UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 13)
GENERAL MOTORS CORPORATION
(Name of Issuer)
Class H Common Stock, par value $0.10 per share
(Title of Class of Securities)
370442 50 1
(CUSIP Number)
Craig A. Alexander, Esq.
Deputy General Counsel and Assistant Secretary
Howard Hughes Medical Institute
4000 Jones Bridge Road, Chevy Chase, MD 20815
Tel. No. (301) 215-8841
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 15, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a
statement on Schedule 13G to report the acquisition which
is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the
following box: [ ]
Check the following box if a fee is being paid
with this statement: [ ]
SCHEDULE 13D
CUSIP No. 370442 50 1
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.
Howard Hughes Medical Institute
I.R.S. Identification No. 59-0735717
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ( )
(b) ( )
3. SEC USE ONLY
4. SOURCE OF FUNDS
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
( )
6. CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7. SOLE VOTING POWER
SHARES 17,503,800
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 17,503,800
WITH 10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
17,503,800
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES ( )
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.8%
14. TYPE OF REPORTING PERSON
CO
Item 1. SECURITY AND ISSUER
Unchanged.
Item 2. IDENTITY AND BACKGROUND
Unchanged.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Unchanged.
Item 4. PURPOSE OF TRANSACTION
Unchanged, except as follows (capitalized terms
used in this Amendment No. 13 to Schedule 13D
and not defined herein have the meaning
assigned to them in the Schedule 13D and
amendments thereto previously filed by HHMI
with respect to its holdings of Class H Stock,
in the Class H Stock Agreement, as amended, in
the 1992 Agreement or in the Class H Stock Sale
Agreement (attached as Exhibit A hereto):
As previously reported, HHMI, consistent with
its goal of prudent diversification of its
investment portfolio, intends to reduce its
holdings of Class H Stock. HHMI's holdings of
Class H Stock constitute its single largest
investment, representing approximately 8.2% of
the value of its investment portfolio as of
December 31, 1994. In furtherance of HHMI's
diversification goal, and in light of the
approaching expiration on March 1, 1995, of
restrictions on the sale or exchange of 15
million of the 17,503,800 shares of its Class H
Stock under the Class H Stock Agreement, HHMI,
on February 15, 1995, entered into an agreement
with GM ("Class H Stock Sale Agreement"), which
provides, among other things, for a registered
public offering, with the assistance of GM, of
shares of Class H Stock owned by HHMI (the
"Offering"). HHMI will determine the number of
shares to be offered in the Offering but does
not currently intend to offer more than 15
million of its shares. HHMI has agreed to
refrain from selling Class H Stock for 90 days
following the Offering. HHMI anticipates that,
following the Offering, it would initially hold
2-3 million shares of Class H Stock as part of
its core investment portfolio and would make
decisions with respect to the retention or
disposition of such shares in the same manner
as it deals with other securities in its
portfolio. HHMI has no current plan or intent
to sell any shares of Class H Stock that would
remain after the Offering. Immediately
following the Offering, Class H Stock would
continue to constitute one of HHMI's largest
equity positions.
As more fully described in Item 6, below, the
Class H Stock Sale Agreement also provides for,
among other things, termination of the Class H
Stock Agreement (except with regard to the put
and call rights with respect to Covered
Shares), a limitation on sale (except pursuant
to the Offering) of shares of Class H Stock
during certain periods, and the right of HHMI
to require GM to purchase up to 15 million
shares of Class H Stock under certain conditions.
Since the filing of Amendment No. 12 to
Schedule 13D, HHMI has disposed of 890,200 Core
Shares and now holds 2,503,800 Core Shares and
15 million Covered Shares.
Item 5. INTEREST IN SECURITIES OF THE ISSUER
(a) HHMI owns beneficially 17,503,800 shares
of Class H Stock, or approximately 18.8%
of the 93,082,758 shares of Class H Stock
reported to be outstanding on the cover
page of GM's most recent quarterly report
for the quarter ended September 30, 1994.
To the best of HHMI's knowledge, none of
the other persons named or referred to in
the response to Item 2 hereof beneficially
owns any shares of Class H Stock.
(b) Unchanged.
(c) Within the last 60 days, no transactions
in shares of Class H Stock were effected
by HHMI or, to the best of HHMI's
knowledge, by any of the persons named or
referred to in response to Item 2 hereof,
except the following open market sales on
the New York Stock Exchange of Core Shares
by HHMI:
i) On January 26, 1995, HHMI sold
200,000 shares of Class H Stock,
at a price of $35.7500;
ii) On January 25, 1995, HHMI sold
150,000 per shares of Class H
Stock at a price of $35.7500 per
share;
iii) On January 24, 1995, HHMI sold
109,000 shares of Class H Stock,
at a price of $35.6250 per share;
iv) On January 23, 1995, HHMI sold
100,000 shares of Class H Stock,
at a price of $36.0000 per share;
v) On January 13, 1995, HHMI sold
331,200 shares of Class H Stock,
at a price of $35.000 per share;
vi) On January 11, 1995, HHMI sold
1,100 shares of Class H Stock, at
a price of $34.625 per share;
vii) On January 10, 1995, HHMI sold
163,200 shares of Class H Stock,
at a price of $34.7032 per share;
viii) On January 9, 1995, HHMI sold
164,700 shares of Class H Stock,
at a price of $34.5112 per share;
ix) On January 9, 1995, HHMI sold
54,000 shares of Class H Stock at
a price of $34.519 per share;
x) On January 6, 1995, HHMI sold
53,600 shares of Class H Stock,
at a price of $34.558;
xi) On January 5, 1995, HHMI sold
84,600 shares of Class H Stock,
at a price of $34.665 per share;
xii) On January 5, 1995, HHMI sold
44,000 shares of Class H Stock,
at a price of $34.75 per share;
xiii) On January 4, 1995, HHMI sold
37,000 shares of Class H Stock,
at a price of $34.966;
xiv) On January 3, 1995, HHMI sold
83,800 shares of Class H Stock,
at a price of $34.925;
xv) On December 30, 1994, HHMI sold
60,200 shares of Class H Stock,
at a price of $35.0631 per share;
xvi) On December 29, 1994, HHMI sold
62,500 shares of Class H Stock,
at a price of $35.0040 per share;
xvii) On December 28, 1994, HHMI sold
25,000 shares of Class H Stock,
at a price of $35.625;
xviii) On December 23, 1994, HHMI sold
108,200 shares of Class H Stock,
at a price of $36.00 per share;
and
xix) On December 22, 1994, HHMI sold
10,000 shares of Class H Stock,
at a price of $35.75 per share;
and
xx) On December 19, 1994, HHMI sold
300,000 shares of Class H Stock,
at a price of $32.50 per share.
