) and make a new
designation of Beneficiary by filing a new form with the Committee. A
properly completed and executed change in a designation of
Beneficiary, unless the Committee provides to the contrary, shall take
effect immediately upon being filed with the Committee during the
Participant's lifetime. If upon a Participant's death no valid
designation of Beneficiary is on file with the Committee, or if a
Beneficiary dies before payments are completed and there are no living
contingent or successive Beneficiaries, then, unless the Committee
establishes a different Rule, any remaining payments under this Plan
shall be made (1) to the Participant's surviving spouse, if any, or
(2) if there is no surviving spouse, then to the Participant's estate.
5.7 Withholding. A Participant's Employer or the Company shall have the
right to deduct applicable taxes (including, but not limited to FICA)
from amounts deferred pursuant to an Eligible Employee's Deferral
Election and from any amounts payable hereunder to a Participant or
Beneficiary and from amounts otherwise subject to any tax, and to
withhold an appropriate amount of cash or a number of shares of Common
Stock or a combination thereof for payment of taxes or to take such
other action as may be necessary in the opinion of the Employer or the
Company to satisfy all obligations for withholding of such taxes. The
Committee may also permit withholding to be satisfied by the transfer
to the Company of cash, shares of Common Stock, or other property
theretofore owned by the Participant or Beneficiary.
5.8 Facility of Payment. In the event any distribution is payable under
this Plan to a minor or other individual who is legally, physically or
mentally incompetent to receive such payment, the Committee in its sole
discretion shall pay such benefits to one or more of the following
persons:
(a) Directly to such minor or other person;
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(b) To the legal guardian or conservator of such minor or other
person;
(c) To the spouse, parent, brother, sister, child or other relative
of such minor or other person for the use of such minor or other
person; or
(d) To such other person as the Committee deems appropriate.
The Committee shall not be required to see to the application of any
distribution so made to any of such persons, but the receipt therefor
shall be a full discharge of the liability of the Plan, the Committee,
the Employers, and the trustee (if any) to such minor or other person.
5.9 Waiver and Release. The Committee may condition the payment of some or
all benefits hereunder on the Participant's entering into a binding
release and waiver in such form as the Committee shall permit.
ARTICLE VI
PAYMENT LIMITATIONS
6.1 Assignment. Except as the Committee may otherwise permit by Rule, no
Participant or Beneficiary of a Participant shall have any right to
assign, pledge, hypothecate, anticipate or any way create a lien on any
amounts payable hereunder. No amounts payable hereunder shall be
subject to assignment or transfer or otherwise be alienable, either by
voluntary or involuntary act, or by operation of law, or subject to
attachment, execution, garnishment, sequestration or other seizure
under any legal, equitable or other process, or be liable in any way
for the debts or defaults of Participants and their Beneficiaries.
6.2 Change of Control. Upon the first event constituting a part of the
Change of Control ("CIC Event"):
(a) the members of the Board serving immediately prior to the CIC
Event may, in their sole and absolute discretion, direct the
Committee to distribute all amounts credited to the Accounts of
Participants in a single lump sum payment to each Participant,
net of investment charges, surrender charges, etc. following
which the Plan shall terminate;
(b) no changes shall be made to any Rules in effect immediately prior
to the CIC Event and no new Rules shall be promulgated; and
(c) Plan amendments shall be subject to the last sentence of Section
10.1 (Amendment and Termination).
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ARTICLE VII
FUNDING AND EXPENSES
7.1 Funding. Benefits under this Plan shall be funded solely by the Company
and its Affiliates. Benefits hereunder shall constitute an unfunded
general obligation of each Participant's respective Employer. In the
event a Participant has been employed by more than one Employer,
benefits hereunder shall constitute an unfunded general obligation of
the Participant's most recent Employer. All payments under this Plan
shall be deemed made by the Participant's Employer from general assets
available to all unsecured creditors of the Employer in the event of
its insolvency. Each Participant has merely the status of a general
unsecured creditor of his Employer.
Notwithstanding the foregoing, the Company and the Employers may, but
need not create for purposes of this Plan a trust of the type commonly
referred to as a "rabbi" trust, which may, but need not, be in
substantial conformity to the terms of the model trust published by the
Internal Revenue Service in Rev. Proc. 92-64 or any successor thereto.
The Employer may transfer assets to the trustee of such trust to hold
and to make distributions under this Plan on behalf of the Employers.
The assets so held in trust shall remain the general assets of the
Employers, which are the grantors under the trust. The rights of
Participants and their Beneficiaries under this Plan and the trust
shall be exclusively unsecured contractual rights. No Participant or
Beneficiary shall have any right, title or interest whatsoever in the
trust.
