exv10w39



 







Exhibit 10.39




Perot Systems Corporation

1991 Stock Option Plan

Amended and Restated Stock Option Agreement

Non-Qualified Stock Option Grant




This Amended and Restated Stock Option Agreement (this “Agreement”) amends, restates and

replaces the Stock Option Agreement dated October 23, 2000 (the “Original Agreement”),

between Perot Systems and you. This Agreement amends the terms of the Original

Agreement effective on the date of the last signature below. This Agreement is not

valid until properly executed by both parties, with an original copy delivered to Perot

Systems.




	 	 	 
	Participant:
	 	Ross Perot, Jr.
	Employee ID:
	 	18930
	Effective Date:
	 	October 23, 2000
	Option Shares:
	 	950,000
	Option Date:
	 	October 23, 2000
	Option Price and	 	 	 	 
	Vesting Schedule:	 	 	 	 






	 	 	 	 	 	 	 	 	 
	Vesting Date	 	Option Shares	 	Price
	October 23, 2001
	 	 	190,000	 	 	$	9.50	 
	October 23, 2002
	 	 	190,000	 	 	$	9.50	 
	October 23, 2003
	 	 	190,000	 	 	$	9.50	 
	October 23, 2004
	 	 	190,000	 	 	$	9.50	 
	October 23, 2005
	 	 	190,000	 	 	$	9.94	 






	 	 	 
	Expiration Date:

	 	Eleven years after the Effective Date, unless terminated earlier under the
Agreement or the Plan.






By signing this Agreement, the Participant:





	 	•	 	Agrees to be bound by the terms of this Agreement and the Plan;
	 
	 	•	 	Acknowledges receiving an electronic or paper copy of (1) the Plan, (2) the Prospectus
for the Plan, and (3) Perot Systems’ most recent Annual Report on Form 10-K; and
	 
	 	•	 	Consents to receiving delivery of the all future communications and required documents
relating to the Plan or this Agreement via TRAIN or other electronic transmission.





	 	 	 	 	 	 	 	 	 	 	 
	Ross Perot, Jr.	 	 	 	PEROT SYSTEMS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature:

	 	/s/ Ross Perot, Jr.
	 	 	 	By:
	 	/s/ Thomas D. Williams
	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name: Thomas D. Williams	 	 
	Date: 12-22-2006	 	 	 	 	 	Title: Vice President and General Counsel	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Date: December 27, 2006	 	 






 









 






	1.	 	Certain Definitions. As used in this Agreement, the following terms have the
meanings indicated:






	 	(a)	 	“Agreement” means this Amended and Restated Stock Option Agreement between
Perot Systems and Participant.
	 
	 	(b)	 	“Committee” means the Board of Directors of Perot Systems or the committee of
the Board, Chief Executive Officer or other officer of Perot Systems appointed to
administer or to have authority with respect to the Plan.
	 
	 	(c)	 	“Common Stock” means the Class A Common Stock, $.01 par value per share, of
Perot Systems.
	 
	 	(d)	 	“Company” means Perot Systems and its majority-owned subsidiaries.
	 
	 	(e)	 	“Confidential Information” means all written, machine reproducible, oral and
visual data, information and material, including but not limited to the terms of this
Agreement and the Plan, business, financial and technical information, computer
programs, documents and records (including those that Participant develops in the scope
of his or her employment) that (i) the Company or any of its customers or suppliers
treats as proprietary or confidential through markings or otherwise, (ii) relates to the
Company or any of its customers or suppliers or any of their business activities,
products or services (including software programs and techniques) and is competitively
sensitive or not generally known in the relevant trade or industry, or (iii) derives
independent economic value from not being generally known to, and is not readily
ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use. Confidential Information does not include any information or material
that is approved by Perot Systems for unrestricted public disclosure.
	 
	 	(f)	 	“Effective Date” means the date set forth on the first page of this Agreement,
which relates back to the effective date of the Original Agreement.
	 
