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| PER > SEC Filings for PER > Form 8-K on 3-Nov-2009 | All Recent SEC Filings |
3-Nov-2009
Termination of a Material Definitive Agreement, Change in Directors or Princip
reliance upon the exemption from registration set forth in Section 4(2) of the
Securities Act for transactions not involving a public offering.
The foregoing summary description of the Merger Agreement does not purport to
be complete and is qualified in its entirety by reference to the terms of the
Merger Agreement, as amended by the First Amendment to the Merger Agreement,
copies of which are filed as Exhibit 2.1 and Exhibit 2.2 hereto, respectively,
and are incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth under Items 3.02 and 5.01 hereto is hereby
incorporated by reference into this Item 3.03.
Item 5.01 Change in Control of the Registrant.
On November 3, 2009, Dell completed its acquisition of all of the outstanding
Shares pursuant to the Merger Agreement. Dell's acquisition of the Shares was
structured as a two-step transaction, consisting of the Offer followed by the
Merger.
The Offer expired at 12:00 midnight, New York City time, on Monday,
November 2, 2009. Based upon information provided to Dell by BNY Mellon
Shareowner Services, the depositary for the Offer, approximately 108,774,629
Shares were validly tendered and not properly withdrawn prior to the expiration
of the Offer, representing approximately 87.7% of the Shares outstanding as of
November 2, 2009. The depositary also informed Dell that it received commitments
to tender 3,961,266 additional Shares under the guaranteed delivery procedures
for the Offer. On November 3, 2009, the Purchaser accepted for payment all
validly tendered and not properly withdrawn Shares (including Shares tendered to
the depositary pursuant to the Offer's guaranteed delivery procedure) and will
promptly make payment for such Shares in accordance with the terms and
conditions of the Offer and applicable law. On November 3, 2009, Dell issued a
press release announcing the successful completion of the Offer, a copy of which
is filed as Exhibit 99.1 hereto and incorporated herein by reference.
Following the Purchaser's acceptance for payment of all validly tendered and
not properly withdrawn Shares on November 3, 2009 and its purchase of the Top-Up
Shares described above, pursuant to the terms of the Merger Agreement, the
Purchaser merged with and into the Company in accordance with the provisions of
Delaware law that authorize the completion of the Merger as a "short form"
merger without a vote or meeting of the Company's stockholders. In the Merger,
each Share not purchased in the Offer (other than shares held in treasury or
reserved for issuance by the Company and Shares held by Dell or the Purchaser or
direct or indirect subsidiaries of Dell or the Company, all of which were
cancelled and extinguished, and Shares held by stockholders who validly exercise
their appraisal rights under Delaware law) was converted into the right to
receive the Offer Price without interest thereon and less applicable withholding
or stock transfer taxes. Following the Merger, the Company became an indirect,
wholly-owned subsidiary of Dell.
The foregoing summary description of the Merger Agreement does not purport to
be complete and is qualified in its entirety by reference to the terms of the
Merger Agreement, as amended by the First Amendment to the Merger Agreement,
copies of which are filed as Exhibit 2.1 and Exhibit 2.2 hereto, respectively,
and are incorporated herein by reference.
On November 3, 2009, in connection with the consummation of the Merger
described in more detail in Items 3.02 and 5.01 hereto, each of the members of
the Company's Board of Directors who were directors immediately prior to the
Merger resigned. Each resigning director resigned pursuant to the terms of the
Merger Agreement and no director resigned from the Board of Directors because of
any disagreements with the Company on any matter relating to the Company's
operations, policies or practices.
In addition, on November 3, 2009, Janet B. Wright, a designee of Dell, was
appointed as the sole director of the Company. Information about Ms. Wright has
been previously disclosed in the Company's Information Statement contained in
the Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") filed with the Securities and Exchange Commission on
October 2, 2009.
As previously disclosed in the Schedule 14D-9, in accordance with the terms
of the Merger Agreement, on September 20, 2009, the Company's Board of Directors
authorized certain amendments to the Perot Systems Corporation 1991 Stock Option
Plan (the "1991 Plan") and the Perot Systems Corporation Restricted Stock Plan
(the "Restricted Stock Plan") to provide the Board of Directors with the
authority to accelerate the vesting of outstanding awards under the 1991 Plan
and the Restricted Plan and to cancel any such outstanding vested awards
thereunder in exchange for a cash payment in connection with a change in
control. The Company executed such plan amendments to the 1991 Plan and the
Restricted Stock Plan on November 2, 2009, each to be effective as of September
20, 2009.
The foregoing description of the plan amendments to the 1991 Plan and the
Restricted Stock Plan is only a summary, does not purport to be complete and is
qualified in its entirety by reference to the plan amendments, copies of which
are filed as Exhibits 10.1 and 10.2 hereto, respectively, and are incorporated
herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Pursuant to the Merger Agreement, at the effective time of the Merger (the
"Effective Time"), the Third Amended and Restated Certificate of Incorporation
of the Company was amended and restated in its entirety to be in the form set
forth on Exhibit A to the Merger Agreement (the "Amended Certificate of
Incorporation"). A copy of the Amended Certificate of Incorporation of the
Company is filed as Exhibit 3.1 hereto and incorporated herein by reference.
Pursuant to the Merger Agreement, at the Effective Time, the Company's Fifth
Amended and Restated Bylaws were amended and restated in their entirety to read
as the bylaws of the Purchaser, as in effect immediately prior to the Effective
Time (except that the name of the company set forth therein is "Perot Systems
Corporation") (the "Amended Bylaws"). A copy of the Amended Bylaws of the
Company is filed as Exhibit 3.2 hereto and incorporated herein by reference.
(d) Exhibits.
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated September 20, 2009, by and among
Perot Systems Corporation, Dell Inc. and DII - Holdings Inc.,
incorporated by reference to Exhibit 2.1 to Perot Systems
Corporation's Current Report on Form 8-K filed on September 21, 2009
(Pursuant to the rules of the Securities and Exchange Commission, the
schedules and similar attachments to the agreement have not been
filed herewith. The registrant agrees to furnish supplementally a
copy of any omitted schedule or attachment to the Commission upon
request.)
2.2 First Amendment, dated September 30, 2009, to Agreement and Plan of
Merger, dated September 20, 2009, by and among Perot Systems
Corporation, Dell Inc. and DII - Holdings Inc., incorporated by
reference to Exhibit 2.1 to Perot Systems Corporation's Current
Report on Form 8-K filed on October 1, 2009.
3.1 Perot Systems Corporation Amended and Restated Certificate of
Incorporation.
3.2 Perot Systems Corporation Sixth Amended and Restated By-Laws.
10.1 Plan Amendment to the Perot Systems Corporation 1991 Stock Option
Plan, effective as of September 20, 2009, incorporated by reference
to Exhibit (e)(48) to Amendment No. 7 to Perot Systems Corporation's
Solicitation/Recommendation Statement on Schedule 14D-9 filed on
November 3, 2009.
10.2 Plan Amendment to the Perot Systems Corporation Restricted Stock
Plan, effective as of September 20, 2009, incorporated by reference
to Exhibit (e)(49) to Amendment No. 7 to Perot Systems Corporation's
Solicitation/Recommendation Statement on Schedule 14D-9 filed on
November 3, 2009.
99.1 Press Release issued by Dell Inc. on November 3, 2009, incorporated
by reference to Exhibit (a)(15) to Amendment No. 7 to Perot Systems
Corporation's Solicitation/Recommendation Statement on Schedule 14D-9
filed on November 3, 2009.
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