- Tender offer statement by Third Party (SC TO-T)
October 02 2009 - 10:12AM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
Tender Offer Statement under
Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act
of 1934
PEROT SYSTEMS
CORPORATION
(Name of Subject Company
(Issuer))
DII HOLDINGS
INC.
(Offeror)
an indirect, wholly-owned subsidiary of
DELL INC.
(Parent of Offeror)
(Names of Filing Persons
(identifying status as offeror, issuer or other
person))
Class A Common Stock, $0.01 par value per share
(Title of Class of
Securities)
714265105
(CUSIP Number of Class of
Securities)
Lawrence P. Tu
Senior Vice President and General Counsel
One Dell Way
Round Rock, Texas 78682
Phone
(800) 289-3355
(Name, address, and telephone
numbers of person authorized to receive notices and
communications on behalf of filing persons)
Copies to:
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Robert L. Kimball
Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
(214) 220-7700
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William R. Volk
Vinson & Elkins L.L.P.
2801 Via Fortuna, Suite 100
Austin, Texas 78746
(512) 542-8400
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CALCULATION
OF FILING FEE
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Transaction Valuation(l)
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Amount of Filing Fee(2)
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$4,117,123,260
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$229,735.48
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(1)
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Estimated for purposes of calculating the filing fee only. This
amount is based on the offer to purchase at a purchase price of
$30.00 cash per share an aggregate of (i) 121,322,396
outstanding shares of Class A Common Stock of Perot Systems
Corporation; and (ii) 15,915,046 shares of
Class A Common Stock of Perot Systems Corporation that were
subject to and reserved for issuance with respect to all
outstanding options, restricted stock units or stock
appreciation rights settleable in Class A Common Stock, in
each case as provided by Perot Systems Corporation as of
September 17, 2009, the most recent practicable date.
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(2)
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The filing fee, calculated in accordance with
Rule 0-11(d)
under the Securities Exchange Act of 1934, as amended, and Fee
Rate Advisory #2 for Fiscal Year 2010 issued by the
Securities and Exchange Commission, equals $55.80 per million of
the value of the transaction.
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o
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Check the box if any part of the fee is offset as provided by
Rule 0-11
(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the form or schedule and the date of its
filing.
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Amount Previously Paid: None
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Filing Party: N/A
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Form of Registration No.: N/A
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Date Filed: N/A
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o
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions
to which the statement relates:
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þ
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Third-party tender offer subject to
Rule 14d-1.
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o
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Issuer tender offer subject to
Rule 13e-4.
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o
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Going-private transaction subject to
Rule 13e-3.
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o
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Amendment to Schedule 13D under
Rule 13d-2.
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Check the following box if the filing is a final amendment
reporting the results of the tender
offer.
o
TABLE OF CONTENTS
This Tender Offer Statement on Schedule TO (which, together
with any amendments and supplements thereto, collectively
constitute this Schedule TO) is filed by
(i) DII Holdings Inc., a Delaware corporation
(the Purchaser) and an indirect, wholly-owned
subsidiary of Dell Inc., a Delaware corporation
(Dell), and (ii) Dell. This Schedule TO
relates to the offer (the Offer) by the Purchaser to
purchase all of the outstanding shares of Class A Common
Stock, par value $0.01 per share (the Shares), of
Perot Systems Corporation, a Delaware corporation (Perot
Systems), at a purchase price of $30.00 per Share, net to
the seller in cash, without interest thereon and less any
applicable withholding or stock transfer taxes, upon the terms
and subject to the conditions set forth in the Offer to Purchase
dated October 2, 2009 (which, together with any amendments
and supplements thereto, collectively constitute the Offer
to Purchase) and in the related Letter of Transmittal,
copies of which are attached hereto as Exhibits (a)(1)(A) and
(a)(1)(B).
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Item 1.
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Summary
Term Sheet.
