TENDER AND VOTING
AGREEMENT
This AMENDED AND
RESTATED TENDER AND VOTING AGREEMENT (this “ Agreement
”) dated September 30, 2009, among Dell Inc., a Delaware
corporation (“ Parent ”), DII – Holdings
Inc., a Delaware corporation and a direct wholly-owned subsidiary
of Parent (“ Merger Sub ”), Perot Family Trust
(“ Stockholder ”), and Perot Systems
Corporation, a Delaware corporation (“ Company
”).
WHEREAS, Parent,
Merger Sub and the Company have entered into an Agreement and Plan
of Merger, dated as of September 20, 2009 (as such agreement
may hereafter be amended from time to time, the “ Merger
Agreement ), pursuant to which Merger Sub will be merged with
and into the Company (the “ Merger
”);
WHEREAS, in
furtherance of the Merger, on the terms and subject to the
conditions set forth in the Merger Agreement, Merger Sub has agreed
to commence an offer to purchase for cash all of the issued and
outstanding shares of the Common Stock, including all of the
outstanding Shares Beneficially Owned by Stockholder;
WHEREAS, as a
condition and material inducement to Parent and Merger Sub entering
into the Merger Agreement, Parent, Merger Sub, Stockholder and the
Company entered into a Tender and Voting Agreement, dated
September 20, 2009 (the “ Prior Agreement
”); and
WHEREAS, Parent,
Merger Sub, Stockholder and the Company desire to amend and restate
the Prior Agreement and to accept the rights created pursuant to
this Agreement in lieu of the rights created under the Prior
Agreement.
NOW, THEREFORE, in
consideration of the premises and of the representations,
warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties agree as
follows:
1.
Definitions . For purposes of this Agreement:
(a)
“ Beneficially Own ” or “ Beneficial
Ownership ” with respect to any securities shall mean
having “beneficial ownership” of such securities (as
determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “ Exchange
Act” )), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a “group” within the meaning of
Section 13(d)(3) of the Exchange Act and Rule 13d-5(b)(1)
under the Exchange Act.
(b) Capitalized
terms used and not defined herein and defined in the Merger
Agreement have the respective meanings ascribed to such terms in
the Merger Agreement notwithstanding any termination of the Merger
Agreement.
(a) Stockholder
may elect to validly tender or cause to be tendered to Merger Sub
pursuant to and in accordance with the terms of the Offer, not
later than the 5th Business Day after commencement of the Offer
pursuant to Section 1.1 of the Merger Agreement and
Rule 14d-2 under the Exchange Act, the number of outstanding
shares of Common Stock set forth on Schedule I hereto (the
“Existing Shares”), and (to the extent tendered) will
not withdraw the Existing Shares, or cause the Existing Shares to
be withdrawn, from the Offer at any time (except following the
termination or expiration of the Offer without Merger Sub
purchasing all shares of Common Stock tendered pursuant to the
Offer in accordance with its terms). Stockholder shall comply with,
and hereby reaffirms, the obligations of Stockholder pursuant to
Section 3 of this Agreement, irrespective of whether
Stockholder elects to tender any Existing Shares pursuant to this
Section 2. If Stockholder acquires record ownership of any
outstanding shares of Common Stock after the date hereof and prior
to the termination of this Agreement, whether upon the exercise of
options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase,
dividend, distribution or otherwise (together with the Existing
Shares, the “Shares”), Stockholder may elect to validly
tender or cause to be tendered to Merger Sub pursuant to and in
accordance with the Offer, not later than the 5th Business Day
after commencement of the Offer pursuant to Section 1 of the
Merger Agreement and Rule 14d-2 of the Exchange Act or, if
acquired later than such time, on or before the 5th Business Day
after such acquisition but in any event prior to the Expiration
Date and (to the extent tendered) will not withdraw such Shares, or
cause such Shares to be withdrawn, from the Offer at any time
(except following the termination or expiration of the Offer
without Merger Sub purchasing all shares of Common Stock tendered
pursuant to the Offer in accordance with its terms).
Notwithstanding anything in this Agreement to the contrary, nothing
herein shall require Stockholder to exercise any option to purchase
shares of Common Stock or to tender any securities not outstanding
at the relevant time. Stockholder acknowledges that his, her or its
obligations to tender or cause to be tendered, and not to withdraw
or cause to be withdrawn, the Shares to Merger Sub contained herein
require Stockholder to tender the Shares to Merger Sub in the event
that Parent or Merger Sub adjust the terms and conditions of the
Merger Agreement in response to a Superior Proposal pursuant to
Parent’s and Merger Sub’s “match” rights
under Section 5.3(c) of the Merger Agreement; provided, that
following any such adjustment to the Merger Agreement (1) the
terms and conditions of the Offer shall be no less favorable to
Stockholder than as described in the Merger Agreement on the date
hereof and (2) the consideration paid to the Stockholder for Shares
tendered in the Offer is the highest consideration paid to any
other holder of Common Stock for shares of Common Stock tendered in
the Offer; provided further, that the Stockholder’s
obligations to tender or cause to be tendered, and not to withdraw
or cause to be withdrawn, the Shares shall cease to be binding on
the Stockholder in the event that Parent or Merger Sub adjusts the
terms and conditions of the Merger Agreement in any way other than
as provided in items (1) and (2) of the foregoing
proviso. Notwithstanding anything in this Agreement to the
contrary, any shares acquired by Stockholder after the date hereof
and prior to the termination of this Agreement from any Person who
is obligated under an agreement among such Person, Parent and
Merger Sub, which Agreement is substantially similar to this
Agreement (a “Parallel Agreement”) that do not
constitute “Shares” under such Parallel Agreement shall
not constitute Shares under this Agreement for any
purpose.
