EXHIBIT 4.5
EDS Global Share Plan
2000 NONQUALIFIED STOCK OPTION PLAN
OF
ELECTRONIC DATA SYSTEMS CORPORATION
1.
Creation . EDS Global Share Plan is adopted by
Electronic Data Systems Corporation, a Delaware corporation
(“EDS”), by action of the Board of Directors of EDS
(“Board”) on the 25 th day of July, 2000, to
provide certain employees of EDS and Participating Employers (as
such term is defined herein) with an option to purchase shares of
EDS Common Stock, par value $.01 per share (“EDS
Stock”).
2. Purpose .
EDS Global Share Plan is a broad-based, nonqualified stock
option plan designed to provide additional financial incentives for
certain employees of EDS and Participating Employers; to encourage
a sense of proprietorship in such employees; to attract and retain
such employees; and to stimulate the active interest of such
employees in the development and success of EDS and its
subsidiaries.
3.
Definitions and Construction . In any necessary construction
of a provision of this Plan, the masculine gender may include the
feminine or neuter, and the singular may include the plural, and
vice versa. This Plan should be construed in a manner consistent
with the intent of EDS to obtain the most favorable available
accounting treatment of a nonqualified stock option plan. As used
herein, capitalized terms shall have the following respective
meanings:
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(a)
Beneficiary means the individual or trust designated as the
Participant’s Beneficiary in accordance with paragraph 15
hereof. If a deceased Participant has not designated a Beneficiary
in accordance with the requirements of paragraph 15, then the
Beneficiary shall be the person to whom such Participant’s
Employee Award shall pass to in accordance with the applicable
governing laws.
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(b)
Code means the U.S. Internal Revenue Code of 1986, as
amended from time to time.
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(c)
Committee means the Compensation and Benefits Committee of
the Board.
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(d)
Controlling Retirement Plan means the EDS Retirement Plan, a
defined benefit retirement plan sponsored by EDS, or, if the
Participant does not participate in the EDS Retirement Plan, then
such other retirement plan sponsored by a subsidiary or affiliate
of EDS in which the Participant is eligible to participate, has a
vested deferred
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benefit, or is eligible for a
retirement benefit, or; such other retirement plan or program
acceptable to the Committee.
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(e)
Disability shall mean the permanent disability of an
employee whereby such disability entitles the Participant to
receive benefits under a long-term disability plan sponsored by a
Participating Employer, or if the Participant does not participate
in such long-term disability plan sponsored by a Participating
Employer, then permanent disability shall be determined according
to Social Security Administration provisions or equivalent
governing law.
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(f)
Employee means any employee of a Participating Employer who
is classified as a permanent employee and does not include any
individual who is not classified by a Participating Employer as a
permanent employee.
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(g)
Employee Award means a grant under this Plan to an eligible
Employee entitling such Employee to the right to purchase a
specified number of shares of EDS Stock at a specified price
pursuant to such applicable terms, conditions and limitations of
the specific grant. All options granted herein are nonqualified
stock options.
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(h)
Employee Award Statement means a written notice provided by
a Participating Employer to a Participant setting forth the number
of shares of EDS Stock subject to the Employee Award.
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(i)
Fair Market Value of a share of EDS Stock means, as of a
specified date: (i) if shares of EDS Stock are listed on the
New York Stock Exchange, the closing price per share of EDS Stock
as reported by a reputable and recognized reporting service as
designated by the Plan Administrator, or, if there shall have been
no such price so reported on that date, on the last preceding date
on which a price was so reported; (ii) if shares of EDS Stock
are not so listed but are quoted on the NASDAQ National Market
System, the closing sales price per share of EDS Stock reported by
the NASDAQ National Market System on that 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; or,
(iii) if the EDS Stock is not so listed or quoted, 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 National Market System, or, if not reported by the
NASDAQ National Market System, by the National Quotation Bureau
Incorporated.
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(j)
Grant Date means the particular date on which an Employee is
granted an Employee Award under the terms of this Plan.
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(k)
Grant Price means the Fair Market Value of EDS Stock on the
Grant Date.
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(l)
Moratorium Period means the 6 month period immediately
following the Grant Date.
