As filed with the Securities and Exchange Commission on October 29, 1999
Registration Statement No. 333-84675
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
---------------
PRE-EFFECTIVE AMENDMENT NO. 2 TO
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
2727 North Harwood St. 5400 Legacy Drive
Dallas, TX 75201-1515 Plano, TX 75024-3199
--------------------------
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. [ ]
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, October 29, 1999
[GRAPHIC OMITTED -- EDS LOGO]
PROSPECTUS
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 October 28, 1999, the reported
last sale price of the common stock on the New York Stock
Exchange was $54 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
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Table Of Contents
Page
----
Where You Can Find More Information............................. 2
The Company..................................................... 3
Use of Proceeds................................................. 5
Background of the Offering...................................... 6
Selling Stockholder............................................. 6
Plan of Distribution............................................ 6
Legal Matters................................................... 7
Experts......................................................... 7
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 Reports on Form 10-Q for the quarters ended March 31 and
June 30, 1999;
- Current Reports on Form 8-K dated April 29, May 6, September 7, and
October 28, 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
telephoning 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.
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The Company
EDS, a leader in the global information technology services industry
for more than 35 years, delivers high-value consulting, electronic business
solutions, business process management, and systems and technology expertise to
thousands of business and government clients around the world.
In September 1999, we announced the realignment of our organization on
a global basis along the following four lines of business: information
technology (IT) outsourcing, served by our Information Solutions unit; business
process management, served by our Business Process Management unit; solutions
consulting, served by our E.solutions unit; and high-value consulting, served by
our A.T. Kearney subsidiary.
As of August 31, 1999, we employed approximately 125,000 persons and
served clients in the United States and approximately 50 other countries. We are
incorporated under the laws of the State of Delaware. Our principal executive
offices are located at 5400 Legacy Drive, Plano, Texas 75024, telephone number:
(972) 604-6000.
Information Solutions
Information Solutions, our largest line of business, encompasses our
traditional information technology outsourcing business. Information Solutions
includes network and system operations, data management, applications
development, and field services, as well as Internet hosting environments and
web site management. Our capabilities help clients align IT and operations with
business strategy while ensuring predictable performance and costs. We have been
a leader in the IT services industry for over 35 years.
Our Information Solutions services include:
- Centralized Systems Management. We offer data processing services for
stand-alone, midrange or high-end systems physically located in one or
more controlled environments. This includes management services for
traditional application processing environments, as well as specialized
services such as web site hosting and data warehousing. These services
help clients reduce risk, facilitate cost-effective growth, improve
delivery, efficiency and quality, and enhance client-to-customer
relationships.
- Distributed Systems Management. We offer end-to-end services to plan,
deploy, operate and refresh an enterprise's total distributed
environment. This includes traditional laptop and desktop environments,
as well as the emerging thin client model supported by network-based
applications (often referred to as apps on taps). Benefits to clients
for these services may include reduced cost of ownership, increased
return on investment, transformation of PCs into information tools,
increased speed to market and enhanced flexibility in business
operations.
- Communications Management. We define, develop and manage consistent
voice, video, data, multi-service and other global communications
services. These services facilitate electronic commerce, increase
competitiveness and market opportunities, and improve information
sharing through a client's supply and demand chain.
- Application Services. We offer applications development and management
services on an outsourced or out-tasked basis. These services range
from outsourcing of all application development and management to
implementation and management of EDS-owned or third party industry
applications. Benefits to clients for these services include reduced
costs, extended value of technology investments, information sharing
and enhanced ability to adapt to market changes.
We operate large-scale service management centers, or SMCs, throughout
the United States and in Australia, Brazil, Canada, France, Germany, the
Netherlands, Spain and the United Kingdom. We also operate smaller service
delivery centers at customer locations or EDS facilities throughout the world.
These processing
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centers generally support a single or small number of customers with more
specialized requirements than those supported at SMCs.
Information Solutions accounted for a substantial majority of our
revenues in 1998, and we expect Information Solutions to continue to account for
a majority of our revenues in 1999.
