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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported) December 5, 1994
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GENERAL MOTORS CORPORATION
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(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 1-143 38-0572515
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
767 Fifth Avenue, New York, New York 10153-0075
3044 West Grand Boulevard, Detroit, Michigan 48202-3091
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (313)-556-5000
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
Exhibit 3(ii) By-Laws as amended to December 5, 1994, reflecting
amendments to Sections 3.1 and 3.6.
Section 3.1 changes the name of the Incentive and Compensation
Committee to the Executive Compensation Committee.
Section 3.6 states the responsibilities of the Executive Compensation
Committee.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENERAL MOTORS CORPORATION
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(Registrant)
Date December 16, 1994
----------------- By
s/Wallace W. Creek
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(Wallace W. Creek, Comptroller)
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EXHIBIT 3(ii)
G E N E R A L M O T O R S C O R P O R A T I O N
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BY-LAWS
As Amended to
December 5, 1994
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GENERAL MOTORS CORPORATION
BY-LAWS
INDEX
Page
ARTICLE I -- MEETINGS OF STOCKHOLDERS
1.1. Annual 1
1.2. Special 1
1.3. Notice of Meetings 1
1.4. List of Stockholders Entitled to Vote 1
1.5. Quorum 2
1.6. Organization 2
1.7. Voting; Proxies 2
1.8. Fixing Date for Determination of Stockholders of Record 2
1.9. Adjournments 3
1.10. Judges 3
ARTICLE II -- BOARD OF DIRECTORS
2.1. Responsibility and Number 3
2.2. Election; Resignation; Vacancies 3
2.3. Regular Meetings 4
2.4. Special Meetings 4
2.5. Quorum; Vote Required for Action 4
2.6. Organization 4
2.7. Transactions with Corporation 5
2.8. Ratification 5
2.9. Informal Action by Directors 5
2.10. Telephonic Meetings Permitted 6
2.11. Notice of Stockholder Nomination and Stockholder Business 6
2.12. Independent Directors 7
ARTICLE III -- COMMITTEES
3.1. Committees of the Board of Directors 8
3.2. Election and Vacancies 8
3.3. Procedure; Quorum 8
3.4. Finance Committee 9
3.5. Audit Committee 9
3.6. Executive Compensation Committee 9
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Page
3.7. Public Policy Committee 10
3.8. Committee on Director Affairs 10
3.9. Capital Stock Committee 10
ARTICLE IV -- OFFICERS
4.1. Elected Officers 11
4.2. Chief Executive Officer 11
4.3. President 12
4.4. Treasurer 12
4.5. Secretary 12
4.6. Comptroller 12
4.7. General Counsel 12
4.8. General Auditor 12
4.9. Chief Tax Officer 13
4.10. Subordinate Officers 13
4.11. Resignation, Removal, Suspension and Vacancies 13
ARTICLE V -- INDEMNIFICATION
5.1. Right to Indemnification of Directors and Officers 14
5.2. Advancement of Expenses of Directors and Officers 14
5.3. Claims by Officers or Directors 14
5.4. Indemnification of Employees 15
5.5. Advancement of Expenses of Employees 15
5.6. Non-Exclusivity of Rights 15
5.7. Other Indemnification 15
5.8. Insurance 15
5.9. Amendment or Repeal 16
ARTICLE VI -- MISCELLANEOUS
6.1. Offices 16
6.2. Stock Certificates 16
6.3. Seal 16
6.4. Dividends on Preferred Stock 17
6.5. Fiscal Year 17
6.6. Annual Report 17
6.7. Notice 17
6.8. Waiver of Notice 17
6.9. Voting of Stocks Owned by the Corporation 17
6.10. Form of Records 18
6.11. Amendment of By-Laws 18
6.12. Anti-Greenmail 18
6.13. Gender Pronouns 19
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Page
DEFINITION OF CERTAIN TERMS USED IN AND GUIDELINES
FOR THE APPLICATION OF BY-LAW 2.12 OF GENERAL MOTORS
CORPORATION i
SECURITIES ACT AND EXCHANGE ACT PARAGRAPH 2 OF
INSTRUCTIONS TO PARAGRAPH (b) OF ITEM 404 OF
REGULATION S-K AS IN EFFECT ON JANUARY 7, 1991
(REFERRED TO IN PARAGRAPH (i) OF GUIDELINES FOR
APPLICATION OF BY-LAW 2.12 OF GENERAL MOTORS
CORPORATION) iv
DEFINITION OF CERTAIN TERMS USED IN BY-LAW 6.12 v
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GENERAL MOTORS CORPORATION
BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1. Annual.
The annual meeting of stockholders for the election of directors, ratification
or rejection of the selection of auditors and the transaction of such other
business as may properly be brought before the meeting shall be held on the
third Friday following the first Monday in May in each year, or on such other
date and at such place and time as the chairman of the board or the board of
directors shall designate.
1.2. Special.
Special meetings of stockholders may be called by the board of directors or
the chairman of the board of directors at such place, date and time and for
such purpose or purposes as shall be set forth in the notice of such meeting.
1.3. Notice of Meetings.
Written notice of each meeting of stockholders shall be given by the chairman
of the board and/or the secretary in compliance with the provisions of
Delaware law.
1.4. List of Stockholders Entitled to Vote.
The secretary shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be inspected by
any stockholder who is present.
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1.5. Quorum.
At each meeting of stockholders, except where otherwise provided by law or the
certificate of incorporation or these by-laws, the holders of one-third of the
voting power of the outstanding shares of stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote,
adjourn the meeting from time to time in the manner provided in Section 1.9 of
these by-laws until a quorum shall attend. Shares of its own stock belonging
to the corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other corporation is
held, directly or indirectly, by the corporation, shall neither be entitled to
vote nor be counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of the corporation to vote stock, including but not
limited to its own stock, held by it in a fiduciary capacity.
1.6. Organization.
The chairman or, if he so designates or is absent, the chief executive officer
or, in their absence, an executive vice president or vice president designated
by the board of directors, shall preside at meetings of the stockholders. The
secretary of the corporation shall act as secretary, but in his absence the
presiding officer may appoint a secretary.