(d) Unchanged.
(e) Unchanged.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Unchanged, except as follows (capitalized terms
used in this Amendment No. 13 to Schedule 13D
and not defined herein have the meaning
assigned to them in the Schedule 13D and
amendments thereto previously filed by HHMI
with respect to its holdings of Class H Stock,
in the Class H Stock Agreement, as amended, in
the 1992 Agreement or in the Class H Stock Sale
Agreement):
Pursuant to the Class H Stock Sale Agreement,
GM has agreed as soon as practicable to file
and cause to become effective a registration
statement with respect to the number of shares
of Class H Stock owned by HHMI designated by
HHMI and to assist in the offering of such
shares. If the proceeds received by HHMI from
the Offering of the Class H Stock (net of any
underwriting discounts or commissions and any
expenses incurred in connection with the
Offering) exceed the amount obtained by
multiplying the number of shares sold by HHMI
in the Offering (including any shares sold
pursuant to an over-allotment option) and
$37.50, then HHMI shall pay such excess (plus
interest from the day following the closing of
the Offering until the date of payment) to GM.
HHMI has agreed not to offer or sell, or
solicit offers to purchase, any shares of Class
H Stock (or securities convertible into or
exchangeable for such shares) during the period
from the date of the Class H Stock Sale
Agreement until the Pricing Date, except if a
registration statement has not been filed by
March 27, 1995 this restriction will not apply
until the registration statement is filed.
HHMI has also agreed to enter into an agreement
with the underwriters for the Offering
restricting the sale of such securities for a
period of 90 days after the Pricing Date.
The Class H Stock Sale Agreement gives HHMI the
right (if the Class H Stock Agreement Put Right
(as defined below) has expired unexercised on
March 1, 1995) to require GM to purchase from
HHMI a number of shares of Class H Common
Stock, as determined by HHMI, not to exceed 15
million minus the sum of the number of shares
of Class H Stock actually sold in the Offering
(other than any over-allotment shares) and the
number of shares of Class H Stock held by HHMI
that are subject to any underwriter's over-
allotment options (the "Put Right"). If HHMI
gives the underwriters for the Offering an
over-allotment option, HHMI would also have, if
the Offering is consummated, a put right with
respect to shares not purchased by the
underwriters pursuant to the over-allotment
option.
In general, HHMI may exercise the Put Right on
the earlier of (i) the first business day after
the Pricing Date, or (ii) under certain
conditions, June 30, 1995 (or, in certain
specified circumstances, at HHMI's option,
September 30, 1995) (the "Put Date").
The purchase price per share of the shares of
Class H Stock subject to the Put Right is
$30.00, except that if the average market price
of Class H Stock over the 10 consecutive
business days preceding the Put Date (the "Put
Share Market Value") is less than $10.00, then
such price per share of Class H Stock will be
the sum of such Put Share Market Value and
$20.00.
The Class H Stock Sale Agreement provides for
the termination of all rights and obligations
of the parties under the Class H Stock
Agreement, except for the right of GM to
purchase any Series IV Call Shares and the
right of HHMI (the "Class H Stock Agreement Put
Right") to require GM to purchase any 1995 Put
Shares. The call right expires if not
exercised on or before February 28, 1995 and
the put right expires if not exercised on March
1, 1995.
The Class H Stock Sale Agreement will terminate
on the Put Date, except as otherwise provided
therein.
Reference is made to the Class H Stock Sale
Agreement filed as Exhibit A hereto, which sets
forth all of the rights and obligations of the
parties thereto, including with respect to
indemnification and payment of expenses in
certain circumstances. The foregoing
description is qualified in its entirety by the
terms of the Class H Stock Sale Agreement.
Item 7. MATERIAL TO BE FILED AS EXHIBITS
Class H Stock Sale Agreement, dated February
15, 1995 (Exhibit A)
S I G N A T U R E
After reasonable inquiry and to the best
of my knowledge and belief, I certify that the
information set forth in this statement is true, complete
and correct.
Dated: February 17, 1995
HOWARD HUGHES MEDICAL INSTITUTE
/s/ Craig A. Alexander
Craig A. Alexander, Esq.
Deputy General Counsel
and Assistant Secretary
EXHIBIT A CONFORMED COPY
CLASS H STOCK
SALE AGREEMENT
BY AND BETWEEN
HOWARD HUGHES MEDICAL INSTITUTE
AND
GENERAL MOTORS CORPORATION
CLASS H STOCK SALE AGREEMENT
THIS AGREEMENT is entered into on February 15, 1995, by
and between Howard Hughes Medical Institute, a Delaware
corporation (the "Institute"), and General Motors Corporation, a
Delaware corporation ("General Motors").
WHEREAS, the Institute is the owner of 17,503,800
shares of the Class H Common Stock, par value $0.10 per share, of
General Motors (the "Class H Common Stock");
WHEREAS, the Institute and General Motors are parties
to the Class H Stock Agreement dated as of February 27, 1989 (as
amended by Amendment to Class H Stock Agreement dated as of
October 15, 1992, the "1989 Class H Agreement"); and
WHEREAS, the Institute and General Motors desire to
make certain arrangements with respect to a proposed offering and
sale of that number of shares of Class H Common Stock which the
Institute determines it wishes to sell.
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements hereinafter contained, the Institute and
General Motors agree as follows:
1. The Distribution.
(a) The proposed offering and sale of shares of
Class H Common Stock by the Institute to which this Agreement
relates (the "Distribution") shall be a customary firm commitment
underwriting, which shall be registered under the Securities Act
of 1933, as amended (the "Act"), for that number of shares of
Class H Common Stock which the Institute determines it wishes to
sell. The Institute will select the investment banker or
investment bankers that will manage the Distribution; provided
that the investment banker or investment bankers selected by the
Institute shall be reasonably acceptable to General Motors.
(b) The Institute may determine not to proceed with
the Distribution at any time for any reason; provided that if the
Institute so determines it shall immediately abandon and
terminate all activities in connection with the Distribution and
immediately notify General Motors of such determination.