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The information set forth in the section of the Offer to
Purchase entitled Summary Term Sheet is incorporated
herein by reference.
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Item 2.
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Subject
Company Information.
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(a) The name of the subject company and the issuer of the
securities to which this Schedule TO relates is Perot
Systems Corporation, a Delaware corporation. Perot Systems
principal executive offices are located at
2300 West Plano Parkway, Plano, Texas 75075. Perot
Systems telephone number at such address is
(972) 577-0000.
(b) This Schedule TO relates to the outstanding shares
of Class A Common Stock, par value $0.01 per share, of
Perot Systems. Perot Systems has advised Dell that, on
September 17, 2009, there were an aggregate of
(w) 121,322,396 Shares issued and outstanding,
(x) 15,915,046 Shares subject to and reserved for
issuance upon (1) exercise of outstanding Perot Systems
options or stock appreciation rights or (2) lapse of
restrictions on Perot Systems restricted stock units granted
under the 2001 Long-Term Incentive Plan, the 1996 Non-Employee
Director Stock Option/Restricted Stock Plan, and the 2006
Non-Employee Director Equity Compensation Plan,
(y) 32,682,156 Shares subject to and reserved for
issuance under the 2001 Long-Term Incentive Plan, the 2006
Non-Employee Director Equity Compensation Plan and the 2003
Non-Employee Director Equity Compensation Plan, and
(z) 3,921,796 Shares subject to and reserved for
issuance pursuant to Perot Systems 1999 Employee Stock
Purchase Plans.
(c) The information set forth in the section of the Offer
to Purchase entitled Price Range of Shares;
Dividends is incorporated herein by reference.
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Item 3.
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Identity
and Background of Filing Person.
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(a), (b), (c) This Schedule TO is filed by Dell and
the Purchaser. The information set forth in the section of the
Offer to Purchase entitled Certain Information Concerning
Dell and the Purchaser and in Schedule I of the Offer
to Purchase is incorporated herein by reference.
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Item 4.
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Terms
of the Transaction.
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(a)(1)(i) The information set forth in the sections of the Offer
to Purchase entitled Summary Term Sheet,
Introduction and Terms of the Offer is
incorporated herein by reference.
(a)(1)(ii) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Introduction, Terms of the Offer and
Procedures for Accepting the Offer and Tendering
Shares is incorporated herein by reference.
(a)(1)(iii) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Introduction and Terms of the Offer is
incorporated herein by reference.
1
(a)(1)(iv) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Introduction and Terms of the Offer is
incorporated herein by reference.
(a)(1)(v) The information set forth in the sections of the Offer
to Purchase entitled Summary Term Sheet,
Introduction and Terms of the Offer is
incorporated herein by reference.
(a)(1)(vi) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet and
Withdrawal Rights is incorporated herein by
reference.
(a)(1)(vii) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Procedures for Accepting the Offer and Tendering
Shares and Withdrawal Rights is incorporated
herein by reference.
(a)(1)(viii) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Acceptance for Payment and Payment for Shares and
Procedures for Accepting the Offer and Tendering
Shares is incorporated herein by reference.
(a)(1)(ix) Not applicable.
(a)(1)(x) The information set forth in the sections of the Offer
to Purchase entitled Summary Term Sheet and
Certain Effects of the Offer is incorporated herein
by reference.
(a)(1)(xi) Not applicable because the accounting treatment of
the transaction is not material.
(a)(1)(xii) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Introduction and Material United States
Federal Income Tax Consequences is incorporated herein by
reference.
(a)(2) The information set forth in the Offer to Purchase is
incorporated herein by reference.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(a), (b) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Introduction, Certain Information Concerning
Dell and the Purchaser, Background of the Offer;
Past Contacts or Negotiations with Perot Systems,
Purpose of the Offer; Plans for Perot Systems and
The Transaction Agreements is incorporated herein by
reference.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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(a), (c)(1-7) The information set forth in the sections of the
Offer to Purchase entitled Summary Term Sheet,
Introduction, Price Range of Shares;
Dividends, Certain Effects of the Offer,
Purpose of the Offer; Plans for Perot Systems and
The Transaction Agreements, respectively, is
incorporated herein by reference.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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(a), (b), (d) The information set forth in the section of
the Offer to Purchase entitled Source and Amount of
Funds is incorporated herein by reference.