	 	(g)	 	“Expiration Date” means the date and time as of which the Option expires, which
is the earlier of (i) the close of business on the eleven years after the Effective
Date, or (ii) the date and time as of which all rights to exercise the Option are
terminated under Section 2(d).
	 
	 	(h)	 	“Market Value” of a share of Purchased Stock on a given date means the closing
sale price for Purchased Stock, as determined in good faith by the Board of Directors,
on such date or, if no closing sale price is available for such date, on the most
recent prior date for which a closing sale price is available or, if no closing sale
price is available, the closing bid price, as so determined, on such date or, if no
closing bid price is available for such date, the closing bid price on the most recent
prior date for which a closing bid price is available.





					
	 	 	 	 	 
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	 	Stock Option Agreement






 









 







	 	(i)	 	“Net Investment Proceeds,” with respect to any share of Purchased Stock sold or
otherwise transferred by Participant or Participant’s successor in interest, means the
greater of the value of the gross proceeds received for such share or the Market Value
of such share on the date of sale or transfer less, in either case, (i) the exercise
price of the Option for such share plus simple interest on such amount at the rate of 8%
per annum to the date of the sale or transfer, (ii) any reasonable and customary
commission paid for the sale or transfer, and (iii) the verified amount of any income
taxes paid or payable on the sale.
	 
	 	(j)	 	“Option” means the right and option evidenced by this Agreement.
	 
	 	(k)	 	“Participant” means the individual named on the first page of this Agreement.
	 
	 	(l)	 	“Perot Systems” means Perot Systems Corporation, a Delaware corporation.
	 
	 	(m)	 	“Plan” means Perot Systems’ 1991 Stock Option Plan, as amended and restated as of
March 23, 2000, as further amended from time to time.
	 
	 	(n)	 	“Purchased Stock” means any Common Stock purchased upon the exercise of this
Option, together with any successor security, property or cash issued or distributed by
Perot Systems or any successor entity, whether by way of merger, consolidation, share
exchange, reorganization, liquidation, recapitalization or otherwise.
	 
	 	(o)	 	“Termination for Substantial Misconduct” means termination of employment for
conduct resulting in a felony conviction of the Participant; actions involving moral
turpitude, theft, or dishonesty in a material matter; breach of any obligation under
Section 5 of this Agreement; or failure by Participant to carry out the directions,
instructions, policies, rules, regulations, or decisions of the Board of Directors of
Perot Systems including, without limitation, those relating to business ethics and the
ethical conduct of the business of the Company.
	 
	 	(p)	 	“Total Disability” of Participant means a mental or physical disability of the
Participant that the Committee, in its sole discretion, determines will permanently
prevent the Participant from performing the duties of his or her current occupation with
the Company or any other reasonable occupation (suitable for a person in good health
having the Participant’s educational background, employment history, training, and
skills) with the Company or any other employer, but does not include any condition that
the Committee, in its sole discretion, determines to have resulted from the
Participant’s use of alcohol, drugs, or other chemical substances, or from actions taken
by Participant with the intention of causing self-injury or with reckless disregard for
personal health and safety.





					
	 	 	 	 	 
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	 	Stock Option Agreement






 









 






	 	(q)	 	“Transfer” or “transfer” or derivations thereof includes any sale, assignment,
gift, exchange or any other disposition (other than dispositions caused by the
foreclosure on a pledge, encumbrance, hypothecation, or mortgage where the successor
holder remains subject to the transfer restrictions stated in this Agreement).
	 
	 	(r)	 	“Vesting,” or “vesting” or derivations thereof with respect to any Option issued
under this Agreement, means receiving the right to exercise the Option.
	 
	 	(s)	 	“Vesting Period” means the period of time commencing on the Effective Date of
this Agreement and ending on the date on which the entire Option has Vested.