(c) The parties acknowledge that the provisions of
this agreement are intended to reflect the mutual interest of the
Institute and General Motors in having any shares of Class H
Common Stock that the Institute desires to sell offered and sold
in an orderly manner which does not materially adversely affect
the market price of the Class H Common Stock and, to this end,
the parties agree to consult with each other with respect to the
Institute's distribution plans and the views of General Motors
with respect to the types of distribution which, in General
Motors' opinion, would materially adversely affect the market
price of the Class H Common Stock.
2. Distribution Procedures.
(a) In connection with the Distribution, General
Motors agrees:
(i) as soon as practicable to prepare (in
conjunction with the Institute) and file with the
Securities and Exchange Commission (the "Commission") a
Registration Statement on Form S-3 (the "Registration
Statement");
(ii) to use its best efforts, subject to receipt of
necessary information from the Institute, to cause the
Registration Statement to become effective as soon as
practicable after the filing thereof; provided that a
reasonable time before filing a Registration Statement or
prospectus or any amendments or supplements thereto, General
Motors shall furnish copies of all such documents proposed
to be filed to the Institute and to one counsel for the
Institute;
(iii) to prepare and file with the Commission such
amendments and supplements to the Registration Statement and
the prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective for a
period of sixty days (as extended by any period during which
(A) offers and sales are suspended pending receipt of a
supplemented or amended prospectus following the occurrence
of an event of the kind described in Section 2(a)(vi), or
(B) the Distribution is postponed or suspended pursuant to
the provisions of Section 2(f) or otherwise suspended or
delayed for any reason (other than the exercise by the
Institute of its reasonable business judgment or market
conditions)) or such shorter period which shall terminate
when all shares of Class H Common Stock covered by the
Registration Statement (other than any shares subject to any
underwriter's over-allotment option to the extent that such
option has expired unexercised) have been sold, but in no
event shorter than any period required to comply with the
provisions of the Act with respect to the disposition of
shares of Class H Common Stock covered thereby in accordance
with the method of disposition set forth in the Registration
Statement;
(iv) to furnish to the Institute (and to each
underwriter, if any) such number of copies of prospectuses
and preliminary prospectuses included in the Registration
Statement and such other documents as the Institute may
reasonably request, in order to facilitate the Distribution;
provided, however, that the obligation of General Motors to
deliver such copies to the Institute shall be subject to the
receipt by General Motors of reasonable assurances from the
Institute that the Institute shall comply with the
applicable provisions of the Act and of such other
securities or blue sky laws as may be applicable in
connection with any use thereof;
(v) to file documents (if any) required of General
Motors for normal blue sky clearance in states reasonably
specified in writing by the Institute; provided that General
Motors shall not be required to (a) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (b) subject
itself to taxation in any such jurisdiction where it would
not otherwise be subject to taxation or (c) consent to
general service of process in any such jurisdiction where it
would otherwise not be subject thereto;
(vi) to notify the Institute, at any time when a
prospectus relating to the Registration Statement is
required to be delivered under the Act, of the occurrence of
an event relating to General Motors which requires the
preparation of a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of shares
of Class H Common Stock, such prospectus shall not contain
an untrue statement of a material fact or an omission to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and
promptly make available to the Institute any such supplement
or amendment;
(vii) to make available members of the management of
GM Hughes Electronics Corporation and, if appropriate, of
General Motors, in each case selected by General Motors, for
reasonable assistance in the selling effort relating to the
shares of Class H Common Stock covered by the Registration
Statement;
(viii) to enter into customary agreements (including an
underwriting agreement in customary form) and take such
other actions as are reasonably required in order to
expedite or facilitate the disposition of the shares of
Class H Common Stock in the Distribution; and
(ix) to use its best efforts to obtain a comfort
letter or letters from General Motors' independent certified
public accountants and to provide opinions from General
Motors (or General Motors' outside counsel), in each case,
in customary form and covering such matters of the type
customarily covered as the managing underwriter for the
Distribution reasonably requests.
(b) In the event General Motors has notified the
Institute that (i) the Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make
the statements therein not misleading, then the Institute shall
not deliver the related prospectus to any purchaser until a
supplement or amendment thereto has been prepared as set forth in
Section 2(a)(vi) or until General Motors advises the Institute in
writing that the use thereof may be resumed. General Motors may
require the Institute to furnish to General Motors such
information regarding the distribution of shares of Class H
Common Stock and such other information as may be required in
connection with the Distribution. The Institute shall promptly
take any and all actions reasonably requested by General Motors
to enable General Motors to comply with its obligations under
this Section 2.
(c) The Institute agrees that it shall proceed in
good faith, subject to the exercise of reasonable business
judgment, market conditions and the provisions of this Agreement
(including Section 1(b) hereof) to commence and complete the
Distribution as promptly as practicable after the date hereof.
The Institute shall keep General Motors reasonably informed as to
the status of the Distribution and shall notify General Motors
promptly upon completion of the Distribution. The Institute
acknowledges and agrees that General Motors will participate and
assist, and the Institute will afford General Motors
opportunities to participate and assist, in the offering process
and the selling effort related to the Distribution. Without
limiting the generality of the foregoing, General Motors, the
Institute and the underwriters for the Distribution shall
cooperate and work together in planning the selling efforts,
including the presentations to be made to potential purchasers
and the determination of which potential investors to contact
with respect to the Distribution.
(d) The Institute shall comply with the applicable
provisions of the Act and of such other securities or blue sky
laws as may be applicable in connection with the Distribution.
Without limiting the generality of the foregoing, the Institute
agrees that it shall not use any offering document, offering
circular or other offering materials with respect to the offer or
sale of shares of Class H Common Stock in the Distribution other
than the prospectuses provided by General Motors hereunder and
any documents incorporated by reference therein.
(e) The Institute shall notify General Motors
promptly at any time when a prospectus related to the
Registration Statement is required to be delivered under the Act
of the occurrence of any event relating to the Institute which
requires the preparation of an appropriate supplement or
amendment to such prospectus so that, as thereafter delivered to
the purchasers of shares of Class H Common Stock, such prospectus
shall not contain an untrue statement of a material fact or an
omission to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading relating
to the Institute, and General Motors shall promptly make
available to the Institute any such supplement or amended
prospectus. The Institute also agrees that, upon the occurrence
of any such event, the Institute shall forthwith discontinue
disposition of shares of Class H Common Stock until the
Institute's receipt of the copies of the supplement or amended
prospectus contemplated by this paragraph.