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Item 8.
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Interest
in Securities of the Subject Company.
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The information set forth in the sections of the Offer to
Purchase entitled Certain Information Concerning Dell and
the Purchaser, Purpose of the Offer; Plans for Perot
Systems and The Transaction Agreements is
incorporated herein by reference.
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Item 9.
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Persons/Assets
Retained, Employed, Compensated or Used.
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(a) The information set forth in the section of the Offer
to Purchase entitled Fees and Expenses is
incorporated herein by reference.
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Item 10.
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Financial
Statements.
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(a), (b) Not applicable.
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Item 11.
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Additional
Information.
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(a)(1) The information set forth in the sections of the Offer to
Purchase entitled Background of the Offer; Past Contacts
or Negotiations with Perot Systems, Purpose of the
Offer; Plans for Perot Systems and The Transaction
Agreements is incorporated herein by reference.
(a)(2) The information set forth in the sections of the Offer to
Purchase entitled Purpose of the Offer; Plans for Perot
Systems, Certain Conditions of the Offer and
Certain Legal Matters; Regulatory Approvals is
incorporated herein by reference.
(a)(3) The information set forth in the sections of the Offer to
Purchase entitled Certain Conditions of the Offer
and Certain Legal Matters; Regulatory Approvals is
incorporated herein by reference.
(a)(4) The information set forth in the sections of the Offer to
Purchase entitled Certain Effects of the Offer is
incorporated herein by reference.
(a)(5) None.
(b) The information set forth in the Offer to Purchase is
incorporated herein by reference.
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Exhibit
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Exhibit Name
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(a)(1)(A)
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Offer to Purchase dated October 2, 2009.*
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(a)(1)(B)
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Letter of Transmittal (including Guidelines for Certification of
Taxpayer Identification Number (TIN) on Substitute Form W-9).*
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(a)(1)(C)
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Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
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(a)(1)(E)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
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(a)(5)(A)
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Joint Press Release issued by Dell Inc. and Perot Systems
Corporation on September 21, 2009, incorporated herein by
reference to Exhibit 99.1 to the Current Report on Form 8-K
filed by Dell Inc. on September 21, 2009.
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(a)(5)(B)
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Form of Summary Advertisement as published on October 2, 2009 in
The Wall Street Journal.
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(a)(5)(C)
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Press Release issued by Dell Inc. on October 2, 2009.
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(b)(1)
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Issuing and Paying Agency Agreement dated as of June 1, 2006 by
and between Dell Inc. and JPMorgan Chase Bank.
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(b)(2)
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Form of Commercial Paper Dealer Agreement dated as of June 1,
2006.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 20, 2009, by
and among Dell Inc., DII Holdings Inc. and Perot
Systems Corporation, incorporated herein by reference to Exhibit
2.1 to the Current Report on Form 8-K filed by Dell Inc. on
September 21, 2009.
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(d)(2)
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First Amendment, dated September 30, 2009, to Agreement and Plan
of Merger, dated September 20, 2009, by and among Dell Inc.,
DII Holdings Inc. and Perot Systems Corporation,
incorporated herein by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by Dell Inc. on October 1, 2009.
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(d)(3)
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Form of Tender and Voting Agreement, dated September 20, 2009,
among Dell Inc., DII Holdings Inc., Perot Systems
Corporation and each of the following officers and/or directors
of Perot Systems Corporation: Peter A. Altabef, Steven Blasnik,
John S.T. Gallagher, Carl Hahn, DeSoto Jordan, Caroline S.