	2.	 	Grant of Option; Exercise of Option; Purchase of Stock.






	 	(a)	 	Subject to the terms, conditions, and restrictions set forth in the Plan (which
is incorporated herein by reference) and this Agreement, Perot Systems hereby grants to
Participant, and Participant hereby accepts from Perot Systems, the option to purchase
from Perot Systems






(i) the number of shares of Common Stock specified as the “Option Shares” on the
first page of this Agreement,




(ii) at the purchase price per share of Common Stock specified as the “Exercise
Price” on the first page of this Agreement,




(iii) which option will Vest in Participant in accordance with the Vesting Schedule
specified on the first page of this Agreement.




The Option shall continue to Vest only for so long as Participant is an employee of
Company or has a Total Disability, unless the Committee, in its sole discretion,
agrees in writing otherwise; provided, that if the Participant ceases to be an
employee by reason of the Participant’s death or dies while having a Total
Disability, the Option shall immediately Vest in full. Participant will have the
right to exercise the Vested Option and purchase Common Stock after the Option Vests
as provided in Section 2(d) below.




	 	(b)	 	The purchase price of shares as to which the Option is exercised must be paid
to Perot Systems at the time of the exercise either in cash or in such other
consideration as the Committee may approve having a total fair market value, as
determined by the Committee, equal to the purchase price, or a combination of cash and
such other consideration.
	 
	 	(c)	 	The Committee may elect to assist Participant in satisfying an obligation to
pay or withhold taxes required as a result of the exercise of this Option by accepting
 shares of Purchased Stock at Market Value to satisfy the tax obligation. The






					
	 	 	 	 	 
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	 	Stock Option Agreement






 









 






	 	 	 	shares of Purchased Stock accepted may be either shares withheld upon the exercise
of this Option or other shares already owned by Participant. In determining whether
to approve acceptance of Purchased Stock to satisfy such a tax obligation, the
Committee may consider whether the shares proposed to be delivered are subject to
any holding period or other restrictions on transfer and may waive or arrange for
the waiver of any such restrictions.
	 
	 	(d)	 	The Option is only exercisable as to Vested Options. Once Vested, the Option
may be exercised until the Expiration Date, provided, however, if the Participant
ceases to provide services to the Company in any capacity, whether as a director,
officer, employee or consultant, be an employee for any reason other than death or
Total Disability, the Option may be exercised only for ninety days after the date
Participant ceases to provide services to the Company, and in any case no later than
the Expiration Date.
	 
	 	(e)	 	The Option is exercisable by delivery of an exercise notice, in the form and
format and by the method approved by Perot Systems’ stock administrator, which form and
format may be electronic and solely available by access through Perot Systems internal
computer network, which notice will state the election to exercise the Option, the
number of Vested shares of Common Stock with respect to which the Option is being
exercised, and such other representations and agreements as may be required by the
Company in accordance with the terms of the Plan. The Option will be deemed to be
exercised upon receipt by the Company of such exercise notice and the purchase price of
the Vested shares of Common Stock as to which the Option is exercised, provided that
Participant has concurrently made adequate provision for fulfilling all applicable tax
withholding requirements and other tax obligations. If the Company in its sole
discretion determines that it is necessary or desirable to withhold any amounts for
taxes on Participant’s behalf, Participant shall reimburse the Company for such amounts
immediately after being notified of them. If Participant does not reimburse the Company
for such amounts, the Company may in its sole discretion either (i) recover such
amounts by selling or canceling at Market Value sufficient shares of any Purchased
Stock held by Participant or (ii) rescind the exercise.