(f) General Motors shall be entitled to postpone or
suspend the Distribution (including to postpone the filing or
effectiveness of the Registration Statement or the use of any
related prospectus) if General Motors determines, in its
reasonable judgment, that the Distribution or such filing,
effectiveness or use would (i) materially interfere with any
proposal or plan by General Motors or any of its affiliates to
engage in any material acquisition, merger, consolidation, tender
offer, securities offering or other material transaction (other
than an equity offering for cash proceeds) or (ii) require
General Motors to make public disclosure of information the
disclosure of which would have a material adverse effect on Delco
Electronics Corporation, Hughes Aircraft Company, GM Hughes
Electronics Corporation or General Motors. If General Motors
makes such a determination, it shall promptly give the Institute
a certificate signed by an officer of General Motors setting
forth such determination. General Motors agrees that it shall
terminate any such postponement or suspension as promptly as
reasonably practicable and shall promptly notify the Institute of
such termination. In making any such determination to initiate
or terminate a postponement or suspension, General Motors shall
not be required to consult with or obtain the consent of the
Institute, and any such determination shall be General Motors
responsibility alone, and the Institute shall not be responsible
or have any liability therefor.
3. Confidentiality.
(a) Subject to the compliance with legal
requirements in the reasonable business judgment of each party,
each of the parties shall treat all non-public information
relating to the Distribution received from the other party
(including the existence of and any reasons for any postponement
or suspension thereof under Section 2(f)) with the strictest
confidence and shall not disclose or disseminate such
information; provided that, if the Institute has determined not
to proceed with the Distribution or if offers and sales by the
Institute are not then prohibited by Section 6(b), the foregoing
shall not prevent the Institute from disclosing such information
as it reasonably determines it is required to disclose in
connection with any offer, sale or other disposition by the
Institute of General Motors' securities; and provided, further,
that the Institute shall not disclose any non-public information
(including any information disclosed to the Institute pursuant to
Section 3(b)) prior to three Business Days after the Institute
gives notice to General Motors that it intends to disclose such
information. Except as required by law in the Registration
Statement and any related prospectus (and subject to the
provisions of Section 2(f)), nothing herein shall be construed to
require General Motors or any of its subsidiaries or affiliates
at any time to make any public disclosure of information or to
make any disclosure of non-public information to the Institute.
(b) If the Institute is advised by its legal counsel
to obtain information from General Motors regarding matters which
(i) federal securities laws require to be included in the
Registration Statement or (ii) relates to the preservation by the
Institute of legal defenses associated with the Institute's
federal securities laws responsibilities with respect to the
Distribution, it shall do so through outside legal counsel and
other outside advisors who have agreed to be bound by the
provisions of Section 3 selected by the Institute and in the
manner advised by legal counsel. Such legal counsel and advisors
may provide any such information obtained by them to the
Institute if they determine that doing so is reasonably
necessary, in the view of legal counsel, in order for the
Institute to satisfy any disclosure requirements applicable to it
or preserve any defenses of the Institute under the federal
securities laws in connection with the Distribution. Legal
counsel to the Institute shall advise General Motors in advance
if and to the extent any such information is to be provided to
the Institute. The Institute shall limit the disclosure of any
information which it has obtained pursuant to this Section 3(b)
in the manner contemplated by Section 3(a).
(c) Notwithstanding the provisions of this Section
3, if General Motors shall disclose any non-public information to
the Institute in connection with its exercise of the Put Right
(as defined below) or the Over-Allotment Put (as defined below),
the Institute shall treat such information with the strictest
confidence and shall not disseminate such information until 21
days following the date on which it received such information.
4. Payment of Distribution Expenses. All
Distribution Expenses (as defined below) incident to General
Motors' performance of its obligations with respect to the
Distribution under Section 2 hereof shall be paid by the
Institute promptly upon demand by General Motors for payment
regardless of whether the Distribution has been commenced or
completed; provided that the Institute shall not be obligated to
pay such Distribution Expenses in the event that the Institute
determines not to proceed with the Distribution as a result of
the exercise by General Motors of its rights to postpone the
Distribution under Section 2(f) hereof. The term "Distribution
Expenses" means expenses reasonably incurred in order to effect
the Distribution which would not have been incurred but for the
Distribution, including, without limitation, all registration and
filing fees, fees and expenses of compliance with federal and
state securities or blue sky laws (including reasonable fees and
disbursements of counsel), reasonable printing expenses,
messenger and delivery expenses, reasonable fees and
disbursements of counsel for General Motors and its independent
certified public accountants, reasonable fees and expenses of any
special experts or others retained by General Motors (as being
necessary or advisable) in connection with the Distribution,
reasonable travel expenses and other out-of-pocket costs incurred
by General Motors in carrying out its agreements hereunder, any
underwriting discounts, commissions or fees attributable to the
sale of securities, reasonable fees and disbursements of counsel
to the Institute and other expenses incurred in connection with
the Distribution.
5. Indemnification.
(a) General Motors agrees to indemnify and hold
harmless the Institute, its trustees, directors, officers,
employees and agents and each person who would be an underwriter,
its trustees, officers, directors, employees and agents, and each
person, if any, who controls within the meaning of either Section
15 of the Act or Section 20 of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), the Institute or any such
underwriter, from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any related prospectus, or in any
amendment or supplement thereto, or arising out of or based upon
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of, or are based upon,
any such untrue statement or omission or allegation thereof based
upon information furnished in writing to General Motors by or on
behalf of the Institute expressly for use therein; provided that
with respect to any untrue statement or omission or alleged
untrue statement or omission made in the Registration Statement
or any such prospectus, or in any amendment or supplement
thereto, the indemnity agreement provided for in this paragraph
shall not apply to the extent that any such loss, claim, damage,
liability or expense results from the fact that a copy of the
Registration Statement or such related prospectus, or in any
amendment or supplement thereto, was not sent or given to the
person asserting any such losses, claims, damages, liabilities or
expenses at or prior to the written confirmation of the sale of
the shares of Class H Common Stock concerned to such person.
(b) The Institute agrees, and each underwriter
selected shall agree, to indemnify and hold harmless General
Motors and its subsidiaries and their respective directors,
officers, employees and agents and each person, if any, who
controls General Motors or any of its subsidiaries within the
meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from
General Motors, but only with respect to information furnished in
writing by or on behalf of the Institute or such underwriter, as
the case may be, expressly for use in the Registration Statement
or related prospectus or any amendment or supplement thereto.
Each underwriter selected shall agree to indemnify the Institute,
its trustees, directors, officers, employees, agents and each
person, if any, who controls the Institute within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent that each underwriter indemnifies General Motors.