1.7. Voting; Proxies.
Each stockholder shall be entitled to vote in accordance with the number of
shares and voting powers of the voting shares held of record by him. Each
stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for him by proxy, but such proxy, whether
revocable or irrevocable, shall comply with the requirements of Delaware law.
Voting at meetings of stockholders, on other than the election of directors,
need not be by written ballot unless the holders of a majority of the
outstanding shares of all classes of stock entitled to vote thereon present in
person or by proxy at such meeting shall so determine. At all meetings of
stockholders for the election of directors a plurality of the voting power of
the shares of stock present in person or represented by proxy and entitled to
vote shall be sufficient. All other elections and questions shall, unless
otherwise provided by law or by the certificate of incorporation or these by-
laws, be decided by the vote of the holders of a majority of the voting power
of the shares of stock entitled to vote thereon present in person or by proxy
at the meeting.
1.8. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled: (a) to
notice of or to vote at any meeting of stockholders or any adjournment
thereof; (b) to express consent to corporate action in writing without a
meeting; (c) to receive payment of any dividend or other distribution or
allotment of any rights; or (d) to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix a record date. The record date shall
not precede the date upon which the resolution fixing the record date is
adopted by the board of directors and which record date: (a) in the case of
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determination of stockholders entitled to vote at any meeting of stockholders
or adjournment thereof, shall not be more than sixty nor less than ten days
before the date of such meeting; (b) in the case of determination of
stockholders entitled to express consent to corporate action in writing
without a meeting, shall not be more than ten days from the date upon which
the resolution fixing the record date is adopted by the board of directors;
and (c) in the case of any other action, shall not be more than sixty days
prior to such other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the board of directors
may fix a new record date for the adjourned meeting.
1.9. Adjournments.
Any meeting of stockholders, annual or special, may adjourn from time to time
to reconvene at the same or some other place, and notice need not be given of
any such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
1.10. Judges.
All votes by ballot at any meeting of stockholders shall be conducted by two
judges appointed for the purpose, either by the directors or by the chairman
of the meeting. The judges shall decide upon the qualifications of voters,
count the votes and declare the result.
ARTICLE II
BOARD OF DIRECTORS
2.1. Responsibility and Number.
The business and affairs of the corporation shall be managed by or under the
direction of a board of directors. The number of directors shall be
determined from time to time by resolution of the board of directors, but the
total number of directors shall not be less than twelve or more than twenty.
2.2. Election; Resignation; Vacancies.
At each annual meeting of stockholders, the stockholders shall elect directors
each of whom shall hold office for a term commencing on the date of the annual
meeting of stockholders, or such later date as shall be determined by the
board of directors, and ending on the next annual meeting of stockholders, or
until his successor is elected and qualified. Any director may resign at any
time upon written notice to the chairman of the board or to the secretary.
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Any vacancy occurring in the board of directors for any cause may be filled by
a majority of the remaining members of the board of directors, although such
majority is less than a quorum. Each director so elected shall hold office
concurrent with the term of other directors or until his successor is elected
and qualified.
2.3. Regular Meetings.
Unless otherwise determined by resolution of the board of directors, a meeting
of the board of directors for the election of officers and the transaction of
such other business as may come before it shall be held as soon as practicable
following the annual meeting of stockholders, and other regular meetings of
the board of directors shall be held either on the first Monday of each month,
and if that be a legal holiday, then on the next Monday not a legal holiday,
or such other days as may from time to time be designated by the chairman of
the board of directors.
2.4. Special Meetings.
Special meetings of the board of directors may be called by the chairman of
the board of directors, the chief executive officer, the president or a vice
chairman, and shall be called by the secretary at the request in writing of
one-third of the directors then in office. Notice of a special meeting of the
board of directors shall be given at least twenty-four hours before the
special meeting.
2.5. Quorum; Vote Required for Action.
At all meetings of the board of directors, one-third of the whole board shall
constitute a quorum for the transaction of business. Except in cases in which
applicable law, the certificate of incorporation or these by-laws otherwise
provide, the vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the board of directors.
2.6. Organization.
At its last meeting before, or first meeting after, the annual meeting of
stockholders, the board of directors shall elect one of its members to be
chairman of the board. The chairman of the board may but need not be an
officer of or employed in an executive or any other capacity by the
corporation.
The chairman of the board of directors shall preside at meetings of the board
of directors and lead the board in fulfilling its responsibilities as defined
in section 2.1 and, in particular, its responsibilities to oversee the
performance of the corporation and of the executive management of the
corporation. The chairman of the board of directors shall be an ex-officio
member of each of the standing committees of the board of directors.
The chairman of the board of directors, or in his absence, the chief executive
officer, the president or a vice chairman (in the order stated), or in their
absence a member of the board selected by the members present, shall preside
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at meetings of the board. The secretary of the corporation shall act as
secretary, but in his absence the presiding officer may appoint a secretary.
2.7. Transactions with Corporation.
No contract or transaction between the corporation and one or more of its
directors, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void or voidable for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose: (1) if the material facts as to his
relationship or interest and as to the contract or transaction are disclosed
or are known to the board of directors or the committee, and the board or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (2) if the material
facts as to his relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and
the contract or transaction is specifically approved in good faith by vote of
the stockholders; or (3) if the contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified, by the
board of directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the board of directors or of a committee which
authorizes the contract or transaction.
2.8. Ratification.
Any transaction questioned in any stockholders' derivative suit on the ground
of lack of authority, defective or irregular execution, adverse interest of
director, officer or stockholder, non-disclosure, miscomputation, or the
application of improper principles or practices of accounting may be ratified
before or after judgment, by the board of directors or by the stockholders in
case less than a quorum of directors are qualified; and, if so ratified, shall
have the same force and effect as if the questioned transaction had been
originally duly authorized, and said ratification shall be binding upon the
corporation and its stockholders and shall constitute a bar to any claim or
execution of any judgment in respect of such questioned transaction.