	3.	 	Restrictions on Transfer. The Option may not be sold or otherwise transferred except
(a) by will or the laws of descent and distribution, (b) with the written consent of the
Committee, or (c) in a gratuitous transfer permitted under SEC Form S-8 to any one or more of
the following permitted transferees (i) any one or more of Participant’s Family Members; (ii)
a custodian, trustee, executor or other fiduciary in a custodial account, trust or other
arrangement in which Participant and/or one or more Family Members of Participant collectively
retain more than 50% of the beneficial interest; or (iii) a partnership, corporation, limited
liability company or other entity in which Participant and/or one or more Family Members of
Participant collectively retain more than 50% of the voting interests. For purposes of this
Agreement, the term “Family Member” shall mean a spouse, former spouse, grandparent, parent,
stepparent, parent of a spouse,






					
	 	 	 	 	 
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	 	Stock Option Agreement






 









 






	 	 	child, stepchild, spouse of a child, grandchild, sibling, spouse of a sibling, niece, or
nephew, and shall include adoptive relationships. The Option may be exercisable only by:
Participant; a Permitted Transferee; the executors or administrators of Participant’s estate
or a Permitted Transferee’s estate following his or her death; or the guardian of
Participant’s property or a Permitted Transferee’s property if one is appointed by reason of
Participant’s or a Permitted Transferee’s Total Disability. For purposes of this Agreement,
references to Participant shall be deemed to include another person who is exercising the
Option in accordance with this Section 3 or to whom the Option has been transferred in
accordance with this Section 3. Perot Systems is not obligated to recognize any purported
sale, other transfer, or exercise of the Option in violation of this Section 3 and; unless
it elects to do otherwise, may treat any such purported sale, other transfer, or exercise as
null, void, and of no effect.
	 
	4.	 	Rights to Buy Back Purchased Stock and to Require Payback of Certain Profits.






	 	(a)	 	If the Committee discovers that Participant has engaged in any conduct
prohibited by Section 5 or if Participant ceases to be employed by the Company and the
Committee, in its sole discretion, determines that Participant’s cessation of
employment resulted from a Termination for Substantial Misconduct or would have
resulted in a Termination for Substantial Misconduct had the relevant facts been known
at the time of Participant’s cessation of employment, Perot Systems will have the right
for 150 days after the Committee discovers the relevant facts to cancel any unexercised
Option, whether or not Vested, and to buy back from Participant any shares of Purchased
Stock then owned by Participant, at a purchase price equal to the price per share paid
by Participant for the shares plus simple interest on such amount at the rate of 8% per
annum from the date of payment by Participant to the date of tender of payment by Perot
Systems as set forth in Section 4(b) below, and the right to require Participant to pay
back to Perot Systems in cash the Net Investment Proceeds with respect to any shares of
Purchased Stock that have been sold or otherwise transferred by Participant.
	 
	 	(b)	 	Whenever Perot Systems has a right to buy back shares of Purchased Stock or to
require Participant to pay back to Perot Systems Participant’s Net Investment Proceeds
with respect to any shares of Purchased Stock under this Section 4, Perot Systems may
exercise its right by notifying Participant or the subsequent holder of Perot Systems’
election to exercise its right within the designated exercise period. The giving of
such notice will give rise to an obligation on the part of Participant or the
subsequent holder to tender to Perot Systems, within 10 days, any previously issued
certificate representing shares of Purchased Stock to be bought back, duly endorsed in
blank or having a duly executed stock power attached in proper form for transfer. If
any such certificate is not tendered within 10 days, Perot Systems may cancel any
outstanding certificate representing shares to be bought back. Perot Systems is
required to tender the purchase price for shares to be bought back under this Section 4
within 20 days of giving notice of its election to exercise its right to buy back
 shares. If the person from whom the shares are to be bought back has not complied with
an obligation to return a






					
	 	 	 	 	 
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	 	6
	 	Stock Option Agreement






 









 






	 	 	 	certificate representing shares to be bought back, however, Perot Systems is not
required to tender the purchase price until 20 days after the certificate is
returned or 20 days after it cancels the certificate, whichever occurs first.