The Institute agrees to indemnify and hold harmless the
underwriters of the shares of Class H Common Stock, their
officers and directors and each person who controls such
underwriters on substantially the same basis as that of the
indemnification of General Motors provided in this Section 5.
(c) If any action or proceeding (including any
governmental investigation) shall be brought or asserted against
any person indemnified hereunder in respect of which indemnity
may be sought from an indemnifying party, the indemnifying party
shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the indemnified person, and
shall assume the payment of all expenses. The indemnified person
shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees
and expenses of such separate counsel shall be at the expense of
the indemnified person unless (i) the indemnifying party has
agreed in writing to pay such fees and expenses, (ii) the
indemnifying party shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably
satisfactory to the indemnified person in such action or
proceeding or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both an
indemnified person and the indemnifying party, and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection
with any proceeding or related actions or proceedings in the same
jurisdiction be liable for the fees and expenses of more than one
separate firm of attorneys (together with appropriate local
counsel) at any time for the indemnified persons, which firm
shall be designated in writing by whichever of General Motors or
the Institute is an indemnified person. No indemnifying party
shall be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the indemnifying
party agrees to indemnify and hold harmless the indemnified
person from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 5 is unavailable in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
such indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) as between General Motors and the
Institute on the one hand and the underwriters on the other, in
such proportion as is appropriate to reflect the relative
benefits received by General Motors and the Institute on the one
hand and the underwriters on the other from the offering of the
shares of Class H Common Stock, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only such relative benefits but also the relative
fault of General Motors and the Institute on the one hand and of
the underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations and (ii) as between General Motors, on the one
hand, and the Institute on the other, in such proportion as is
appropriate to reflect the relative fault of General Motors and
of the Institute in connection with such statements or omissions,
as well as any other relevant equitable considerations. The
relative benefits received by General Motors and the Institute on
the one hand and the underwriters on the other shall be deemed to
be in the same proportion as the total proceeds from the
Distribution (net of underwriting discounts and commissions but
before deducting expenses) received by General Motors and the
Institute bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set
forth in the table on the cover page of the prospectus. The
relative fault of General Motors and the Institute on the one
hand and of the underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by General Motors and the Institute or by the underwriters and
the parties' relative interest, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The relative fault of General Motors on the one hand and of the
Institute on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by such party, and
the parties, relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) General Motors and the Institute agree that it
would not be just and equitable if contribution pursuant to this
section were determined by pro rata allocation (even if the
underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities, or
judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 5, the Institute shall not be required to contribute any
amount in excess of the amount by which the total price at which
the shares of Class H Common Stock sold by it exceeds the amount
of any damages which the Institute has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f) For purposes of this Section 5, any reference to
an underwriter shall include any person that would be deemed to
be an underwriter within the meaning of the Act if the Institute
were deemed to be an issuer within the meaning of the Act.
6. Hold Back Agreements.
(a) General Motors agrees (and will directly agree
with the underwriters for the Distribution) that, unless the
underwriter or underwriters administering the Distribution
otherwise agree, and except as specifically contemplated by this
Agreement in connection with the Distribution, it shall not offer
or sell, or solicit offers to purchase, or file any registration
statement under the Act (other than any registration statement
filed pursuant to Rule 415 under the Act) with respect to, any
shares of Class H Common Stock (or securities convertible into or
exchangeable for such shares) during the period from the date
hereof until 90 days after the Pricing Date; provided that
General Motors shall not be precluded from (i) the issuance of
shares of Class H Common Stock upon the conversion, exercise or
exchange, by the holder thereof, of options, warrants or other
securities convertible into or exercisable or exchangeable for
the Class H Common Stock pursuant to the terms of such options,
warrants or other securities, (ii) transfers pursuant to the
terms of any other agreement to issue shares of Class H Common
Stock (or any securities convertible into or exchangeable or
exercisable for the Class H Common Stock) in effect on the date
of the commencement of the Distribution, including any such
agreement in connection with any previously disclosed
acquisition, merger, consolidation or other business combination,
(iii) transfers in connection with dividend reinvestment plans or
employee benefit plans of General Motors (or a subsidiary of
General Motors) and (iv) making any offer or sale of shares of
Class H Common Stock (or securities convertible into or
exchangeable for such shares) as consideration in any merger or
consolidation or the acquisition by General Motors or any
subsidiary of General Motors of the capital stock or a
substantial portion of the assets of any other entity.
(b) The Institute agrees that, except as
specifically contemplated by this Agreement in connection with
the Distribution, it shall not offer or sell, or solicit offers
to purchase, any shares of Class H Common Stock (or securities
convertible into or exchangeable for such shares (whether Core
Shares (as defined in the 1989 Class H Agreement) or otherwise)
during the period from the date hereof until the Pricing Date (as
defined below); provided that, if the Registration Statement has
not been filed by the date which is 40 days after the date
hereof, this sentence shall not apply during the period from such
40th day until the date on which the Registration Statement is
filed. The Institute will directly agree with the underwriters
for the Distribution that, unless the underwriters administering
the Distribution otherwise agree, and except as specifically
contemplated by this Agreement in connection with the
Distribution, it shall not offer or sell, or solicit offers to
purchase, any shares of Class H Common Stock (or securities
convertible into or exchangeable for such shares) (whether Core
Shares or otherwise) during the period from the Pricing Date
until 90 days thereafter. Nothing in this Section 6(b) shall
prohibit the Institute from selling shares of Class H Common
Stock to General Motors upon the exercise of any put rights by
the Institute or any call rights by General Motors.
(c) The provisions of this Section 6 shall terminate
and have no further force or effect upon the giving of a notice
by the Institute to General Motors that the Institute has
determined not to proceed with the Distribution as described in
Section 1(b).
7. Termination of 1989 Class H Agreement.
Effective as of the date hereof and without further action by
either party, except for (i) General Motors' right to purchase
the Institute's Series IV Call Shares (as defined in the 1989
Class H Agreement) (or any portion thereof) pursuant to the call
right set forth in Section 6 of the 1989 Class H Agreement and
all rights and obligations of the parties set forth in the 1989
Class H Agreement related to effecting such call right and (ii)
the Institute's right to require General Motors to purchase the
1995 Put Shares (as defined in the 1989 Class H Agreement) (or
any portion thereof) pursuant to the put right set forth in
Section 5 of the 1989 Class H Agreement and all rights and
obligations of the parties set forth in the 1989 Class H
Agreement related to effecting such put right, General Motors
and the Institute hereby terminate the 1989 Class H Agreement and
mutually waive all rights and release all obligations thereunder
and such agreement shall be of no further force or effect.