(b) Stockholder
hereby acknowledges and agrees that the obligation of Merger Sub to
accept for payment and pay for any Shares in the Offer, including
the Shares
2
Beneficially
Owned by Stockholder to the extent tendered pursuant to this
Agreement, shall be subject to the terms and conditions of the
Offer.
(c) Parent
and Merger Sub shall return to Stockholder all materials tendered
by Stockholder to Merger Sub, promptly after the termination or
expiration of the Offer without Merger Sub purchasing all Shares of
Common Stock tendered pursuant to the Offer in accordance with its
terms.
(d) Stockholder
hereby agrees to permit Parent and Merger Sub to publish and
disclose in the Offer Documents, and, if Company Stockholder
Approval is required under applicable Law, the Proxy Statement
(including all documents and schedules filed with the SEC), his,
her or its identity and ownership of Common Stock and the nature of
his, her or its obligations, commitments, arrangements and
understandings under this Agreement.
3.
Provisions Concerning Company Common Stock .
(a) Except
as otherwise agreed to in writing by Parent in advance, during the
term of this Agreement, the Stockholder irrevocably agrees to vote
(or cause to be voted) the Shares, whether currently owned or
hereafter acquired, at any meeting of the holders of Common Stock,
however called, or in connection with any written consent of the
holders of Common Stock: (i) in favor of the adoption of the
Merger Agreement and the approval of the terms thereof, the
approval of the Merger and each of the other actions contemplated
by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; (ii) against the following
actions, agreements or transactions (other than the Merger, and the
transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company
or any of its Subsidiaries, (B) a sale, lease or transfer of a
material amount of assets of the Company or any of its
Subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its Subsidiaries, (C)
(1) any change in a majority of the persons who constitute the
Board of Directors, (2) any change in the present
capitalization of the Company or any amendment of the Certificate
of Incorporation or Bylaws, (3) any other material change in
the Company’s corporate structure or business, or
(4) any other action which, in the case of each of the matters
referred to in clauses (C) (1), (2) or (3) is intended or
could reasonably be expected to impede, interfere with, delay,
postpone, discourage, frustrate the purpose of or adversely affect
the Merger or the other transactions contemplated by this Agreement
and the Merger Agreement. Stockholder shall not enter into any
Contract with any Person, the effect of which would be inconsistent
with or violative of the provisions and agreements contained in
this Section 3.
(b) Nothing
contained in this Agreement shall in any way restrict or limit the
Stockholder from taking (or omitting to take) any action in his or
her capacity as a director or officer of the Company or otherwise
fulfilling his or her fiduciary obligations as a director or
officer of the Company.
4. Other
Covenants, Representations and Warranties . As of the date of
this Agreement, Stockholder hereby represents, warrants, covenants
and agrees as follows:
3
(a)
Ownership of Shares . Stockholder is the record and
Beneficial Owner of the number of Shares set forth on
Schedule I hereof. Stockholder has good, valid and
marketable title to the Existing Shares and, immediately prior to
the transfer of Shares to Merger Sub in the Offer will have good,
valid and marketable title to the Shares, in each case, free and
clear of all Encumbrances (other than Encumbrances created by the
Merger Agreement or this Agreement and other than restrictions on
transfer under applicable securities laws). Without limiting the
foregoing, Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in
Sections 2 and 3 hereof, sole power of
disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to enter into and perform all of
his, her or its obligations under this Agreement, in each case,
with respect to all of the Existing Shares set forth on
Schedule I hereto, with no limitations, qualifications
or restrictions on such rights. If Stockholder acquires Beneficial
Ownership but not record ownership, of any outstanding shares of
Common Stock after the date hereof and prior to the termination of
this Agreement, whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend or distribution or
otherwise, Stockholder shall (i) on or prior to the
acquisition of Beneficial Ownership of such shares or, if later, as
soon as practicable after Stockholder has actual knowledge that
Stockholder has acquired Beneficial Ownership thereof, direct and
use commercially reasonable efforts to cause the record owner of
such shares to agree in writing to be bound by the terms hereof, in
form and substance reasonably satisfactory to Parent and
(ii) direct and use commercially reasonable efforts to cause
the record owner of such shares to (1) validly tender such
shares to Merger Sub pursuant to and in accordance with the terms
of the Offer, and not to withdraw such shares from the Offer, at
the time or times and in the same manner as provided for the Shares
in Section 2(a), and (2) vote such shares in the same
manner as provided for the Shares in Section 3(a). The
foregoing sentence shall not apply to any shares acquired by
Stockholder after the date hereof and prior to the termination of
this Agreement from any Person who is obligated under a Parallel
Agreement that do not constitute “Shares” under such
Parallel Agreement.
(b)
Power; Binding Agreement . Stockholder has the full legal
capacity, power and authority to enter into and perform all of
Stockholder’s obligations under this Agreement. The
execution, delivery and performance of this Agreement by
Stockholder will not violate any other agreement to which
Stockholder is a party including any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and
binding agreement of Stockholder, enforceable against Stockholder
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and other laws relating to
creditors’ rights and to general principles of equity. There
is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which Stockholder is Trustee whose consent
is required for the execution a
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