7.2 Creditor Status. A Participant and his Beneficiary or Beneficiaries
shall be general creditors of the Participant's Employer with respect
to the payment of any benefit under this Plan, unless such benefits are
provided under a contract of insurance or an annuity contract that has
been delivered to the Participant, in which case the Participant and
his Beneficiary or Beneficiaries shall look to the insurance carrier or
annuity provider for payment, and not to the Employer or any Affiliate.
The Employer's or Affiliate's obligation for such benefit shall be
discharged by the purchase and delivery of such annuity or insurance
contract.
7.3 Expenses. The expenses of administering the Plan shall be borne by the
Employers, provided that, prior to a CIC Event, the Committee may
direct that assets of the trust, if any, shall be applied to pay such
expenses.
ARTICLE VIII
ADMINISTRATION
8.1 Committee. Except for rights and powers expressly reserved to the Board
or the Company, the Plan will be administered by the Committee.
8.2 Committee Powers. The Committee shall have the power and authority in
its sole and absolute discretion:
(a) To establish and from time to time amend Rules by which the Plan
will be implemented and administered from time to time, which
Rules shall be binding on the Employers and all Participants and
their Beneficiaries, even though they may apply retroactively to
Participants whose employment has terminated;
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(b) To construe and interpret the Plan, determine the application of
the Plan to situations where such application is unclear or
disputable, to resolve all questions arising under the Plan
(including questions of fact) and make equitable adjustments for
any mistakes or errors made in the administration of the Plan;
provided that individual exceptions to Rules shall not be
permitted;
(c) To determine all questions arising in the administration of the
Plan, including the power to determine the status of individuals
as Eligible Employees, the rights of Participants and their
beneficiaries and the amount of their respective benefits and
such determination, interpretation or other action shall be final
and binding for all purposes and upon all persons;
(d) To adopt, amend and rescind such rules (including Rules),
regulations and forms as it may deem necessary for the proper and
efficient administration of the Plan consistent with its
purposes, which rules may permit case-by-case determinations;
(e) To enforce and administer the Plan in accordance with its terms
and the rules, regulations and forms it adopts; to appoint a plan
administrator and to delegate to the plan administrator such
administrative duties as the Committee shall deem appropriate;
(f) To take such action and establish such procedures as it deems
necessary or appropriate to coordinate deferrals and benefits
under this Plan and any other plan;
(g) To select, monitor and prospectively change the rates of return
to be credited under the Plan;
(h) To take such action and establish such procedures as it deems
necessary or appropriate to implement Participant elections and
designations of rates of return, and to coordinate the Employers'
actions, if any, taken to reduce or eliminate the Employers'
exposure to market fluctuations;
(i) To direct the appropriate person to make payments from the Plan;
(j) To employ such counsel, auditors, actuaries, or other specialists
(who may be counsel, auditors, actuaries or other specialists for
the Company) and to engage such clerical or other services to the
extent such services are not provided by the Company;
(k) To maintain records concerning the Plan sufficient to prepare
reports, returns and other information required by the Plan or by
law, and to communicate the terms of the Plan and any material
amendments thereto to the Eligible Employees and Participants;
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(l) To delegate such of its powers and authorities (including the
power and authority to delegate) to such person or persons, with
his, her, its or their consent, as the Committee may appoint; and
(m) To do all other things the Committee deems necessary or desirable
for the advantageous administration of the Plan and to make the
Plan fully effective in accordance with its terms and intent.
8.2 Claims for Benefits. In the event that a Participant or Beneficiary
claims to be eligible for benefits, or claims any rights hereunder, he
must complete and submit such claims forms and supporting documentation
as shall be required by the Committee, in its sole discretion. The
Committee shall, by Rule, establish procedures (including appeals) for
considering and deciding claims.
8.3 Receipt and Release of Necessary Information. In implementing the terms
of this Plan, the Committee may, without the consent of or notice to
any person, release to or obtain from any other organization or person
any information, with respect to any person, which the Committee deems
to be necessary for such purposes. Any Participant or Beneficiary
claiming benefits under this Plan shall furnish to the Committee such
information as may be necessary to determine eligibility for and amount
of benefit, as a condition of claiming and receiving such benefit.
8.4 Overpayment and Underpayment of Benefits. The Committee may adopt, in
its sole discretion, whatever rules, procedures and accounting
practices are appropriate in providing for the collection of any
overpayment of benefits. If a Participant or Beneficiary receives an
underpayment of benefits, the Committee shall direct that immediate
payment be made to make up for the underpayment. If an overpayment is
made to a Participant or Beneficiary, for whatever reason, the
Committee may, in its sole discretion, withhold payment of any further
benefits under the Plan until the overpayment has been collected or may
require repayment of benefits paid under this Plan without regard to
further benefits to which the Participant or Beneficiary may be
entitled.