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(m)
Participant means an individual to whom an Employee Award
has been made, and for whom such Employee Award has not lapsed and
remains outstanding and unexercised under this Plan.
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(n)
Participating Country means any country, as determined by
the Committee, or its delegate, in its sole and absolute
discretion, and as set forth in Attachment “A”,
attached hereto, and as may be amended from time to
time.
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(o)
Participating Employer means EDS, or any subsidiary or
affiliate of EDS, as determined by the Committee in its sole and
absolute discretion, and as set forth in Attachment
“B”, attached hereto, and as may be amended from time
to time.
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(p)
Plan means EDS Global Share Plan , as set forth in
this document, and as it may be amended from time to
time.
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(q)
Plan Administrator shall mean the EDS Benefits Oversight
Committee or such other person or committee as from time to time
determined by the Committee.
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(r)
Retirement means separation from employment on or after the
date the Participant becomes eligible for normal or early
retirement under the Controlling Retirement Plan, or, in the event
the Participant does not participate in a Controlling Retirement
Plan, then under the local governing law or social security
authority, or such other retirement program as deemed acceptable by
the Committee.
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(s)
Subsequent Grant means any grant issued under the terms of
the Plan after the Grant Date of the initial grant of Employee
Awards hereunder.
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(t)
Trading Day means a day on which EDS Stock is available for
purchase or sale on the principal exchange on which it is
traded.
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4.
Eligibility . Employee Awards under this Plan will be
granted to those Employees designated by the Board as eligible at
the time a grant hereunder is approved. The Chief Executive Officer
of EDS shall grant Employee Awards to Employees of Participating
Employers which did not participate in the initial grant because
they were located in a country which was then not a Participating
Country but has since been designated as a Participating Country by
the Chief Executive Officer of EDS. Additionally, individuals who
become Employees by reason of a valuable contract entered into by a
Participating Employer or a strategic acquisition shall, with the
approval of the Chief Executive Officer of EDS, be eligible for an
Employee Award in Subsequent Grants. Notwithstanding the foregoing,
(a) employees of Participating Employers who are not employed
as permanent employees shall be eligible, to the extent required by
applicable law, for Employee Awards under this Plan;
(b) Employees who, on the Grant Date, are designated by EDS as
required to report transactions involving EDS Stock pursuant to
Section 16 of the Securities Exchange Act of 1934, shall not be
eligible to participate in the Plan.
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5.
EDS Stock Available for Employee Awards . The Board
has approved the granting of shares of EDS Stock under this Plan,
which number of shares of EDS Stock may be modified from time to
time by resolution of the Board. The Employee Awards shall be
granted to a sufficient and diverse number of Employees to qualify
the Plan as “broad-based” under the governing rules or
requirements of the New York Stock Exchange. The number of shares
of EDS Stock that are the subject of Employee Awards under this
Plan that are forfeited or terminated, that expire unexercised, or
that are settled in a manner such that all or some of the shares
covered by an Employee Award are not issued to a Participant, shall
be available for future Employee Awards or Subsequent Grants
hereunder. The Committee may from time to time adopt and observe
such procedures concerning the counting of shares against the Plan
maximum as it may deem appropriate. The Board and the appropriate
officers of EDS shall from time to time take whatever actions are
necessary to file any required documents with governmental
authorities, stock exchanges and transaction reporting systems to
ensure that shares of EDS Stock are available for issuance pursuant
to Employee Awards.
6.
Employee Awards . The Committee shall determine the number
of Employee Awards to be made under this Plan and subject to the
provisions of Paragraph 4 and Paragraph 5 shall designate from time
to time the Employees who are to be the recipients of such Employee
Awards either as part of the initial grant or a Subsequent Grant
under the Plan. Each Employee Award may be embodied in an Employee
Award Statement, which shall contain such terms, conditions and
limitations as shall be determined by the Committee in its sole
discretion. Employee Awards may only be in the form of a
non-qualified stock option. Employee Awards may also be made in
combination or in tandem with, in replacement of, or as
alternatives to, grants or rights under this Plan or any other
employee plan of EDS, any of its subsidiaries, or a Participating
Employer including the plan of any acquired entity. No Employee
Award may be issued in exchange for the cancellation of an Employee
Award with a lower exercise price. Notwithstanding anything to the
contrary herein, Employee Awards granted to Eligible Employees in
certain jurisdictions outside of the United States will be made
subject to terms and conditions specified on addenda attached
hereto and incorporated for all purposes.