Business Process Management
Business Process Management, or BPM, is the outsourcing of one or more
business processes or functions to an external provider to improve overall
business performance. EDS is a leader in the BPM market, offering services
designed to help clients enter new global markets, get products to market
faster, manage customer and supplier relationships, and reduce costs.
Our BPM services include:
- Enterprise Customer Management. A client may outsource customer care
or relationship management to EDS to develop individual customer
relationships, build brand loyalty, and improve customer acquisition,
retention, and lifetime value. We are a leader in this industry,
offering total enterprise customer management solutions, including call
centers, client loyalty programs, product fulfillment, data mining, and
database marketing services. We also offer document processing
services.
- Claims Processing. We develop key processes to help governments and
insurance companies manage claims payments and other transactions. With
more than 30 years experience in this area, we provide end-to-end
service for state health and Medicare programs. Additional services
include fraud and abuse detection systems, drug rebate programs,
utilization review, and decision support systems. We also support state
programs for children and the elderly, as well as public safety, law
enforcement, and student loan programs.
- Settlement Processing. We offer a full range of scalable services that
enable clients to bridge the gap between paper and electronic banking
environments. Services are aimed at merchants, banks, loan
institutions, and credit card issuers. Offerings include ATM and kiosk
transaction processing, check processing, remittance processing,
relocation services, debit authorizations and gateway services.
E.solutions
We established the E.solutions line of business in May 1999 to combine
our electronic business capabilities into a single business unit to address this
growing market. E.solutions includes the consulting, implementation, and
solutions management capabilities of our former electronic business, CIO
Services, human performances, enterprise solutions, and business intelligence
services units, as well as elements of the Systemhouse business that we acquired
in April 1999. We offer e.strategy, solutions consulting, systems integration,
implementation and hosting services on a global basis.
Our E.solutions services include:
- Internet Solutions. We provide web-enabled solutions for business-to-
business and business-to-consumer activities, including e.strategy,
e.sales, e.marketing, portals, e.procurement, and security services.
- Enterprise Application Services. We offer solutions that leverage
internet technology and leading enterprise business software to
increase our clients' efficiency throughout their value chain, helping
our clients communicate with their suppliers and customers more
efficiently. These services include enterprise application integration,
enterprise resource planning (ERP), supply chain management, customer
relationship management, application hosting and management, and
knowledge solutions/business intelligence.
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- Performance Services. We provide consulting services in the following
areas: IT infrastructure planning, program management, and enterprise
management software services.
- E.communities. We provide trading partners with the capabilities for
electronic exchange of information, trading transactions and financial
settlement.
A.T. Kearney
A.T. Kearney, a leading global management consultancy, which became a
subsidiary of EDS in 1995, provides clients with high value-added management
consulting services, including strategy, strategic information technology,
organization and operations consulting, as well as executive search services.
A.T. Kearney addresses top management and CEO issues through delivery of
leading-edge solutions to complex problems.
The firm serves clients through practice teams focused on major
industries, including automotive, consumer products and retail, financial
institutions, and communications/high technology, as well as aerospace and
defense, transportation, utilities, energy, health care and pharmaceuticals.
A.T. Kearney's services include:
- Strategy Consulting. A.T. Kearney's global Strategy Practice includes
a broad spectrum of services from traditional corporate and business
unit strategy and industry restructuring to experience in performance
measurement and e.business strategy. The practice helps clients turn
strategy into action, viewing strategy as the design of the entire
business system and an integrated set of actions to continuously
create and redefine competitive advantage.
- Strategic Information Technology Consulting. A.T. Kearney's Strategic
IT Consulting Practice provides insight, planning and operational
improvement/implementation services for clients. The practice focuses
on technology enabled business transformation. It assists clients in
achieving business results by improving their ability to leverage
and use IT or formulating results-oriented business strategies in which
IT plays a central role.
- Organization Consulting. The Organization Consulting Practice focuses
on change management, enterprise transformation, business reengineering
and HR management.
- Operations Consulting. A.T. Kearney's Operations Consulting Practice
involves all phases of operations, including sourcing, manufacturing,
supply chain management, and negotiations. It is linked with A.T.
Kearney's strategy, IT and industry practices.
