UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 14)
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)
April 27, 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
WITH 17,503,800
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)
18.4%
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. 14 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):
On March 24, 1995, GM filed a registration
statement on Form S-3 under the Securities Act,
File No. 33-58235, and on March 29, 1995 and
April 25, 1995 filed Amendments No. 1 and No. 2
thereto, respectively, with respect to the
public offering (the "Offering") by HHMI of
15,000,000 shares of Class H Stock owned by
HHMI. The Offering is being made pursuant to
the Class H Stock Sale Agreement. As more
fully described in Item 6 below, on April 27,
1995, Goldman Sachs & Co., Salomon Brothers
Inc, Cowen & Company and Morgan Stanley & Co.
Incorporated (together, the "Underwriters"), GM
and HHMI entered into an Underwriting Agreement
(the "Underwriting Agreement") and HHMI and the
Underwriters have entered into a pricing
agreement (the "Pricing Agreement"), which
together provide for the sale of an aggregate
of 15,000,000 shares of Class H Stock to the
Underwriters at a purchase price of $37.45 per
share. The closing of the purchase and sale
contemplated by the Underwriting Agreement is
subject to conditions customary to transactions
of this nature and is expected to occur on or
about May 4, 1995. Based upon the purchase
price of $37.45 per share, HHMI expects to
realize $561,750,000 in net proceeds. Pursuant
to the Class H Stock Sale Agreement, HHMI has
agreed to reimburse GM for GM's out-of-pocket
expenses incurred in the connection with the
Offering. A copy of the Underwriting Agreement
and the Pricing Agreement are attached as
Exhibit A hereto. As previously reported, HHMI
has agreed to refrain from offering to sell,
selling or otherwise disposing of Class H Stock
or any securities convertible into or
exchangeable for Class H Stock for 90 days
following the Offering. Following the
Offering, HHMI will initially hold 2,503,800
shares of Class H Stock as part of its core
investment portfolio and will 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 will continue to constitute one
of HHMI's largest equity positions.
Since the filing of Amendment No. 13 to
Schedule 13D, HHMI has not disposed of any
shares of Class H Stock.
Item 5. INTEREST IN SECURITIES OF THE ISSUER
(a) HHMI owns beneficially 17,503,800 shares
of Class H Stock, or approximately 18.4%
of the 95,093,416 shares of Class H Stock
reported to be outstanding as of March 31,
1995 in Amendment No. 2 to the
registration statement filed on Form S-3
by GM in connection with the Offering. 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) Except as described in Item 6 below,
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.
(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. 14 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 Underwriting Agreement, the
several Underwriters have agreed, subject to
the terms and conditions set forth therein, to
purchase the number of shares of Class H Stock
set forth opposite their respective names as
set forth in the Schedule A of the Underwriting
Agreement.
Under the terms and conditions of the
Underwriting Agreement, the Underwriters are
committed to take and pay for all of the shares
offered, if any are taken. The purchase price
paid by the Underwriters to HHMI for the Class
H Shares will be $37.45 per share.
HHMI has agreed that during the period
beginning from the date of the prospectus and
continuing to and including the date 90 days
after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of
any shares of Class H Stock (other than
pursuant to employee benefit plans and under
certain other circumstances) or any securities
which are convertible or exchangeable into
Class H Stock, without the written consent of
Goldman, Sachs & Co. and Salomon Brothers Inc,
except for the shares offered in connection
with the Offering.
HHMI has agreed to indemnify Goldman, Sachs &
Co. and Salomon Brothers Inc, against certain
liabilities, including liabilities under the
Securities Act of 1933.
Reference is made to the Underwriting Agreement
and Pricing Agreement filed as Exhibit A
hereto, which together set forth all of the
rights and obligations of the parties thereto,
including with respect to indemnification. The
foregoing description is qualified in its
entirety by the terms of the Underwriting
Agreement and the Pricing Agreement.
Item 7. MATERIAL TO BE FILED AS EXHIBITS
Underwriting Agreement dated April 27, 1995 and
Pricing Agreement, dated April 27, 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: May 1, 1995
HOWARD HUGHES MEDICAL INSTITUTE
\s\ Craig A. Alexander
Craig A. Alexander, Esq.
Deputy General Counsel
and Assistant Secretary
CONFORMED COPY
15,000,000 Shares
GENERAL MOTORS CORPORATION
(a Delaware corporation)
Class H Common Stock
($0.10 Par Value Per Share)
UNDERWRITING AGREEMENT
April 27, 1995
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
COWEN & COMPANY
MORGAN STANLEY & CO. INCORPORATED
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
General Motors Corporation, a Delaware corporation
(the "Company"), and the Howard Hughes Medical Institute, a
Delaware corporation (the "Selling Stockholder"), confirm
their respective agreements with you (collectively, the
"Underwriters") with respect to the sale by the Selling
Stockholder of 15,000,000 shares of Class H Common Stock,
$0.10 par value, of the Company ("Class H Common Stock"), and
the purchase by the Underwriters, acting severally and not
jointly, of the respective number of shares of Class H Common
Stock set forth in Schedule A hereto, except as may otherwise
be provided in the Pricing Agreement, as hereinafter defined.