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(a)
Exercise Price of Employee Awards . The price at which
shares of EDS Stock may be purchased upon the exercise of an
Employee Award shall be not less than, but may exceed, the Fair
Market Value of the EDS Stock on the Grant Date. Subject to the
foregoing provisions, the terms, conditions and limitations
applicable to any Employee Awards awarded pursuant to this Plan,
including the terms of any Employee Awards and the date or dates
upon which they become exercisable, shall be determined by the
Committee.
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(b)
Vesting of Employee Award .
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(i)
Employee Awards shall fully vest, and the Participant’s
interest in such Employee Award shall be nonforfeitable (subject to
subparagraphs 6(d)) and exercisable in accordance with Section
7 hereof if the Participant remains in the
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continuous employment of a
Participating Employer until the vesting date established by the
Committee.
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(ii)
If the Participant terminates employment with the Participating
Employer by reason of Retirement, death, or Disability at any time
before an Employee Award granted hereunder becomes fully vested in
accordance with subparagraph 6(b)(i) above, then such Employee
Award shall fully vest on the record date of the
Participant’s termination of employment.
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(c)
Lapse of Unvested Employee Award at Termination of
Employment . Any Employee Award that is not vested pursuant to
subparagraph 6(b), shall lapse when the Participant is no longer
employed by any Participating Employer; provided, however, that
such Employee Award will not lapse upon a Participant’s
transfer to a non-participating subsidiary or affiliate of EDS
provided such subsidiary or affiliate is located in a Participating
Country.
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(d)
Lapse of Vested Employee Award . Employee Awards
which became vested in accordance with Plan paragraph 6(b)
shall lapse at the earlier of
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(i)
the second anniversary of the date on which such Employee Award is
one hundred percent (100%) vested;
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(ii)
the ninetieth day following the date the Participant is no longer
employed by a Participating Employer by reason other than death,
Disability or Retirement,
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(iii)
the second anniversary of the date of a Participant’s
termination of employment by reason of death, Disability or
Retirement.
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(e)
Terms of Employee Awards in Subsequent Grants . Employee
Awards granted in Subsequent Grants may have terms and conditions
that are different from or in addition to the terms and conditions
for Employee Awards specified in other provisions of this Plan,
including but not limited to terms and conditions which result in
different formulae or methods for determining the amount of
Employee Awards, different vesting schedules or different lapse
provisions than those of previous Employee Awards.
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7.
Election to Exercise .
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(a)
Election . A vested Employee Award which has not
lapsed may be exercised after the Moratorium Period, in whole or in
part, by timely delivery to the Plan Administrator of such forms as
may be designated by the Committee, a notice of exercise, and
payment of the purchase price. Notice of exercise shall be
effective on the date received by the Plan Administrator. The
notice must state the Participant’s election to exercise the
Employee Award, the number of shares with respect to which the
election to exercise has been made, the method of payment elected,
the exact name or names in
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which such shares will be
registered and such other information and in such form as may be
required by the Plan Administrator. Upon a Participant’s
death, the deceased Participant’s Employee Award may be
exercised by the Participant’s Beneficiary, subject to the
provisions hereof.
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(b)
Completion of Necessary Forms . As a condition precedent to
becoming eligible to exercise any Employee Award, the Participant
shall be required to properly and timely complete, execute and
deliver such forms as may be designated by the Plan Administrator.
Failure to properly complete, execute and deliver such forms before
the time restrictions set forth in subparagraph 6(d) hereof shall
result in the lapse of such vested Employee Awards.
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(c)
Payment . The full exercise price for the shares of EDS
Stock purchased on the exercise of an Employee Award (i.e., the
number of shares purchased, multiplied by the Grant Price) may be
paid in cash, or, at the request of the Participant, and to the
extent permitted by applicable law, the Committee may approve, in
its sole and absolute discretion, cashless exercise through a
simultaneous sale arranged with a broker of shares of EDS Stock
acquired on exercise, as permitted under Regulation T of the
Federal Reserve Board.