General Motors agrees to cause the restrictive legend required by
the 1989 Class H Agreement on certificates of Class H Common
Stock held by the Institute to be removed promptly from each such
certificate following execution of this Agreement and to issue a
certificate or certificates for shares of Class H Common Stock
without such legend in the names and denominations specified in
writing by the Institute.
8. Mandatory Purchase of Shares.
(a) So long as the Institute shall not have
exercised its right to require General Motors to purchase any of
the 1995 Put Shares pursuant to Section 5 of the 1989 Class H
Agreement, on the Put Date (as defined below), the Institute
shall have the right to require General Motors, upon the terms
and subject to the conditions set forth in this Section 8, to
purchase from the Institute (the "Put Right") a number of shares
of Class H Common Stock (the "Put Shares") (as determined by the
Institute) not to exceed (i) 15,000,000 minus (ii) if the
Institute shall have entered into the Underwriting Agreement (as
defined below), the sum of (x) the number of shares (other than
any shares being offered by the Institute that are subject to any
underwriter's over-allotment options, which are separately
addressed in Section 8(h) below) actually sold pursuant to such
Agreement and (y) the number of shares being offered by the
Institute that are subject to any underwriters' over-allotment
options.
For all purposes of this Agreement:
(v) the "Underwriting Agreement" shall mean any
underwriting agreement entered into in connection with the
Distribution and the "Pricing Agreement" shall mean any
related pricing agreement with underwriters;
(w) a "Distribution Closing" shall mean a closing
(including any delayed closing with respect to an
underwriters' over-allotment option) under the Underwriting
Agreement;
(x) the "Pricing Date" shall mean the date on which
the Institute enters into the Underwriting Agreement or, if
such agreement does not specify the price at which shares
will be sold, the Pricing Agreement;
(y) a "Business Day" shall mean any day on which The
New York Stock Exchange, Inc. (the "NYSE") is open for
trading, except in each year the day following Thanksgiving
Day and each day during the period from and including
December 24 through January 1; and
(z) the "Put Date" shall mean the earlier of (A)
the first Business Day after the Pricing Date, provided
that, if the related Underwriting Agreement is terminated
without any Distribution Closing having occurred, the Put
Date shall not be deemed to have occurred pursuant to this
clause (A) and any Put Notice (as defined below) delivered
prior to such termination shall be null and void, except
that, if the Pricing Date is on or before June 30, 1995 and
the related Underwriting Agreement is terminated on June 30,
1995 or thereafter without any Distribution Closing having
occurred, the Put Date shall be the first Business Day after
the date such Underwriting Agreement so terminates, and (B)
June 30, 1995 (or such later date (the "Clause (A) Extended
Put Date") as is determined to be the Put Date pursuant to
the exception set forth in the proviso to clause (A) above),
provided that, if for any reason (other than the exercise by
the Institute of its reasonable business judgment or market
conditions) there has not been a Distribution Closing by
June 30, 1995, so long as, prior to June 30, 1995, the
Institute has not abandoned the Distribution as described in
Section 1(b) hereof, the Put Date as determined pursuant to
this clause (B) shall be, at the option of the Institute,
June 30, 1995 (or, if later, the Clause (A) Extended Put
Date) or September 30, 1995.
(b) The Institute may exercise the Put Right by
delivering to General Motors on or before the close of business
(5:00 p.m., New York City time) on the Put Date a written notice
(the "Put Notice") setting forth the Institute's intention to
exercise the Put Right and the number of Put Shares to be
purchased at the Put Closing; provided, however, that the Put
Notice may simply specify that the Institute is exercising the
Put Right with respect to the maximum number of shares as to
which it is permitted to exercise the Put Right in the case of a
Put Notice delivered on the first Business Day after the Pricing
Date. The Put Right shall expire at the close of business on the
Put Date (as specified in Section 8(a)(z)) if it has not been
exercised prior to that time. The closing (the "Put Closing") of
the sale and purchase of Put Shares pursuant to this Section 8
shall take place at the New York offices of General Motors on a
date and at a time selected by General Motors which shall be not
later than ten Business Days after the Put Date and which, in the
case of the Put Date occurring on the first Business Day after
the Pricing Date, shall be on or after the first Distribution
Closing. General Motors shall promptly notify the Institute of
the date of the Put Closing. If the Put Closing is prohibited by
the terms of any injunction or court order, the Institute and
General Motors will use their best efforts to have such
prohibition lifted and to consummate the sale and purchase of the
related Put Shares as soon as practicable thereafter.
(c) The purchase price for each Put Share purchased
by General Motors pursuant to the exercise of the Put Right (the
"Put Purchase Price") shall be $30.00; provided, that if the Put
Share Market Value (as defined below) is less than $10.00, then
the Put Purchase Price shall be the sum of (i) the Put Share
Market Value and (ii) $20.00.
(d) At the Put Closing, the aggregate Put Purchase
Price for all Put Shares being purchased on such date, plus
interest on such aggregate amount calculated on a daily basis at
a rate equal to the Applicable Treasury Rate (as defined below)
for such day, which interest shall accrue from the Business Day
following the Put Date to and including the date of the Put
Closing (including any period during which the Put Closing is
prohibited by the terms of an injunction or court order), shall
be payable to the Institute by wire transfer of immediately
available funds to such account as the Institute shall have
previously designated in writing against the receipt of
certificates representing such Put Shares. After the Put
Closing, the Institute shall have no rights in respect of the Put
Shares sold at the Put Closing, except the right to receive (at
the time paid to other stockholders of record) payments of
dividends on such Put Shares payable after the Put Closing to
holders of record of shares of Class H Common Stock on a date
prior to the date of the Put Closing. In the event that for any
reason the Put Closing occurs after the closing date selected by
General Motors pursuant to Section 8(b), any dividend received by
the Institute on each Put Share being purchased which is payable
to holders of record of shares of Class H Common Stock on a date
subsequent to such date selected by General Motors shall be for
the account of General Motors and the Institute shall pay over
the amount of such dividend to General Motors at the Put Closing
or, if the dividend payment date is after than the Put Closing,
promptly upon the Institute's receipt of such dividend.
