INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “Agreement”) is made
and entered into as of
___, 2008, by and between Perot Systems Corporation, a Delaware
corporation (the “Company”), and
(the “Indemnitee”).
WHEREAS,
qualified persons are reluctant to serve organizations as directors
or officers or in other capacities unless they are provided with
adequate protection against risks of claims and actions against
them arising out of their service to and activities on behalf of
such organizations;
WHEREAS,
the parties hereto recognize that the legal risks and potential
liabilities, and the threat thereof, associated with lawsuits filed
against persons serving the Company and/or its subsidiaries, and
the resultant substantial time, expense and anxiety spent and
endured in defending lawsuits bears no reasonable relationship to
the compensation received by such persons, and thus poses a
significant deterrent and increased reluctance on the part of
experienced and capable individuals to serve the Company and/or its
subsidiaries;
WHEREAS,
the uncertainties related to obtaining adequate insurance and
indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS,
it is reasonable, prudent and necessary for the Company to
contractually agree to indemnify such persons to the fullest extent
permitted by law, so that such persons will serve or continue to
serve the Company and/or its subsidiaries free from undue concern
that they will not be adequately indemnified; and
WHEREAS,
the Indemnitee is willing to serve, continue to serve and to take
on additional service for an on behalf of the Company on the
condition that the Indemnitee is indemnified according to the terms
of this Agreement;
NOW,
THEREFORE, in consideration of the premises and of
Indemnitee’s agreement to provide services to the Company
and/or its subsidiaries and intending to be legally bound hereby,
the parties hereto agree as follows:
(a) Change in
Control : shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 30% or more of the total
voting power represented by the Company’s then outstanding
Voting Securities (other than a Perot Stockholder (as defined
below) or any such person or any affiliate thereof that is such a
30%
beneficial
owner as of the date hereof), or (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at
least 60% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of (in one transaction or a series of transactions) all or
substantially all the Company’s assets.
(b) Claim :
any threatened, pending or completed action, suit or proceeding
(including any mediation, arbitration or other alternative dispute
resolution proceeding), whether instituted by or in the right of
the Company or by any other party, or any inquiry or investigation
that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether civil
(including intentional and unintentional tort claims), criminal,
administrative, investigative or other.
(c)
Expenses : include attorneys’ fees and all other
costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable
Event.
(d)
Indemnifiable Event : any event or occurrence related to the
fact that Indemnitee is or was serving as [a member of the Board
of Directors] [an officer] of the Company, or is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise.
(e) Independent
Legal Counsel : a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the five years previous to the selection or appointment has
been, retained to represent: (i) the Company or Indemnitee in
any matter material to either such party or (ii) any other party to
the Claim for which Indemnitee is seeking indemnification hereunder
(other than with respect to matters concerning the rights of
Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements). Notwithstanding the foregoing, the
term “Independent Legal Counsel” shall not include any
person who, under applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
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(f) Perot
Stockholder : includes Ross Perot, Ross Perot, Jr., HWGA, Ltd.
or any of their respective Affiliates and Associates (as such terms
are defined in Rule 12b-2 of the Securities Exchange Act of
1934, as amended).
(g) Reviewing
Party : (i) member or members of the Company’s Board
of Directors who is not a party to the particular Claim, issue or
matter for which Indemnitee is seeking indemnification, or
(ii) Independent Legal Counsel.
(h) Voting
Securities : any securities of the Company which vote generally
in the election of directors.
2.
Basic Indemnification Arrangement .
(a) In the event
Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness
or other participant in, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty days after
written demand is presented to the Company, against any and all
Expenses, liabilities, losses, judgments, fines, excise taxes,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses, liabilities, losses, judgments, fines,
excise taxes, penalties or amounts paid in settlement) of such
Claim. If so requested by Indemnitee, the Company shall advance
(within ten business days of such request) any and all Expenses to
Indemnitee (an “Expense Advance”). Expense
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