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(d)
Right to Recovery . The Plan Administrator or its agent may,
in any legal method available, seek recovery from any Participant
who receives an overpayment or exercises an Employee Award which
has lapsed or is inconsistent with the provisions of the
Plan.
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8.
Administration .
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(a)
This Plan shall be administered by the EDS Benefits Oversight
Committee (or its delegate pursuant to paragraph 9 hereof). The EDS
Benefits Oversight Committee shall have the power, in its sole and
absolute discretion, to contract with a third-party administrator
to administer this Plan.
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(b)
Subject to the provisions hereof, the EDS Benefits Oversight
Committee shall have full and exclusive power and authority to
administer this Plan and to take all actions which are specifically
contemplated hereby or are necessary or appropriate in connection
with the administration hereof. The EDS Benefits Oversight
Committee shall also have full and exclusive power to interpret
this Plan, to devise necessary forms and documents, and to adopt
such rules, regulations and guidelines for carrying out this Plan
as it may deem necessary or proper, all of which powers shall be
exercised in the best interests of EDS and in keeping with the
objectives of this Plan. The EDS Benefits Oversight Committee may,
in its sole and absolute discretion, amend or modify an Employee
Award in any manner that is consistent with the purpose and
objectives of this Plan and is either (i) not adverse to the
Participant to whom such Employee Award was granted,
(ii) required to comply with governing law, or
(iii) consented to by such Participant. The EDS Benefits
Oversight Committee may correct any defect or supply
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any omission or reconcile any
error or inconsistency in this Plan or in any Employee Award
Statement in the manner and to the extent the EDS Benefits
Oversight Committee deems necessary or desirable to carry it into
effect. Any decision of the EDS Benefits Oversight Committee in the
interpretation and administration of this Plan shall lie within its
sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. The Board, Committee or EDS
Benefits Oversight Committee need not be uniform and consistent in
making determinations and interpretations in the administration of
the Plan.
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(c)
No member of the Committee, the EDS Benefits Oversight Committee,
or any officer or Employee of EDS or Participating Employer to whom
the Committee has delegated authority in accordance with the
provisions of paragraph 9 hereof, shall be liable for anything
done or omitted to be done by such person, by any member of the
Committee, or by any officer or Employee of EDS or Participating
Employer in connection with the performance of any duties under
this Plan, except for such person’s own willful misconduct or
as expressly provided by statute. Nothing herein shall exculpate
any third-party administrator from any contracted liability or
responsibility to EDS, the Participating Employer, the Plan, its
participants or beneficiaries thereof or any officials.
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9.
Delegation of Authority . The Committee may delegate to such
subcommittees, officers, other Employees of EDS or Participating
Employer, or qualified third-party administrators, its duties under
this Plan pursuant to such conditions or limitations as the
Committee may establish. The Committee shall have the power and
authority to appoint, remove or replace the members of any such
subcommittee, or any officer, Employee or third-party administrator
that has been delegated responsibilities and authority by the
Committee.
10.
Tax Withholding . Upon the exercise of the Employee Award,
or any part thereof, the Participant may incur certain liabilities
for taxes and the Participating Employer may be required by law to
withhold such taxes for payment to taxing authorities. Upon
determination by the Participating Employer of the amount of taxes
required to be withheld, including taxes, if any, which may be
required to be withheld prior to exercise with respect to the
shares to be issued pursuant to the exercise of the Employee Award,
the Plan Administrator shall establish procedures which allows the
Participant (a) to direct the Participating Employer to withhold
from the EDS Stock available for exercise the number of shares
necessary to satisfy the withholding obligations, based on the
market price of the EDS Stock on the date of exercise; (b) to
deliver sufficient cash to the Participating Employer to satisfy
its withholding obligations; or, (c) some combination thereof.