(e) At the Put Closing, the Institute shall deliver
to General Motors certificates representing the Put Shares being
purchased, duly endorsed, or accompanied by stock power(s) duly
executed in blank. The Institute shall also deliver to General
Motors a representation and warranty, duly executed on behalf of
the Institute, that at the Put Closing the Institute has valid
and marketable title to the Put Shares being purchased, free and
clear of all claims, liens, charges, encumbrances and security
interests and that upon delivery of and payment for such Put
Shares at the Put Closing General Motors will acquire good and
marketable title to such Put Shares, free and clear of any
claims, liens, charges, encumbrances or security interests.
(f) The "Put Share Market Value" for purposes of
this Section 8 shall be the average of the daily high and low
sales prices for the Class H Common Stock for the 10 consecutive
Business Days ending on and including the Business Day
immediately prior to the Put Date. The high and low sales prices
for each day shall be the high and low sales prices as reported
in The Wall Street Journal or, if not so reported, as reported in
another newspaper of national circulation selected by General
Motors or, in case no such sale takes place on such day, the
average of the closing bid and asked prices regular way on the
NYSE, or if the Class H Common Stock is not then listed or
admitted to trading on the NYSE, on the largest principal
national securities exchange (as determined by total volume of
trades during the preceding six months) on which such stock is
then listed or admitted to trading, or if not listed or admitted
to trading on any principal national securities exchange, then
the average of the last reported sales prices for such shares in
the over-the-counter market, as reported on the National
Association of Securities Dealers Automated Quotation System, or,
if such sales prices shall not be reported thereon, the average
of the closing bid and asked prices as reported thereon, or if
such bid and asked prices shall not be reported thereon, as the
same shall be reported by the National Quotation Bureau
Incorporated, or, in all other cases, an appraised fair market
value of such stock furnished by any NYSE member selected from
time to time by General Motors and satisfactory to the Institute
for such purpose.
(g) The "Applicable Treasury Rate" for purposes of
this Agreement shall mean, with respect to any day, the rate
converted to a bond equivalent basis listed for such day (or if
no rate is listed for such day, the rate listed for the last
previous day for which a rate is listed) on the appropriate
Federal Reserve Statistical Release H.15 "Selected Interest
Rates" as the Secondary Market rate for 3-Month Treasury Bills.
If such release ceases to be published or otherwise is not
available for any period, the Applicable Treasury Rate shall be
determined in a manner agreed upon by General Motors and the
Institute as being an appropriate means of determining the rate
that would have been listed on such release as the Secondary
Market rate for 3-Month Treasury Bills.
(h) So long as the Institute shall not have exercised
its right to require General Motors to purchase any of the 1995
Put Shares pursuant to Section 5 of the 1989 Class H Agreement,
if the Underwriting Agreement includes an underwriters' over-
allotment option, on the Over-Allotment Put Date (as defined
below), the Institute shall have an additional right (the "Over-
Allotment Put") to require General Motors to purchase from the
Institute, upon the terms and subject to the conditions of this
Agreement, a number of shares of Class H Common Stock (as
determined by the Institute) not to exceed (i) the number of
shares covered by such over-allotment option minus (ii) the
number of shares sold by the Institute to the underwriters
pursuant to the exercise of such option (including those sold on
or prior to the Put Closing), provided that in no event shall the
sum of the number of shares covered by the Put Right and the
number of shares covered by the Over-Allotment Put exceed
15,000,000. The terms and conditions of the Over-Allotment Put
shall in all respects be as nearly identical as practicable to
the terms and conditions set forth in this Section 8 with respect
to the Put Right, except that the Over-Allotment Put shall be
exercisable by delivery of notice to General Motors only on or
before the close of business (5:00 p.m. New York City time) on
the Over-Allotment Put Date. For all purposes of this Agreement,
the "Over-Allotment Put Date" shall mean the earlier of (x) the
first Business Day after the date on which the underwriters'
over-allotment option expires, provided that such over-allotment
expiration date shall in no event be more than 30 days after the
Pricing Date, and (y) the date on which all shares subject to the
option have been sold pursuant to the exercise thereof.
9. Cash Settlement. If the Net Proceeds (as
defined below) to the Institute from the Distribution exceed the
amount that is the product of (x) the number of shares of Class H
Common Stock sold by the Institute in the Distribution (including
any shares sold pursuant to the exercise of an underwriters'
over-allotment option) and (y) $37.50, then the Institute shall
pay such excess (plus interest on such excess calculated on a
daily basis at a rate equal to the Applicable Treasury Rate for
the day of payment, which interest shall accrue from the Business
Day following the last Distribution Closing to and including the
date on which such excess is paid to General Motors) to General
Motors in immediately available funds. The Institute shall pay
the amount of such excess (to the extent theretofore not paid) no
later than ten days following the last Distribution Closing.
"Net Proceeds" shall mean the proceeds received by the Institute
in the Distribution less any Distribution Expenses (including
underwriting discounts and commissions) (as the amount of
Distribution Expenses other than underwriting discounts and
commissions shall be determined by mutual agreement between
General Motors and the Institute).
10. Miscellaneous.
(a) Business Days. If this Agreement requires that
an action be taken on any day which is not a Business Day, such
action shall be taken on the next succeeding Business Day. Any
action which may or is required to be taken on any Business Day
shall be valid only if it is taken not later than 5:00 p.m. New
York City time on such Business Day. When a provision of this
Agreement provides that a notice may or shall be given or other
action taken within a specified number of Business Days following
a certain event, the calculation of such number of Business Days
shall begin with the Business Day next following the day on which
such event occurs. For example, if notice is required to be
given within five Business Days following the receipt of another
notice, such five Business Day period shall commence with the
first Business day following the day such other notice was
received.
(b) Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Agreement may not be
amended, modified or supplemented except by a writing signed by
General Motors and the Institute.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be in writing and shall
be made by hand delivery, by registered or certified first-class
mail, return receipt requested, or by facsimile transmission:
(i) if to the Institute:
Howard Hughes Medical Institute
4000 Jones Bridge Road
Chevy Chase, Maryland 20815-6789
Attention: Vice President and General Counsel
Telephone: 301-215-8843
Facsimile: 301-215-8848
with a copy to:
Vice President and Chief Investment Officer
Howard Hughes Medical Institute
4000 Jones Bridge Road
Chevy Chase, Maryland 20815-6789
Telephone: 301-215-8686
Facsimile: 301-215-8691
(ii) if to General Motors:
General Motors Corporation
767 Fifth Avenue
New York, New York 10153
Attention: Treasurer
Telephone: 212-418-3500
Facsimile: 212-418-3695
with a copy to:
General Motors Corporation
3031 West Grand Boulevard
Detroit, Michigan 48202
Attention: Warren G. Andersen
Telephone: 313-974-1528
Facsimile: 313-974-0685
All notices and communications shall be deemed to have
been duly given and received: when delivered by hand, if hand
delivered; the third Business Day after being deposited in the
mail, registered or certified, return receipt requested, first
class postage prepaid, or earlier Business Day actually received,
if mailed; upon oral confirmation of receipt, if by facsimile
transmission. Each party agrees promptly to confirm receipt of
all notices. The validity or effectiveness of any notice or
other communication provided for or permitted under this
Agreement shall not be affected by the failure to deliver the
copies referred to above.