	5.	 	Non-Competition and Non-Disclosure. Participant acknowledges that: (i) in the course
and as a result of employment with the Company, Participant will obtain special training and
knowledge and will come in contact with the Company’s current and potential customers, which
training, knowledge, and contacts would provide invaluable benefits to competitors of the
Company; (ii) the Company is continuously developing or receiving Confidential Information,
and that during Participant’s employment he or she will receive Confidential Information from
the Company, its customers and suppliers and special training related to the Company’s
business methodologies; and (iii) Participant’s employment by Company creates a relationship
of trust that extends to all Confidential Information that becomes known to Participant.
Accordingly, and in consideration of Perot Systems’ granting this Option to Participant,
Participant agrees that Perot Systems will be entitled to terminate all rights to exercise the
Option and to exercise the rights specified in Section 4 above if Participant does any of the
following without the prior written consent of the Company:






	 	(a)	 	while employed by the Company or within one year thereafter:






	 	(i)	 	competes with, or engages in any business that is competitive
with, the Company within 250 miles of any location at which Participant was
employed by or provided services to the Company;
	 
	 	(ii)	 	solicits or performs services, as an employee, independent
contractor, or otherwise, for any person (including any affiliates or
subsidiaries of that person) that is or was a customer or prospect of the
Company during the two years before Participant’s employment with the Company
ended if Participant solicited business from or performed services for that
customer or prospect while employed by Company; or
	 
	 	(iii)	 	recruits, hires, or helps anyone to recruit or hire anyone who
was an employee of Perot Systems, or of any of its customers for whom
Participant performed services of from whom Participant solicited business,
within the six months before Participant’s employment with the Company ended;
or






	 	(b)	 	discloses or uses any Confidential Information, except in connection with the
good faith performance of Participant’s duties as an employee or, solely with respect
to the terms of this Agreement or the Plan, to Participant’s spouse; or fails to take
reasonable precautions against the unauthorized disclosure or use of Confidential
Information; or fails, upon Perot Systems’ request, to execute and comply with a third
party’s agreement to protect its confidential and proprietary information; or solicits
or induces the unauthorized disclosure or use of






					
	 	 	 	 	 
	1991 Stock Option Plan
	 	7
	 	Stock Option Agreement






 









 






	 	 	 	Confidential Information.






If any court of competent jurisdiction finds any provision of this Section 5 to be
unreasonable, then that provision shall be considered to be amended to provide the broadest
scope of protection to the Company that such court would find reasonable and enforceable.




	6.	 	Stock Certificates; Rights as Shareholder. Each certificate representing shares of
Purchased Stock will bear such legends as the Committee determines are necessary or
appropriate. Whether or not certificates representing shares of Purchased Stock have been
issued or delivered, Participant will have all the rights of a shareholder of Purchased Stock,
including voting, dividend and distribution rights, with respect to shares of Purchased Stock
owned by Participant. Participant will not have any rights as a shareholder with respect to
any shares of Purchased Stock subject to the Option before the date of issuance to Participant
of shares upon exercise of the Option.
	 
	7.	 	Compliance with Plan. If the provisions of the Plan are inconsistent with the
provisions of this Agreement, the provisions of the Plan supersede the provisions of this
Agreement.
	 
	8.	 	Notices.






	 	(a)	 	All notices or other communications relating to this Plan or any other matter
relating to this Agreement given to the Committee, Perot Systems, or any Company will
be deemed delivered on the day the notice or other communication is received in
tangible written form by the Stock Administrator at Perot Systems’ corporate
headquarters address, provided that such notice is in the form specified by Perot
Systems.
	 
	 	(b)	 	All notices or other communications relating to this Plan or any other matter
relating to this Agreement given to a Participant by the Committee, Perot Systems, or
any Company will be deemed delivered on the first day the notice or other communication
is (1) personally delivered to that person, (2) electronically transmitted to a person
who on the date of that transmission either is an employee of any Company or has
consented to receiving notices by electronic transmission to the last known electronic
transmission address of that person, provided that an acknowledgement of receipt is
returned, or (3) placed in the official government mail of the country of the sender in
an envelope with proper postage paid addressed to the last known address of that person
as reflected in Perot Systems’ personnel or stock records.
	 