Matthews, Thomas Meurer, Cecil H. Moore, Jr., Anthony J.
Principi, Anuroop Singh, John Lyon, Russell Freeman, Thomas D.
Williams, Scott Barnes, Eugene L. Carrick, Steve Curts, John E.
Harper, Anurag Jain, Chuck Lyles and Jeff Renzi, incorporated
herein by reference to Exhibit 2.2 to the Current Report on Form
8-K filed by Dell Inc. on September 21, 2009.
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3
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Exhibit
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Exhibit Name
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(d)(4)
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Form of Tender and Voting Agreement, dated September 20, 2009,
among Dell Inc., DII Holdings Inc., Perot Systems
Corporation and each of the following stockholders of Perot
Systems Corporation: H. Ross Perot, HWGA, Ltd., The Perot
Foundation, Petrus Financial Services Ltd., Perot Investment
Trust I, Perot Investment Trust II, Perot Investment Trust
III, Perot Investment Trust IV and Perot Investment
Trust V, incorporated herein by reference to Exhibit 2.3 to
the Current Report on Form 8-K filed by Dell Inc. on September
21, 2009.
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(d)(5)
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Amended and Restated Tender and Voting Agreement, dated
September 30, 2009, among Dell Inc., DII
Holdings Inc., Perot Systems Corporation and the Perot Family
Trust, incorporated by reference to Exhibit 2.2 to the
Current Report on Form 8-K filed by Dell Inc. on October 1,
2009.
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(d)(6)
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Non-Disclosure Agreement, dated as of September 2, 2009, by and
between Dell Inc. and Perot Systems Corporation.
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(d)(7)
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Exclusivity Agreement, dated as of September 4, 2009, by and
between Dell Inc. and Perot Systems Corporation.
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(d)(8)
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Executive Offer Letter provided by Dell Inc. to Peter A. Altabef.
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(d)(9)
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Executive Offer Letter provided by Dell Inc. to Scott Barnes.
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(d)(10)
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Executive Offer Letter provided by Dell Inc. to Eugene Carrick.
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(d)(11)
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Executive Offer Letter provided by Dell Inc. to John E. Harper.
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(d)(12)
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Executive Offer Letter provided by Dell Inc. to Anurag Jain.
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(d)(13)
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Executive Offer Letter provided by Dell Inc. to Chuck Lyles.
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(d)(14)
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Executive Offer Letter provided by Dell Inc. to Jeff Renzi.
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(d)(15)
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Executive Offer Letter provided by Dell Inc. to Thomas D.
Williams.
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(d)(16)
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Executive Offer Letter provided by Dell Inc. to John Lyon.
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(d)(17)
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Executive Offer Letter provided by Dell Inc. to Steven Curts.
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(d)(18)
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Form of Employment Agreement executed by each new employee of
Dell Inc.
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(d)(19)
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Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement, dated September 20, 2009, between
Dell Inc. and Peter A. Altabef.
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(d)(20)
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Form of Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement, each dated September 20, 2009,
between Dell Inc. and each of the following: Scott Barnes,
Eugene Carrick, John E. Harper, Anurag Jain, Charles Lyles,
Jeffery Renzi, Thomas D. Williams, John Lyon and Steven Curts.
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(d)(21)
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Form of Rollover Restricted Stock Unit Agreement to be entered
into between Dell Inc. and any of the following that elects to
participate: Peter A. Altabef, Scott Barnes, Eugene Carrick,
John E. Harper, Anurag Jain, Charles Lyles, Jeffery Renzi,
Thomas D. Williams, John Lyon and Steven Curts.
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(d)(22)
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Form of Stock Unit Agreement to be entered into between Dell
Inc. and certain new employees.
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(d)(23)
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Retention Agreement, dated September 20, 2009, between Dell
Inc. and Russell Freeman.
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(d)(24)
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Non-Competition Agreement, dated September 20, 2009, between H.