(d) Third Party Rights and Obligations. Nothing in
this Agreement shall be construed to give any person or entity
other than the Institute and General Motors and other than
subsidiaries of General Motors and the respective directors,
trustees, officers, employees, agents and controlling persons of
General Motors and its subsidiaries and the Institute indemnified
hereunder, any legal or equitable right, remedy or claim under
this Agreement, and this Agreement shall be for the sole and
exclusive benefit of such persons.
(e) Descriptive Headings. The headings of the
sections of this Agreement are inserted for convenience only and
shall not constitute a part hereof.
(f) Cooperation. Each party hereto shall take such
further action, and execute such additional documents, as may be
reasonably requested by the other party hereto in order to
facilitate the Distribution as described herein.
(g) Binding Effect; Assignment. This Agreement
shall be binding upon and shall inure to the benefit of and be
enforceable by each of the parties and their successors and
permitted assigns. None of the rights or obligations under this
Agreement shall be assigned by the Institute without the consent
of General Motors or by General Motors without the consent of the
Institute.
(h) Counterparts. This Agreement may be executed in
any number of counterparts, and shall be deemed to have been duly
executed and delivered by all parties when each party has
executed a counterpart hereof and delivered an original or
facsimile copy thereof to the other party. Each such counterpart
hereof shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(i) Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement shall
be governed by and construed in accordance with the internal law,
and not the law of conflicts, of the State of Delaware.
(j) Remedies. The Institute and General Motors
agree that in addition to being entitled to exercise all rights
granted by law, including recovery of damages, each party shall
be entitled to specific performance of its rights under this
Agreement. Each party agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agrees to
waive the defense in any action for specific performance that a
remedy at law would be adequate.
(k) Effect of Automatic Exchange of Class H Common
Stock for $1 2/3 Par Value Common Stock. If, pursuant to
subparagraph (6) of paragraph (c) of Division I of Article FOURTH
of the Certificate of Incorporation of General Motors (the
"Exchange Provision"), there is a recapitalization of General
Motors pursuant to which all the outstanding shares of Class H
Common Stock are exchanged for shares of General Motors Common
Stock $1 2/3 par value per share at the applicable Exchange Rate
as more particularly described in said Certificate of
Incorporation, the Put Right and the Over-Allotment Put provided
for herein shall be adjusted such that each of the Put Shares
shall be converted into an Exchange Adjusted Put Share, expressed
as that number (calculated to the nearest five decimal places)
which is the number of shares of $1 2/3 Par Value Common Stock
which each share of Class H Common Stock is exchangeable into
pursuant to the Exchange Provision and each such Exchange
Adjusted Put Share shall be putable to General Motors at the
time, Put Purchase Price and manner provided for in Section 8 of
this Agreement with respect to the Put Share which was converted
into such Exchange Adjusted Put Share.
(l) Adjustments. If General Motors shall in any
manner subdivide (by stock split, stock dividend or otherwise) or
combine (by reverse stock split or otherwise) the number of
shares of Class H Common Stock (or, after an exchange pursuant to
the Exchange Provision, shares of General Motors Common Stock, $1
2/3 par value per share), General Motors shall appropriately
adjust all share amounts and dollar amounts related thereto set
forth in this Agreement. Issuance of shares of any class of
General Motors common stock as a dividend on or as part of a
reclassification or recapitalization of any other class of
General Motors common stock shall not require an adjustment
pursuant to this Section 10(l). All such adjustments shall be
made by General Motors in good faith. No later than ten days
after any such adjustment General Motors will provide to the
Institute a written notice setting forth such adjustment and the
basis therefor.
(m) Termination. This Agreement and all rights,
restrictions and obligations of General Motors and the Institute
pursuant hereto shall terminate and shall have no further force
and effect as of 5:00 p.m., New York City time, on the Put Date
(as specified in Section 8(a)(z)), except that (a) the obligation
of the Institute to pay Distribution Expenses upon demand by
General Motors under Section 4 and the provisions of Sections
2(d), 3, 5, 7 and 9 shall survive, (b) if any Distribution
Closing has occurred, the provisions of Section 6 shall survive,
(c) so long as any prospectus relating to the Registration
Statement is required to be delivered, the provisions of Sections
2(a)(vi), 2(b) and 2(e) shall survive, (d) if the Put Right has
been exercised, any rights and obligations with respect to the
purchase and sale of Put Shares to be purchased upon such
exercise shall survive until the Put Closing, (e) if the
Institute has entered into an underwriters' over-allotment
option, the Over-Allotment Put shall survive until the Over-
Allotment Put terminates pursuant to Section 8(h), the
Underwriting Agreement containing such option is terminated, or
the closing with respect to the exercise of the Over-Allotment
Put, whichever occurs first, and (f) any rights and obligations
hereunder arising prior to or on the Put Date (as specified in
Section 8(a)(z)) and not discharged prior to or on such date
shall continue until fully discharged.
(n) Limitation on Termination and Performance. No
action or failure to act by either party hereto shall constitute
a breach or failure of performance sufficient to permit the other
party to terminate this Agreement or fail to continue to be
obligated to perform hereunder unless such action or failure to
act is intentional, constitutes a clear and demonstrable failure
to satisfy an obligation imposed by this Agreement and imposes a
substantial disadvantage on the other party not remediable by
monetary damages, which shall continue as a remedy for any such
breach or failure of performance hereunder.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
HOWARD HUGHES MEDICAL INSTITUTE
By: /s/Carter F. Wolfe
Name: Carter F. Wolfe
Title: Vice President and Chief Investment
Officer
GENERAL MOTORS CORPORATION
By: /s/Heidi Kunz
Name: Heidi Kunz
Title: Vice President and Treasurer