2.9. Informal Action by Directors.
Unless otherwise restricted by the certificate of incorporation or these by-
laws, any action required or permitted to be taken at any meeting of the board
of directors, or of any committee thereof, may be taken without a meeting if
all members of the board or such committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
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2.10. Telephonic Meetings Permitted.
Members of the board of directors, or any committee designated by the board,
may participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this by-law shall constitute presence in person at such
meeting.
2.11. Notice of Stockholder Nomination and Stockholder Business.
At a meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. Nominations for the
election of directors may be made by the board of directors or by any
stockholder entitled to vote for the election of directors. Other matters to
be properly brought before the meeting must be: (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the board
of directors, including matters covered by rule 14a-8 of the Securities and
Exchange Commission; (b) otherwise properly brought before the meeting by or
at the direction of the board of directors; or (c) otherwise properly brought
before the meeting by a stockholder.
A notice of the intent of a stockholder to make a nomination or to bring any
other matter before the meeting shall be made in writing and received by the
secretary of the corporation not more than 180 days and not less than 120 days
in advance of the annual meeting or, in the event of a special meeting of
stockholders, such notice shall be received by the secretary of the
corporation not later than the close of the fifteenth day following the day on
which notice of the meeting is first mailed to stockholders.
Every such notice by a stockholder shall set forth:
(a) the name and residence address of the stockholder of the corporation who
intends to make a nomination or bring up any other matter;
(b) a representation that the stockholder is a holder of the corporation's
voting stock and intends to appear in person or by proxy at the meeting to
make the nomination or bring up the matter specified in the notice;
(c) with respect to notice of an intent to make a nomination, a description of
all arrangements or understandings among the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder;
(d) with respect to notice of an intent to make a nomination, such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been
nominated by the board of directors of the corporation; and
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(e) with respect to notice of an intent to bring up any other matter, a
description of the matter, and any material interest of the stockholder in the
matter.
Notice of intent to make a nomination shall be accompanied by the written
consent of each nominee to serve as director of the corporation if so elected.
At the meeting of stockholders, the chairman shall declare out of order and
disregard any nomination or other matter not presented in accordance with this
section.
2.12. Independent Directors.
(a) Majority of Board's Nominees in Annual Proxy Statement for Election to
Board of Directors to be Independent. A majority of the individuals to
constitute the nominees of the board of directors for the election of whom the
board will solicit proxies from the stockholders for use at the corporation's
annual meeting shall consist of individuals who, on the date of their
selection as the nominees of the board of directors, would be Independent
Directors.
(b) Directors Elected by Board of Directors. In the event the board of
directors elects directors between annual meetings of stockholders, the number
of such directors who qualify as Independent Directors on the date of their
nomination shall be such that the majority of all directors holding office
immediately thereafter shall have been Independent Directors on the date of
the first of their nomination or selection as nominees of the board of
directors.
(c) Definition of Independent Director. For purposes of this by-law, the term
"Independent Director" shall mean a director who: (i) is not and has not been
employed by the corporation or its subsidiaries in an executive capacity
within the five years immediately prior to the annual meeting at which the
nominees of the board of directors will be voted upon; (ii) is not (and is not
affiliated with a company or a firm that is) a significant advisor or
consultant to the corporation or its subsidiaries; (iii) is not affiliated
with a significant customer or supplier of the corporation or its
subsidiaries; (iv) does not have significant personal services contract(s)
with the corporation or its subsidiaries; (v) is not affiliated with a tax-
exempt entity that receives significant contributions from the corporation or
its subsidiaries; and (vi) is not a spouse, parent, sibling or child of any
person described by (i) through (v).
(d) Interpretation and Application of This By-Law. The board of directors
shall have the exclusive right and power to interpret and apply the provisions
of this by-law, including, without limitation, the adoption of written
definitions of terms used in and guidelines for the application of this by-law
(any such definitions and guidelines shall be filed with the Secretary, and
such definitions and guidelines as may prevail shall be made available to any
stockholder upon written request); any such definitions or guidelines and any
other interpretation or application of the provisions of this by-law made in
good faith shall be binding and conclusive upon all holders of GM Equity
Securities, provided that, in the case of any interpretation or application of
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this by-law by the board of directors to a specific person which results in
such person being classified as an Independent Director, the board of
directors shall have determined that such person is independent of management
and free from any relationship that, in the opinion of the board of directors,
would interfere with such person's exercise of independent judgment as a board
member.
ARTICLE III
COMMITTEES
3.1. Committees of the Board of Directors.
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, consisting of one or more of the
directors of the corporation, to be committees of the board of directors
("committees of the board"). All committees of the board may authorize the
seal of the corporation to be affixed to any papers which may require it. To
the extent provided in any resolution of the board of directors or these by-
laws, and to the extent permissible under the laws of the State of Delaware
and the certificate of incorporation, any such committee shall have and may
exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation.
The following committees shall be standing committees of the board: the
finance committee, the audit committee, the executive compensation committee,
the public policy committee, the committee on director affairs and the capital
stock committee. The board of directors may designate, by resolution adopted
by a majority of the whole board, additional committees of the board and may
prescribe for each such committee such powers and authority as may properly be
granted to such committees in the management of the business and affairs of
the corporation.
3.2. Election and Vacancies.
The members and chairmen of each standing committee of the board shall be
elected annually by the board of directors at its first meeting after each
annual meeting of stockholders or at any other time the board of directors
shall determine. The members of other committees of the board may be elected
at such time as the board may determine. Vacancies in any committee of the
board may be filled at such time and in such manner as the board of directors
shall determine.
3.3. Procedure; Quorum.
Except to the extent otherwise provided in these by-laws or any resolution of
the board of directors, each committee of the board and each committee of the
corporation may fix its own rules of procedure.
The members necessary to constitute a quorum of any committee of the board or
committee of the corporation shall be one-third of the members thereof, or
such larger number as shall be set forth in the by-laws, or as shall be
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determined from time to time by resolution of the board of directors. The
vote of a majority of the members present at a meeting of a committee of the
board or committee of the corporation at which meeting a quorum is present
shall be the act of the committee unless the certificate of incorporation, the
by-laws or a resolution of the board of directors shall require the vote of a
greater number.