Ross Perot, Dell Inc.,
DII-Holdings,
Inc. and Perot Systems Corporation.
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(d)(25)
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Non-Competition Agreement, dated September 20, 2009, between
Ross Perot, Jr., Dell Inc.,
DII-Holdings,
Inc. and Perot Systems Corporation.
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(d)(26)
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Third Amended and Restated License Agreement, dated September
20, 2009, between Perot Systems Family Corporation, H. Ross
Perot, Ross Perot, Jr. and Perot Systems Corporation.
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(g)
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Not applicable.
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(h)
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Not applicable.
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*
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Included in mailing to stockholders.
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Item 13.
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Information
required by
Schedule 13E-3.
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Not applicable.
4
SIGNATURE
After due inquiry and to the best of the knowledge and belief of
each of the undersigned, each of the undersigned hereby
certifies that the information set forth in this statement is
true, complete and correct.
DELL INC.
Name: Janet B. Wright
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Title:
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Assistant Secretary
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DII HOLDINGS INC.
Name: Janet B. Wright
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Title:
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Assistant Secretary
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Date: October 2, 2009
5
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Exhibit
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Exhibit Name
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(a)(1)(A)
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Offer to Purchase dated October 2, 2009.*
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(a)(1)(B)
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Letter of Transmittal (including Guidelines for Certification of
Taxpayer Identification Number (TIN) on Substitute Form W-9).*
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(a)(1)(C)
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Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
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(a)(1)(E)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
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(a)(5)(A)
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Joint Press Release issued by Dell Inc. and Perot Systems
Corporation on September 21, 2009, incorporated herein by
reference to Exhibit 99.1 to the Current Report on Form 8-K
filed by Dell Inc. on September 21, 2009.
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(a)(5)(B)
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Form of Summary Advertisement as published on October 2, 2009 in
The Wall Street Journal.
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(a)(5)(C)
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Press Release issued by Dell Inc. on October 2, 2009.
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(b)(1)
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Issuing and Paying Agency Agreement dated as of June 1, 2006 by
and between Dell Inc. and JPMorgan Chase Bank.
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(b)(2)
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Form of Commercial Paper Dealer Agreement dated as of June 1,
2006.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 20, 2009, by
and among Dell Inc., DII Holdings Inc. and Perot
Systems Corporation, incorporated herein by reference to Exhibit
2.1 to the Current Report on Form 8-K filed by Dell Inc. on
September 21, 2009.
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(d)(2)
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First Amendment, dated September 30, 2009, to Agreement and Plan
of Merger, dated September 20, 2009, by and among Dell Inc.,
DII Holdings Inc. and Perot Systems Corporation,
incorporated herein by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by Dell Inc. on October 1, 2009.
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(d)(3)
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Form of Tender and Voting Agreement, dated September 20, 2009,
among Dell Inc., DII Holdings Inc., Perot Systems
Corporation and each of the following officers and/or directors
of Perot Systems Corporation: Peter A. Altabef, Steven Blasnik,
John S.T. Gallagher, Carl Hahn, DeSoto Jordan, Caroline S.
Matthews, Thomas Meurer, Cecil H. Moore, Jr., Anthony J.
Principi, Anuroop Singh, John Lyon, Russell Freeman, Thomas D.
Williams, Scott Barnes, Eugene L. Carrick, Steve Curts, John E.
Harper, Anurag Jain, Chuck Lyles and Jeff Renzi, incorporated
herein by reference to Exhibit 2.2 to the Current Report on Form
8-K filed by Dell Inc. on September 21, 2009.
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(d)(4)
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Form of Tender and Voting Agreement, dated September 20, 2009,
among Dell Inc., DII Holdings Inc., Perot Systems
Corporation and each of the following stockholders of Perot
Systems Corporation: H. Ross Perot, HWGA, Ltd., The Perot
Foundation, Petrus Financial Services Ltd., Perot Investment
Trust I, Perot Investment Trust II, Perot Investment Trust
III, Perot Investment Trust IV and Perot Investment
Trust V, incorporated herein by reference to Exhibit 2.3 to
the Current Report on Form 8-K filed by Dell Inc. on September
21, 2009.