ARTICLE IX
OTHER BENEFIT PLANS OF THE COMPANY
9.1 Other Plans. Nothing contained in this Plan shall prevent a Participant
prior to his death, or his Beneficiary after his death, from receiving,
in addition to any payments provided for under this Plan, any payments
provided for under any other plan or benefit program of an Employer, or
which would otherwise be payable or distributable to the Participant or
Beneficiary under any plan or policy of an Employer or otherwise.
Nothing in this Plan shall be construed as preventing the Company or
any Affiliate from establishing any other or different plans providing
for current or deferred compensation for employees. Benefits provided
under this Plan shall not constitute earnings or compensation for
purposes of determining contributions or benefits under any plan of the
Company
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intended to "qualify" under Section 401 of the Code, unless specifical-
ly provided otherwise in such plan.
ARTICLE X
AMENDMENT AND TERMINATION OF THE PLAN
10.1 Amendment and Termination. The Committee may amend or terminate this
Plan at any time and in its sole discretion, by (and only by) written
resolution. Any such amendment or termination shall be binding on the
Employers and all Participants and their Beneficiaries, even though it
may be retroactive and applicable to Participants whose employment by
the Company or an Employer has terminated. The Committee may amend any
Rule at any time. However, no amendment or termination of the Plan and
no amendment of a Rule shall adversely affect the right of a
Participant to payment of a benefit to which the Participant would be
entitled (then or thereafter) under the terms of the Plan if the
Participant's employment terminated immediately before the adoption of
such amendment or termination of the Plan or Rule, unless such
amendment or termination of the Plan or amendment of the Rule in the
reasonable judgment of the Committee is required to comply with
applicable law or to preserve the tax treatment of benefits under this
Plan for the Employers or for the Participant, or is consented to by
the affected Participant. Following the occurrence of a CIC Event, no
amendment of the Plan or of any Rule may be made without the written
consent of the Board, except for amendments necessary to comply with
applicable law.
10.2 Continuation. The Company intends to continue this Plan indefinitely,
but nevertheless assumes no contractual obligation beyond the promise
to pay the benefits described in this Plan to its Employees.
ARTICLE XI
MISCELLANEOUS
11.1 No Reduction of Employer Rights. Nothing contained in this Plan shall
be construed as a contract of employment between the Company or any
Affiliate and an employee, or as a right of any person to be continued
in the employment of the Company or any Affiliate, or as a limitation
of the right of the Company or an Affiliate to discharge any of its
employees, with or without cause.
11.2 Indemnification. The Company hereby indemnifies each member of the
Committee and each employee who is delegated responsibilities under the
Plan against any and all liabilities and expenses, including attorney's
fees, actually and reasonably incurred by them in connection with any
threatened, pending or completed legal action or judicial or
administrative proceeding to which they may be a party, or may be
threatened to be made a party, by reason of membership on such
Committee or due to a delegation of responsibilities, except with
regard to any matters as to which they shall be adjudged in such action
or proceeding to be liable for gross negligence or willful misconduct
in connection therewith.
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11.3 Successors. All obligations of an Employer under this Plan shall be
binding on any successor to such Employer, whether the existence of
such successor is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Employer.
13
EXHIBIT 5
---------
October 29, 1999
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, TX 75024
Gentlemen:
As General Counsel of Electronic Data Systems Corporation, a Delaware
corporation ("EDS"), I am familiar with the Registration Statement on Form S-8
being filed by EDS pursuant to the Securities Act of 1933, as amended (the
"Act"), with the Securities and Exchange Commission, relating to 3,060,000
shares (the "Shares") of common stock, par value $.01 per share, of EDS pursuant
to the EDS Executive Deferral Plan (the "Plan").
In connection with the foregoing matters, I have examined originals, or
copies certified or otherwise identified to me, of corporate records of EDS and
other documents, records and instruments as a basis for this opinion.
Based on the foregoing, I am of the opinion that:
1. The Shares authorized for issuance pursuant to the Plan as currently in
effect have been duly authorized for issuance by EDS.
2. The Shares, when issued pursuant to the Plan in accordance with Delaware
law and upon payment of adequate consideration therefor, will be validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the General Corporation Law of the
State of Delaware, and I express no opinion as to the laws of any other
jurisdiction.
I hereby consent to the filing of this opinion as Exhibit 5 to the
above-mentioned Registration Statement. In giving such consent, I do not thereby
admit that I am in the category of persons whose consent is required under
Section 7 of the Act.
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.
/s/ KPMG LLP
Dallas, Texas
October 28, 1999