3.4. Finance Committee.
The board of directors shall select the members of the finance committee and
shall designate the chairman of the committee. Except for powers hereinafter
assigned to the audit committee and the incentive and compensation committee,
or as otherwise provided by the board of directors, the finance committee
shall have and may exercise the powers, authority and responsibilities of the
board of directors for the determination of the financial policies of the
corporation and the management of the financial affairs of the corporation.
3.5. Audit Committee.
The board of directors shall select the members of the audit committee and
shall designate the chairman of the committee. No officer of the corporation
shall be a member of the audit committee. The members of the audit committee
shall not be eligible to participate in any incentive compensation plan for
employees of the corporation or any of its subsidiaries. The selection by the
committee of accountants for the ensuing calendar year shall be made annually
in advance of the annual meeting of stockholders and shall be submitted to the
stockholders for ratification or rejection at such meeting. The audit
committee shall have and may exercise such powers, authority and
responsibilities as are normally incident to the functions of an audit
committee or as may be determined by the board of directors.
3.6. Executive Compensation Committee.
The board of directors shall select the members of the executive compensation
committee and shall designate the chairman of the committee. No officer of
the corporation shall be a member of the committee. No member of the
committee shall be eligible to participate in any plan falling within the
jurisdiction of the committee. The committee shall have and may exercise the
powers and authority granted to it by any incentive compensation plan for
employees of the corporation or any of its subsidiaries, and such other
powers, authority and responsibilities as may be determined by the board of
directors.
The committee shall determine the compensation of: (a) employees of the
corporation who are directors of the corporation; and (b) after receiving and
considering the recommendation of the chief executive officer and the
president of the corporation, all other employees of the corporation who are
officers of the corporation or who occupy such other positions as may be
designated by the committee.
Where compensation is payable to an employee of any subsidiary and such
employee is also a director or officer of the corporation or one of its
subsidiaries, or where such employee occupies such other position as may be
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designated by the committee and such compensation is determined by or on
behalf of such subsidiary, the amount so determined shall first be submitted
to the committee for its review. No such determination shall be effective if
it would result in compensation which, in the aggregate or with respect to any
one or more of such employees, would exceed amounts or rates established or
approved by the committee.
Where any employee benefit or incentive compensation plan affects employees of
the corporation or its subsidiaries and the compensation of such employees is
determined or subject to review by the committee, such plan shall first be
submitted to the committee for its review. Any such plan or amendment or
modification shall be made effective with respect to such employees only if
and to the extent approved by the committee.
3.7. Public Policy Committee.
The board of directors shall select the members of the public policy
committee, and shall designate the chairman of the committee. The committee
shall, upon its own initiative or otherwise, inquire into all phases of the
corporation's business activities that relate to matters of public policy.
The committee may make recommendations to the board of directors to assist it
in the formulation and adoption of basic policies calculated to promote the
best interests of the corporation and the community. The public policy
committee shall have and may exercise such other powers, authority and
responsibilities as may be determined by the board of directors.
3.8. Committee on Director Affairs.
The board of directors shall select the members of the committee on director
affairs, and shall designate the chairman of the committee. The committee
shall be responsible for matters related to service on the board of directors
of the corporation, and associated issues of corporate governance. The
committee from time to time shall conduct studies of the size and composition
of the board of directors. Prior to each annual meeting of stockholders, the
committee shall recommend to the board the individuals to constitute the
nominees of the board of directors, the election of whom the board will
solicit proxies. The committee shall review the qualifications of individuals
for consideration as director candidates and shall recommend to the board, for
its consideration, the names of individuals for election by the board. In
addition, the committee shall from time to time conduct studies and make
recommendations to the board regarding compensation of directors. The
committee shall have and may exercise such other powers, authority and
responsibilities as may be determined by the board of directors.
3.9. Capital Stock Committee.
The board of directors shall select the members of the capital stock committee
and shall designate the chairman of the committee. No officer of the
corporation shall be a member of the committee. The committee shall be
responsible for reviewing the policies, programs and practices of the
corporation relating to: (a) the business and financial relationships between
the corporation or any of its units with Electronic Data Systems Corporation
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(EDS), the corporation or any of its units with GM Hughes Electronics
Corporation (GMHE) and between EDS and GMHE; (b) dividends in respect of,
disclosures to stockholders and the public concerning, and transactions by the
corporation or any of its subsidiaries in, shares of Class E Common Stock or
Class H Common Stock; and (c) any matters arising in connection therewith, all
to the extent the committee may deem appropriate, and to recommend such
changes in such policies, programs and practices as the committee may deem
appropriate. In performing this function, the committee's role is not to make
decisions concerning matters referred to its attention, but rather to oversee
the process by which decisions concerning such matters are made. The
committee shall have and may exercise such other powers, authority and
responsibilities as may be determined by the board of directors.
ARTICLE IV
OFFICERS
4.1. Elected Officers.
The officers of the corporation shall be elected by the board of directors.
There shall be a chief executive officer, a president, one or more executive
vice presidents, one or more vice presidents, a secretary, a treasurer, a
comptroller, a general counsel, a general auditor and a chief tax officer.
The chief executive officer and the president shall be members of the board of
directors and shall have the other powers, authority and responsibilities
provided by these by-laws. The officers, other than the chief executive
officer and the president, shall each have, in addition to the powers,
authority and responsibilities of those officers otherwise provided by the by-
laws, such powers, authority and responsibilities as the board of directors or
the chief executive officer may determine. The board of directors may also
elect persons to hold such other offices as the board of directors shall
determine, including one or more vice chairmen of the board. A person may
hold any number of offices. Elected officers shall hold their offices at the
pleasure of the board of directors, or until their earlier resignation.
4.2. Chief Executive Officer.
The chief executive officer shall have the general executive responsibility
for the conduct of the business and affairs of the corporation. If the
chairman so designates or is absent, the chief executive officer shall preside
at meetings of the stockholders. He shall exercise such other powers,
authority and responsibilities as the board of directors may determine.
In the absence of or during the physical disability of the chief executive
officer, the board of directors shall designate an officer who shall have and
exercise the powers, authority and responsibilities of the chief executive
officer.