Revenues
Our fees are generally paid pursuant to contracts with our clients,
which may provide for both fixed and variable fee arrangements. The terms of our
client contracts range from less than one year in the high-value consulting
business to up to ten years in our IT outsourcing business. Other than General
Motors Corporation, no one client accounted for more than 5% of our total
revenues in 1996, 1997 or 1998. Approximately 39% of our 1998 revenues were
generated outside the United States.
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.
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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
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's 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. 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 October 28, 1999, the Hourly Plan Special Trust beneficially owned
81,047,272 shares of common stock, representing approximately 17.2% 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
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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 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.
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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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following are the estimated expenses of the issuance and
distribution of the securities being registered, all of which are payable by
EDS.
Securities and Exchange Commission registration fee... $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.
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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.
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
advancement of expenses provided by, or granted pursuant to, Section 145 shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 145(g) of the DGCL provides that a corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his capacity as such, whether or not the corporation
would have the power to indemnify him against such liability under Section 145.
Restated Certificate of Incorporation
Article Seventh of the Restated Certificate of Incorporation of EDS
provides that no director of EDS shall be personally liable to EDS or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
involving any act or omission of any such director; provided, however, that such
Article Seventh does not eliminate or limit the liability of a director (1) for
any breach of such director's duty of loyalty to EDS or its stockholders, (2)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) under Section 174 of the DGCL (which relates
to certain unlawful dividend payments or stock purchases or redemptions), as the
same exists or may hereafter be amended, supplemented or replaced, or (4) for a
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of EDS, in addition to
the limitation on personal liability described above, shall be limited to the
fullest extent permitted by the DGCL, as so amended. Furthermore, any repeal or
modification of Article Seventh of the Restated Certificate of Incorporation by
the stockholders of EDS shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of EDS existing at
the time of such repeal or modification.
Bylaws
Article VI of the Amended and Restated Bylaws of EDS provides that each
person who at any time shall serve or shall have served as a director, officer,
employee or agent of EDS, or any person who, while a director, officer, employee
or agent of EDS, is or was serving at the written request of EDS (in accordance
with written procedures adopted from time to time by the Board of Directors of
EDS) as a director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic corporation,
partnership,
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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.
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.
11
<PAGE>
Item 16. Exhibits.
The following documents are exhibits to the Registration Statement.
Exhibit
Number Description
------- -----------
4(a) Restated Certificate of Incorporation of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incorporated
herein by reference to Exhibit 3(a) to the Current Report on Form
8-K of the Registrant dated June 7, 1996.
4(b) Amended and Restated Bylaws of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incorporated
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 (previously filed)
23(a) Consent of KPMG LLP, independent auditors
23(b) Consent of D. Gilbert Friedlander (previously filed)
24 Powers of Attorney (previously filed)
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to the registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. 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
registration 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
12
<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 amendment
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 incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
13
<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 29th day of October,
1999.
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ RICHARD H. BROWN
------------------------------
Richard H. Brown
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on October 29,
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)
* President, Chief Operating Officer and
- ------------------------------------- Director
Jeffrey M. Heller
* 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
14
<PAGE>
* Director
- -------------------------------------
James A. Baker, III
* Director
- -------------------------------------
Richard B. Cheney
* Director
- -------------------------------------
Ray J. Groves
* Director
- -------------------------------------
Ray L. Hunt
* Director
- -------------------------------------
C. Robert Kidder
* Director
- -------------------------------------
Judith Rodin
* Director
- -------------------------------------
Enrique J. Sosa
* Director
- -------------------------------------
William H. Gray, III
* By: /s/ RICHARD H. BROWN
----------------------------
Richard H. Brown
Attorney-in-fact
15
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit
Number Description
------- -----------
4(a) Restated Certificate of Incorporation of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incorporated
herein by reference to Exhibit 3(a) to the Current Report on Form
8-K of the Registrant dated June 7, 1996.
4(b) Amended and Restated Bylaws of Electronic Data Systems
Corporation, as amended through June 7, 1996 - incorporated
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 (previously filed)
23(a) Consent of KPMG LLP, independent auditors
23(b) Consent of D. Gilbert Friedlander (previously filed)
24 Powers of Attorney (previously filed)
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
October 28, 1999