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(d)(5)
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Amended and Restated Tender and Voting Agreement, dated
September 30, 2009, among Dell Inc., DII-Holdings Inc.,
Perot Systems Corporation and the Perot Family Trust,
incorporated by reference to Exhibit 2.2 to the Current
Report on Form 8-K filed by Dell Inc. on October 1,
2009.
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(d)(6)
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Non-Disclosure Agreement, dated as of September 2, 2009, by and
between Dell Inc. and Perot Systems Corporation.
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(d)(7)
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Exclusivity Agreement, dated as of September 4, 2009, by and
between Dell Inc. and Perot Systems Corporation.
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(d)(8)
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Executive Offer Letter provided by Dell Inc. to Peter A. Altabef.
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(d)(9)
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Executive Offer Letter provided by Dell Inc. to Scott Barnes.
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(d)(10)
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Executive Offer Letter provided by Dell Inc. to Eugene Carrick.
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(d)(11)
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Executive Offer Letter provided by Dell Inc. to John E. Harper.
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(d)(12)
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Executive Offer Letter provided by Dell Inc. to Anurag Jain.
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(d)(13)
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Executive Offer Letter provided by Dell Inc. to Chuck Lyles.
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(d)(14)
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Executive Offer Letter provided by Dell Inc. to Jeffery Renzi.
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6
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Exhibit
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Exhibit Name
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(d)(15)
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Executive Offer Letter provided by Dell Inc. to Thomas D.
Williams.
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(d)(16)
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Executive Offer Letter provided by Dell Inc. to John Lyon.
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(d)(17)
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Executive Offer Letter provided by Dell Inc. to Steven Curts.
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(d)(18)
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Form of Employment Agreement executed by each new employee of
Dell Inc.
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(d)(19)
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Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement, dated September 20, 2009, between
Dell Inc. and Peter A. Altabef.
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(d)(20)
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Form of Protection of Sensitive Information, Noncompetition and
Nonsolicitation Agreement, each dated September 20, 2009,
between Dell Inc. and each of the following: Scott Barnes,
Eugene Carrick, John E. Harper, Anurag Jain, Charles Lyles,
Jeffery Renzi, Thomas D. Williams, John Lyon and Steven Curts.
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(d)(21)
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Form of Rollover Restricted Stock Unit Agreement to be entered
into between Dell Inc. and any of the following that elects to
participate: Peter A. Altabef, Scott Barnes, Eugene Carrick,
John E. Harper, Anurag Jain, Charles Lyles, Jeffery Renzi,
Thomas D. Williams, John Lyon and Steven Curts.
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(d)(22)
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Form of Stock Unit Agreement to be entered into between Dell
Inc. and certain new employees.
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(d)(23)
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Retention Agreement, dated September 20, 2009, between Dell
Inc. and Russell Freeman.
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(d)(24)
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|
|
Non-Competition Agreement, dated September 20, 2009, between H.
Ross Perot, Dell Inc.,
DII-Holdings,
Inc. and Perot Systems Corporation.
|
|
(d)(25)
|
|
|
Non-Competition Agreement, dated September 20, 2009, between
Ross Perot, Jr., Dell Inc.,
DII-Holdings,
Inc. and Perot Systems Corporation.
|
|
(d)(26)
|
|
|
Third Amended and Restated License Agreement, dated September
20, 2009, between Perot Systems Family Corporation, H. Ross
Perot, Ross Perot, Jr. and Perot Systems Corporation.
|
|
(g)
|
|
|
Not applicable.
|
|
(h)
|
|
|
Not applicable.
|
|
|
|
*
|
|
Included in mailing to stockholders.
|
7
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