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4.3. President.
The president shall have and exercise such powers, authority and
responsibilities as the board of directors may determine.
4.4. Treasurer.
The treasurer shall have custody of all funds and securities of the
corporation and shall perform all acts incident to the position of treasurer.
He shall render such accounts and reports as may be required by the board of
directors. The records, books and accounts of the office of the treasurer
shall, during the usual hours for business at the office of the treasurer, be
open to the examination of any director.
4.5. Secretary.
The secretary shall keep the minutes of all meetings of stockholders and
directors and of such committees of the board of directors as to which he may
be so directed. He shall give all required notices and shall have charge of
such books and papers as the board of directors may require. He shall submit
such reports to the board of directors or to any of the committees of the
board or committees of the corporation as the board of directors or any such
committee may require. Any action or duty required to be performed by the
secretary may be performed by an assistant secretary.
4.6. Comptroller.
The comptroller shall be in charge of the accounts of the corporation and
shall perform all acts incident to the position of comptroller. He shall
submit such reports and records to the board of directors or to any of the
committees of the board or committees of the corporation as the board of
directors or any such committee may require.
4.7. General Counsel.
The board of directors shall elect a general counsel who shall be the chief
legal officer of the corporation. He shall have general control of all
matters of legal import concerning the corporation and shall have such other
powers, authority and responsibilities as may be determined by the board of
directors or the chief executive officer.
4.8. General Auditor.
The general auditor shall have such powers, authority and responsibilities as
are incident to the position of general auditor in the performance of an
independent audit activity of the corporation and shall have direct access to
the audit committee.
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4.9. Chief Tax Officer.
The chief tax officer shall have responsibility for all tax matters involving
the corporation, with authority to sign and to delegate to others authority to
sign all returns, reports, agreements and documents involving the
administration of the corporation's tax affairs.
4.10. Subordinate Officers.
The board of directors may from time to time appoint one or more assistant
secretaries, assistant treasurers, assistant comptrollers, and such other
subordinate officers as the board of directors may deem advisable. Such
subordinate officers shall have such powers, authority and responsibilities as
the board of directors may from time to time determine. The board of
directors may grant to any committee of the board or the chief executive
officer the power and authority to appoint subordinate officers and to
prescribe their respective terms of office, powers, authority and
responsibilities. Each subordinate officer shall hold his position at the
pleasure of the board of directors, the committee of the board appointing him,
the chief executive officer and any other officer to whom such subordinate
officer reports.
In the interval between annual organizational meetings of the board of
directors, the chief executive officer shall have the power and authority to
appoint such subordinate officers. Such subordinate officers shall serve
until the first meeting of the board of directors immediately following the
annual meeting of stockholders.
4.11. Resignation, Removal, Suspension and Vacancies.
Any officer may resign at any time by giving written notice to the chief
executive officer, the president or the secretary. Unless stated in the
notice of resignation, the acceptance thereof shall not be necessary to make
it effective. It shall take effect at the time specified therein or, in the
absence of such specification, it shall take effect upon the receipt thereof.
Any officer elected by the board of directors may be suspended or removed at
any time by the affirmative vote of a majority of the whole board. Any
subordinate officer of the corporation appointed by the board of directors or
a committee of the board, or the chief executive officer, may be suspended or
removed at any time by a majority vote of a quorum of the board of directors
or committee appointing such subordinate officer, or by the chief executive
officer or any other officer to whom such subordinate officer reports.
The chief executive officer may suspend the powers, authority,
responsibilities and compensation of any elected officer or appointed
subordinate officer for a period of time sufficient to permit the board or the
appropriate committee of the board a reasonable opportunity to consider and
act upon a resolution relating to the reinstatement, further suspension or
removal of such person.
As appropriate, the board of directors, a committee of the board, and/or the
chief executive officer may fill any vacancy created by the resignation,
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death, retirement or removal of an officer in the same manner as provided for
the election or appointment of such person.
ARTICLE V
INDEMNIFICATION
5.1. Right to Indemnification of Directors and Officers.
Subject to the other provisions of this article, the corporation shall
indemnify and advance expenses to every director and officer (and to such
person's heirs, executors, administrators or other legal representatives) in
the manner and to the full extent permitted by applicable law as it presently
exists, or may hereafter be amended, against any and all amounts (including
judgments, fines, payments in settlement, attorneys' fees and other expenses)
reasonably incurred by or on behalf of such person in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("a proceeding"), in which such
director or officer was or is made or is threatened to be made a party or is
otherwise involved by reason of the fact that such person is or was a director
or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, fiduciary or member of any other
corporation, partnership, joint venture, trust, organization or other
enterprise. The corporation shall not be required to indemnify a person in
connection with a proceeding initiated by such person if the proceeding was
not authorized by the board of directors of the corporation.
5.2. Advancement of Expenses of Directors and Officers.
The corporation shall pay the expenses of directors and officers incurred in
defending any proceeding in advance of its final disposition ("advancement of
expenses"); provided, however, that the payment of expenses incurred by a
director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the director or officer
to repay all amounts advanced if it should be ultimately determined that the
director or officer is not entitled to be indemnified under this article or
otherwise.
5.3. Claims by Officers or Directors.
If a claim for indemnification or advancement of expenses by an officer or
director under this article is not paid in full within ninety days after a
written claim therefor has been received by the corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the corporation shall have the burden of proving
that the claimant was not entitled to the requested indemnification or
advancement of expenses under applicable law.
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5.4. Indemnification of Employees.
Subject to the other provisions of this article, the corporation may indemnify
and advance expenses to every employee who is not a director or officer (and
to such person's heirs, executors, administrators or other legal
representatives) in the manner and to the full extent permitted by applicable
law as it presently exists, or may hereafter be amended against any and all
amounts (including judgments, fines, payments in settlement, attorneys' fees
and other expenses) reasonably incurred by or on behalf of such person in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative ("a
proceeding"), in which such employee was or is made or is threatened to be
made a party or is otherwise involved by reason of the fact that such person
is or was an employee of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee, fiduciary or member of
any other corporation, partnership, joint venture, trust, organization or
other enterprise. The ultimate determination of entitlement to
indemnification of employees who are not officers and directors shall be made
by the board of directors or by a committee of the board of directors in such
manner as the board or such committee shall determine. The corporation shall
not be required to indemnify a person in connection with a proceeding
initiated by such person if the proceeding was not authorized by the board of
directors of the corporation.