Authorization of the Participant to the Participating Employer to
withhold taxes must be in a form and content acceptable to the Plan
Administrator. Failure by the Participant to comply with the
foregoing shall entitle the Plan Administrator, in its sole and
absolute discretion, to authorize the sale of a sufficient number
of the shares of EDS Stock which the Participant is entitled to
receive upon the exercise of the Participant’s Employee Award
in order to satisfy such withholding requirements; provided
however, that neither the Participating Company nor the EDS
Benefits Oversight Committee shall be liable for determining the
exact amount of such taxes, for selling shares of EDS Stock in
excess of that required to satisfy such
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tax obligation, or for obtaining
the highest sales price for any such shares. The payment or
authorization to withhold taxes by the Participant shall be
completed prior to the delivery of any EDS Stock pursuant to this
Plan. An authorization to withhold taxes pursuant to this provision
will be irrevocable unless and until the tax liability of the
Participant has been fully paid. Any income or compensation arising
out of the grant, vesting or exercise of an Employee Award shall
not be taken into account in determining overtime, bonus, life
insurance, pension or such other benefits except as provided in the
relevant plan or policy covering such compensation or benefits or
as otherwise required by law.
11.
Delivery of Shares . Subject to this paragraph 11 and
paragraph 16 hereof, and upon written request of the Participant,
the Participating Employer shall cause certificates for those
shares of EDS Stock which the Participant is entitled to receive
upon the exercise of an Employee Award to be delivered to
Participant. EDS Stock delivered to Participants shall be in
treasury shares unless otherwise specified herein. No shares of EDS
Stock shall be delivered to the Participant upon the exercise of
the Employee Award until (a) the purchase price, including any
applicable fees or commissions, have been paid in full in the
manner herein provided; (b) all the applicable taxes required to be
withheld have been paid or withheld in full; and (c) the approval
of any governmental authority required in connection with the
Employee Award or the issuance of shares thereunder has been
received by EDS. A Participant shall not have any rights as a
shareholder of EDS Stock from this Plan until such EDS Stock is
delivered to the Participant in accordance with the terms of this
Plan.
12.
Amendment, Modification, Suspension or Termination . EDS may
amend, modify, suspend or terminate this Plan for the purpose of
meeting or addressing any changes in legal requirements or for any
other purpose permitted by law, except that (a) no amendment
or alteration that would adversely affect the rights of any
Participant under any Employee Award previously granted to such
Participant shall be made without the consent of such Participant
and (b) no amendment or alteration shall be effective prior to
approval by the stockholders of EDS to the extent stockholder
approval is required by applicable legal requirements. Any
amendment, modification or suspension may be made through an
addendum, attachment or other ancillary document authorized by the
Committee which shall be incorporated herein for all purposes. EDS
may, in its sole and absolute discretion, terminate this Plan at
any time, provided that such termination shall not cause any
Participant to lose any rights to any vested Employee
Award.
13.
Assignability . No Employee Award nor any other benefit
under this Plan shall be assignable or otherwise transferable
except by a testamentary transfer or the laws of descent and
distribution, or by designation of a beneficiary as provided in
paragraph 15 hereof. The Committee may prescribe and include in
applicable Employee Award Statements other restrictions on
transfer. Any attempted assignment of an Employee Award or any
other benefit under this Plan in violation of this
paragraph 13 shall be null and void.
14.
Adjustments .
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(a)
The existence of outstanding Employee Awards shall not affect in
any manner the right or power of EDS or its stockholders to make or
authorize any or all
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adjustments, recapitalizations,
reorganizations or other changes in the capital stock of EDS or its
business or any merger or consolidation of EDS, or any issue of
bonds, debentures, preferred or prior preference stock (whether or
not such issue is prior to, on a parity with or junior to the EDS
Stock) or the dissolution or liquidation of EDS or a subsidiary, or
any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding of any kind, whether or
not of a character similar to that of the acts or proceedings
enumerated above.
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(b)
In the event of any subdivision or consolidation of outstanding
shares of EDS Stock, declaration of a dividend payable in shares of
EDS Stock, or other stock split, then (i) the number of shares of
EDS Stock reserved under this Plan, (ii) the number of shares of
EDS Stock covered by outstanding Employee Awards, (iii) the
exercise or other price in respect of
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