	 	(c)	 	Either party may at any time change its address for notification purposes by
giving the other written notice of the new address and the date upon which it will
become effective.






					
	 	 	 	 	 
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	 	Stock Option Agreement






 









 






	 	(d)	 	Consent to Electronic Delivery of Notices,
Plan Documents and Prospectuses. By executing this
Agreement, the Participant will be deemed to consent to receiving copies of all notices
and other communications relating to the Plan and this Agreement by electronic
transmission, including but not limited to the Prospectus relating to the Plan, all
participation materials, and all other documents required to be delivered in connection
with the Plan. Upon request, Perot Systems will provide any such documents to the
Participant in tangible written form.






	9.	 	Remedies. Perot Systems is entitled, in addition to any other remedies it may have at
law or in equity, to temporary and permanent injunctive and otherwise equitable relief to
enforce the provisions of this Agreement. Any action to enforce the provisions of, or
otherwise relating to, this Agreement may be brought in the state or federal courts having
jurisdiction in Dallas, Dallas County, Texas. By signing this Agreement, Participant consents
to the personal jurisdiction of such courts in any such action.
	 
	10.	 	Assignment. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, personal representatives, successors, and assigns.
However, Participant does not have the power or right to assign this Agreement without the
prior written consent of Perot Systems.
	 
	11.	 	Attorneys’ Fees. If any legal proceeding is brought to enforce or interpret the terms
of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs,
and necessary disbursements in addition to any other relief to which that party may be
entitled.
	 
	12.	 	Severability. If any provision of this Agreement is held invalid or unenforceable for
any reason, the validity and enforceability of all other provisions of this Agreement will not
be affected.
	 
	13.	 	Headings. The section headings used herein are for reference and convenience only and
do not affect the interpretation of this Agreement.
	 
	14.	 	Governing Law. This Agreement shall be governed by and construed in accordance with
the law of the State of Texas, without regard to the choice of law rules in such law. This
Agreement shall be deemed to have been entered into and wholly performed in Dallas County,
Texas. Venue of any disputes relating to this Agreement shall be in Dallas County, Texas. This
Agreement has been written in English, which language will control in all respects. No
translation of this Agreement into any other language will be of any force or effect in its
interpretation or in a determination of the intent of either party. Each party waives, to the
maximum extent permitted by applicable law, any right it may have under the laws of any
country or other jurisdiction to have this Agreement written in any other language.






					
	 	 	 	 	 
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	 	Stock Option Agreement






 









 






	15.	 	Entire Agreement. This Agreement, together with the Plan and any procedure adopted by
the Committee thereunder, constitutes the entire agreement between the parties with respect to
its subject matter and may be waived or modified only in writing.
	 
	16.	 	Changes in Capitalization. If any change is made in the Common Stock (including, but
not limited to, changes resulting from a stock dividend, stock split, merger, consolidation,
reorganization, recapitalization, exchange of shares, change in corporate structure or other
transaction not involving the receipt of consideration by Perot Systems), the Committee will
equitably adjust the number of shares of Common Stock and the Exercise Price for those shares
that are subject to outstanding rights under this Agreement to preserve the rights of
Participant under this Agreement. The determination of the Committee with respect to any such
adjustments shall be final, binding and conclusive.
	 
	17.	 	No Guarantee of Continued Employment. Participant acknowledges and agrees that the
Vesting of shares of Common Stock under this Agreement is earned only while continuing service
to the Company as an employee at the will of the Company (and not through the act of being
hired, being granted an Option or purchasing shares under this Agreement). Participant further
acknowledges and agrees that this Agreement, the transactions contemplated hereunder and the
Vesting schedule set forth herein do not constitute an express or implied promise of continued
employment by the Company for the Vesting Period, for any period, or at all, and shall not
interfere with Participant’s right or the Company’s right to terminate Participant’s
employment relationship with the Company at any time, with or without cause.





 
					
	 	 	 	 	 
	1991 Stock Option Plan
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	 	Stock Option Agreement