5.5. Advancement of Expenses of Employees.
The advancement of expenses of an employee who is not an officer or director
shall be made by or in the manner provided by resolution of the board of
directors or by a committee of the board of directors or of the corporation.
5.6. Non-Exclusivity of Rights.
The rights conferred on any person by this Article V shall not be exclusive of
any other rights which such person may have or hereafter acquire under any
statute, provision of the certificate of incorporation, these by-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
5.7. Other Indemnification.
The corporation's obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer or employee of another
corporation, partnership, joint venture, trust, organization or other
enterprise shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture,
trust, organization or other enterprise.
5.8. Insurance.
The board of directors may, to the full extent permitted by applicable law as
it presently exists, or may hereafter be amended from time to time, authorize
an appropriate officer or officers to purchase and maintain at the
corporation's expense insurance: (a) to indemnify the corporation for any
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obligation which it incurs as a result of the indemnification of directors,
officers and employees under the provisions of this Article V; and (b) to
indemnify or insure directors, officers and employees against liability in
instances in which they may not otherwise be indemnified by the corporation
under the provisions of this Article V.
5.9. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this Article V shall
not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE VI
MISCELLANEOUS
6.1. Offices.
The registered office of the corporation shall be located at 1209 Orange
Street, Wilmington, New Castle County, Delaware, and the name of the
registered agent in charge thereof shall be The Corporation Trust Company.
The corporation may also have other offices without as well as within the
State of Delaware. The books of the corporation may be kept outside the State
of Delaware.
6.2. Stock Certificates.
Every holder of stock shall be entitled to have a certificate signed by or in
the name of the corporation by the chairman or a vice chairman of the board of
directors, or the president or a vice president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him in the corporation.
The form of such certificates and the signatures thereon shall comply with the
requirements of Delaware law. The corporation shall maintain a record of the
holders of each certificate and transfer stock and issue new certificates to
replace lost, stolen or destroyed certificates only pursuant to the applicable
requirements of Delaware law as they presently exist, or may be amended from
time to time.
6.3. Seal.
The corporate seal shall have inscribed upon it the name of the corporation,
the year of its organization and the words "Corporate Seal," and "Delaware."
The seal shall be in the charge of the secretary. The board of directors or
the finance committee may authorize a duplicate seal to be kept and used by
any other officer.
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6.4. Dividends on Preferred Stock.
All dividends declared upon the preferred stock shall be payable quarterly
upon the first day of February, May, August and November in each year, but if
that is a legal holiday, then on the next day not a legal holiday.
6.5. Fiscal Year.
The fiscal year of the corporation shall begin on January 1st and terminate on
December 31st in each year.
6.6. Annual Report.
At least fifteen days in advance of the annual meeting of stockholders, the
board of directors shall publish and submit to the stockholders consolidated
financial statements for the previous fiscal year. The board of directors
shall also publish consolidated financial statements for each of the first
three quarters of each fiscal year.
6.7. Notice.
Any notice required to be given by these by-laws may be given personally or in
writing by delivery to the United States postal system in a postpaid envelope
directed to such address as appears in the records of the corporation, or, in
default of other address, to the general post office in Wilmington, New Castle
County, Delaware. Such notice shall be deemed to be given at the time of
mailing, except as otherwise provided in these by-laws. In addition, except
as otherwise required by law or these by-laws, notice need not be given of any
adjourned meeting other than by announcement at the meeting which is being
adjourned.
6.8. Waiver of Notice.
Whenever any notice is required to be given, a waiver thereof in writing,
signed by the person or persons entitled to the notice, whether before or
after the time stated therein, shall be deemed equivalent thereto. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
6.9. Voting of Stocks Owned by the Corporation.
The board of directors, the finance committee or the chairman of the board may
authorize any person, and delegate to one or more other officers, the
authority to authorize any person in behalf of the corporation to attend, vote
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and grant proxies to be used at any meeting of stockholders of any corporation
in which General Motors Corporation may hold stock.
6.10. Form of Records.
Any records maintained by the corporation in the regular course of its
business, including its stock ledger, books of account, and minute books, may
be kept on, or be in the form of, punch cards, magnetic tape, photographs,
microphotographs, or any other information storage device, provided that the
records so kept can be converted into clearly legible form within a reasonable
time. The corporation shall so convert any records so kept upon the request
of any person entitled to inspect the same.
6.11. Amendment of By-Laws.
The board of directors shall have power to adopt, amend or repeal the by-laws
at any regular or special meeting of the directors. The stockholders shall
also have power to adopt, amend or repeal the by-laws at any annual or special
meeting, subject to compliance with the notice provisions provided in section
2.11.
6.12. Anti-Greenmail.
(a) Vote Required for Certain Acquisitions of Securities. Except as set forth
in Subsection (b) hereof, in addition to any affirmative vote of stockholders
required by any provision of law, the certificate of incorporation or by-laws
of the corporation, or any policy adopted by the board of directors, neither
the corporation nor any subsidiary shall knowingly effect any direct or
indirect purchase or other acquisition of any GM Equity Security of any class
or classes issued by the corporation at a price which is in excess of the
highest Market Price of such GM Equity Security on the largest principal
national securities exchange in the United States on which such security is
listed for trading on the date that the understanding to effect such
transaction is entered into by the corporation (whether or not such
transaction is concluded or a written agreement relating to such transaction
is executed on such date, such date to be conclusively established by
determination of the board of directors), from any Interested Person (i.e.,
any person who is the direct or indirect beneficial owner of more than three
percent (3%) of the aggregate voting power of the Voting Shares of the
corporation) who has beneficially owned such GM Equity Securities for less
than two years prior to such date, without the affirmative vote of the holders
of the Voting Shares which represent at least a majority of the aggregate
voting power of the corporation, excluding Voting Shares beneficially owned by
such Interested Person, voting together as a single class. Such affirmative
vote shall be required notwithstanding the fact that no vote may be required,
or that a lesser percentage may be specified, by law or any agreement with any
national securities exchange, or otherwise.
(b) When A Vote Is Not Required. The provisions of Section (a) hereof shall
not be applicable with respect to:
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(i) any purchase, acquisition, redemption or exchange of GM Equity
Securities, the purchase, acquisition, redemption or exchange of
which, at the time any such transaction is entered into, is provided
for in the corporation's certificate of incorporation (including any
resolution or resolutions of the board of directors providing for the
issuance of Preferred Stock or Preference Stock by the corporation);
(ii) any purchase or other acquisition of GM Equity Securities made as
part of a tender or exchange offer by the corporation to purchase
securities of the same class made on the same terms to all holders of
such securities and complying with the applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations thereunder (or any successor provisions to
such Act, rules or regulations);
(iii) any purchase or acquisition of GM Equity Securities made
pursuant to an open market purchase program which has been approved
by the board of directors; or
(iv) any purchase or acquisition of GM Equity Securities made from, or
any purchase or acquisition of GM Equity Securities made pursuant to
or on behalf of, an employee benefit plan maintained by the
corporation, or any subsidiary or any trustee of, or fiduciary with
respect to any such plan when acting in such capacity.
(c) Interpretation of This By-Law. The board of directors shall have the
exclusive right and power to interpret the provisions of this by-law,
including, without limitation, the adoption of written definitions of terms
used in this by-law (any such definitions shall be filed with the Secretary,
and such definitions as may prevail shall be made available to any stockholder
upon written request); any such interpretation made in good faith shall be
binding and conclusive upon all holders of GM Equity Securities.
6.13. Gender Pronouns.
Whenever the masculine pronoun is used herein it shall be deemed to refer to
either the masculine or the feminine gender.
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DEFINITIONS OF CERTAIN TERMS
USED IN
AND
GUIDELINES FOR THE APPLICATION
OF
BY-LAW 2.12
OF
GENERAL MOTORS CORPORATION
Certain Definitions.
For purposes of Section 2.12 of the By-Laws of General Motors Corporation,
(the "Corporation") the board of directors has adopted the following
definitions, effective January 7, 1991.
(i) "Affiliate" of a person, or a person "affiliated with," a
specified person, shall mean a person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or
is under common control with, the specified person.
(ii) The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") shall mean the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person, whether through
the ownership of voting securities, by contract, or otherwise;
provided, however, that a person shall not be deemed to control
another person solely because he or she is a director of such other
person.
(iii) "GM Equity Security" shall mean any security described in
Section 3(a)(11) of the Exchange Act, as of the effective date
hereof, which is issued by GM and traded on a national securities
exchange or the NASDAQ National Market System.
(iv) A "subsidiary" of the Corporation shall mean any corporation a
majority of the voting stock of which is owned, directly or
indirectly through one or more other subsidiaries, by the
Corporation.
(v) The employment of a person by the Corporation or its subsidiaries
shall be deemed to be in an "executive capacity" during the period
that such person (A) served as an elected officer of the Corporation
or one of its subsidiaries, or (B) reported directly to a person who
served as an elected officer of the Corporation or one of its
subsidiaries.
(vi) A person shall be deemed to be, or to be affiliated with, a
company or firm that is a "significant advisor or consultant to the
corporation or its subsidiaries" if he, she or it, as the case may
be, received or would receive fees or similar compensation from the
Corporation or a subsidiary of the Corporation in excess of the
lesser of (A) three percent (3%) of the consolidated gross revenues
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which the Corporation and its subsidiaries received for the sale of
their products and services during the last fiscal year of the
Corporation; (B) five percent (5%) of the gross revenues of the
person during the last calendar year, if such person is a self-
employed individual, or (C) five percent (5%) of the consolidated
gross revenues received by such company or firm for the sale of its
products and services during its last fiscal year, if the person is a
company or firm; provided, however, that directors' fees and expense
reimbursements shall not be included in the gross revenues of an
individual for purposes of this determination.
(vii) A "significant customer of the corporation and its subsidiaries"
shall mean a customer from which the Corporation and its subsidiaries
collectively in the last fiscal year of the Corporation received
payments in consideration for the products and services of the
Corporation and its subsidiaries which are in excess of three percent
(3%) of the consolidated gross revenues of the Corporation and its
subsidiaries during such fiscal year.
(viii) A "significant supplier of the corporation and its
subsidiaries" shall mean a supplier to which the Corporation and its
subsidiaries collectively in the last fiscal year of the Corporation
made payments in consideration for the supplier's products and
services in excess of three percent (3%) of the consolidated gross
revenues of the Corporation and its subsidiaries during such fiscal
year.
(ix) The Corporation and its subsidiaries shall be deemed a
"significant customer of a company" if the Corporation and its
subsidiaries collectively were the direct source during such
company's last fiscal year of in excess of five percent (5%) of the
gross revenues which such company received for the sale of its
products and services during that year.
(x) The Corporation and its subsidiaries shall be deemed a
"significant supplier of a company" if the Corporation and its
subsidiaries collectively received in such company's last fiscal year
payments from such company in excess of five percent (5%) of the
gross revenues which such company received during that year for the
sale of its products and services.
(xi) A person shall be deemed to have "significant personal services
contract(s) with the corporation or its subsidiaries" if the fees and
other compensation received by the person pursuant to personal
services contract(s) with the Corporation or its subsidiaries
exceeded or would exceed five percent (5%) of his or her gross
revenues during the last calendar year.
(xii) A tax-exempt entity shall be deemed to receive "significant
contributions" from the Corporation or its subsidiaries if such tax-
exempt entity received during its last fiscal year, or expects to
receive during its current fiscal year, contributions from the
Corporation or its subsidiaries in excess of the lesser of either
(A) three percent (3%) of the consolidated gross revenues of the
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Corporation and its subsidiaries during its last fiscal year, or
(B) five percent (5%) of the contributions received by the tax-exempt
entity during its last fiscal year.
Guidelines for Application.
(i) For purposes of identifying payments for products and services
contemplated by the definitions set forth above, and performing the
related calculations, the board of directors may exclude payments
such as those described in paragraph 2 of the Instructions to
Paragraph (b) of Item 404 of Regulation S-K, as promulgated by the
Securities and Exchange Commission as of the effective date hereof.
(ii) The board of directors shall be entitled to rely upon the
completeness and accuracy of directors' responses to written
questionnaires circulated for the purpose of enabling the board of
directors to make the determinations of independence required by the
provisions of By-Law 2.12.
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SECURITIES ACT AND EXCHANGE ACT
PARAGRAPH 2 OF INSTRUCTIONS TO
PARAGRAPH (b) OF ITEM 404 OF REGULATION S-K
AS IN EFFECT ON JANUARY 7, 1991
(REFERRED TO IN PARAGRAPH (i) OF
GUIDELINES FOR APPLICATION OF BY-LAW 2.12 OF
GENERAL MOTORS CORPORATION)
2. In calculating payments for property and services the following may be
excluded:
A. Payments where the rates or charges involved in the transaction are
determined by competitive bids, or the transaction involves the
rendering of services as a common contract carrier, or public
utility, at rates or charges fixed in conformity with law or
governmental authority;
B. Payments that arise solely from the ownership of securities of the
registrant and no extra or special benefit not shared on a pro rata
basis by all holders of the class of securities is received; or
C. Payments made or received by subsidiaries other than significant
subsidiaries as defined in Rule 1-02(v) of Regulation S-X, provided
that all such subsidiaries making or receiving payments, when
considered in the aggregate as a single subsidiary, would not
constitute a significant subsidiary as defined in Rule 1-02(v).*
- ---------------------------
* The General Motors Legal Staff notes that Rule 1-02(v) of Regulation S-
X provides, generally, that a significant subsidiary of General
Motors Corporation would be one which, together with its
subsidiaries, meets any of the following conditions:
(1) General Motors' and its other subsidiaries' investments in and
advances to the subsidiary exceed ten percent (10%) of the total
assets of General Motors and its consolidated subsidiaries.
(2) General Motors' and its other subsidiaries' proportionate share
of the total assets (after intercompany eliminations) of the
subsidiary exceeds ten percent (10%) of the total assets of General
Motors and its consolidated subsidiaries.
(3) General Motors' and its other subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principle of the
subsidiary exceeds ten percent (10%) of such income of General Motors
and its consolidated subsidiaries.
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DEFINITION OF CERTAIN TERMS
USED IN BY-LAW 6.12
OF
GENERAL MOTORS CORPORATION
Certain Definitions.
For the purposes of Section 6.12 of the By-Laws of General Motors Corporation,
the board of directors has adopted the following definitions, effective
March 5, 1990:
(i) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on January 1, 1990.
(ii) "Beneficial Owner" and "Beneficial Ownership" shall have the
meanings ascribed to such terms in Rule 13d-3 and Rule 13d-5 of the
General Rules and Regulations under the Exchange Act, as in effect on
January 1, 1990.
(iii) "GM Equity Security" shall mean any security described in
Section 3(a) (11) of the Exchange Act, as in effect on January 1,
1990, which is issued by GM and traded on a national securities
exchange or the NASDAQ National Market System.
(iv) "Interested Person" shall mean any person (other than the
Corporation or any Subsidiary) that is the direct or indirect
Beneficial Owner of more than three percent (3%) of the aggregate
voting power of the Voting Shares, and any affiliate or associate of
any such person. For the purpose of determining whether a Person is
an Interested Person, the outstanding Voting Shares shall include
unissued shares of voting stock of the corporation of which the
Interested Person is the Beneficial Owner, but shall not include any
other shares of voting stock of the corporation which may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise, to
any Person who is not the Interested Person.
(v) "Market Price" of shares of a class of GM Equity Security on any
day shall mean the highest sale price (regular way) of shares of such
class of GM Equity Security on such day, or, if that day is not a
trading day, on the trading day immediately preceding such day, on
the largest principal national securities exchange on which such
class of stock is then listed or admitted to trading, or if not
listed or admitted to trading on any national securities exchange,
then the highest reported sale price for such shares in the
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over-the-counter market as reported on the NASDAQ National Market
System, or if such sale prices shall not be reported thereon, the
highest bid price so reported, or, if such price shall not be
reported thereon, as the same shall be reported by the National
Quotation Bureau Incorporated; in the case of any GM Equity Security
which is the Preferred Stock or Preference Stock of the corporation
(of any series), the Market Price thereof shall be the Market Price,
as hereinabove defined, of the Voting Shares which the holder of such
Preferred Stock or Preference Stock may then acquire by reason of the
redemption, exchange, conversion or exercise of other rights as may
be provided for in the terms of such securities.
(vi) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person
pursuant to Section 13(d)(3) of the Exchange Act, as in effect on
January 1, 1990.
(vii) "Subsidiary" shall mean any company of which the corporation
owns, directly or indirectly, (A) a majority of the outstanding
shares of equity securities, or (B) shares having a majority of the
voting power represented by all of the outstanding voting stock of
such company. For the purpose of determining whether a company is a
Subsidiary, the outstanding voting stock and shares of equity
securities thereof shall include unissued shares of which the
corporation is the Beneficial Owner but, except for the purpose of
determining whether a company is a Subsidiary for purposes of the
definition of Interested Person as used in By-Law Section 6.12,
shall not include any other shares which may be issuable pursuant to
any agreement, arrangement or understanding, or upon the exercise of
conversion rights, warrants or options, or otherwise, to any Person
who is not the corporation.
(viii) "Voting Shares" shall mean the outstanding shares of capital
stock of the corporation entitled to vote generally in the election
of directors.
vi
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CERTIFICATE
The undersigned hereby certifies that the foregoing is a true and complete
copy of the By-Laws of General Motors Corporation including all amendments, as
the same are in force at the date hereof.
In Witness Whereof, I have hereunto subscribed my name and affixed the seal of
said Corporation, this ---------- day of-----------------l9--.
---------------------------------------
Secretary
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