The 15,000,000 shares of Class H Common Stock are hereinafter
called the "Securities."
Prior to the purchase and public offering of the
Securities by the several Underwriters, the Selling
Stockholder (after consultation with the Company) and the
Underwriters shall enter into an agreement substantially in
the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Selling
Stockholder and the Underwriters and shall specify such
applicable information as is indicated in Exhibit A hereto.
The offering of the Securities will be governed by this
Agreement, as supplemented by the Pricing Agreement. From and
after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement. The date of the Pricing Agreement is
referred to as the "Representation Date."
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 33-58235) and related preliminary
prospectus for the registration of the Securities under the
Securities Act of 1933 (the "1933 Act"), has filed such
amendments thereto, if any, and such amended preliminary
prospectus as may have been required to the date hereof, and
will file such additional amendments thereto and such amended
prospectus as may hereinafter be required. Such registration
statement (as amended, if applicable), the prospectus
constituting part of the Registration Statement which relates
to the Securities (including the information, if any, deemed
to be part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933
Act Regulations") and all documents, if any, incorporated by
reference thereafter), as from time to time amended or
supplemented pursuant to the 1933 Act, are hereinafter
referred to as the "Registration Statement," and the
"Prospectus", except that, if the final prospectus furnished
to the Underwriters by the Company for use in connection with
the offering of the Securities differs from the Prospectus on
file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is
required to be or is filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to the final prospectus furnished to the
Underwriters for such use.
I.
On the basis of the representations and warranties
herein contained and subject to the terms and conditions
herein set forth, the Selling Stockholder agrees to sell to
each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholder, at the price per share set forth
in the Pricing Agreement, that proportion of the number of
Securities which the number of Securities set forth in
Schedule A opposite the name of such Underwriter bears to the
total number of Securities (except as otherwise provided in
the Pricing Agreement), subject to adjustments as the
Underwriters in their discretion shall make to eliminate any
sales or purchases of fractional securities.
The purchase price per share to be paid by the
several Underwriters for the Securities shall be an amount
equal to the initial public offering price, less an amount per
share to be determined by agreement between the Underwriters
and the Selling Stockholder (after consultation with the
Company). The initial public offering price and the purchase
price, when so determined, shall be set forth in the Pricing
Agreement.
II.
The Company and the Selling Stockholder understand
that the Underwriters propose to make a public offering of the
Securities as soon as they deem advisable after the
Registration Statement becomes effective and the Pricing
Agreement has been executed and delivered.
III.
Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices
of Davis Polk & Wardwell, New York, New York, or at such other
place as shall be agreed upon by the Company, the Underwriters
and the Selling Stockholder, at 10:00 a.m. on the fifth
business day (unless postponed in accordance with Article VIII
herein) following execution of the Pricing Agreement, or such
other time not later than ten business days after such date as
shall be agreed upon by the Company, the Underwriters and the
Selling Stockholder (such time and date of payment and
delivery being herein called "Closing Time"). The Selling
Stockholder shall not be obligated to deliver any of the
Securities to be delivered at the Closing Time except upon
payment for all the Securities to be purchased at such time as
provided herein.
Payment shall be made to the Selling Stockholder by
certified or official bank checks drawn in New York Clearing
House funds payable to the order of the Selling Stockholder
against delivery to the Underwriters of certificates for the
Securities to be purchased by them. Certificates for the
Securities shall be in such denominations and registered in
such names as the Underwriters may request in writing at least
two business days before Closing Time. The certificates for
the Securities will be made available for examination and
packaging by the Underwriters not later than 10:00 a.m. on the
last business day prior to Closing Time.
IV.
The obligations of the Company and the several
obligations of the Selling Stockholder and the Underwriters
hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date
hereof.
The several obligations of the Underwriters
hereunder are subject to the following further conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission, and there shall have been
no material adverse change or development involving a
prospective material adverse change in the condition of
the Company and its subsidiaries, taken as a whole, or
Hughes Electronics Corporation (hereinafter called "HEC")
and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement; and you shall have
received, at Closing Time, a certificate of an officer of
the Company (acting on behalf of the Company and without
personal liability), dated the Closing Time, to the
foregoing effect. Such certificate will also provide
that the representations and warranties of the Company
contained herein are true and correct as of the Closing
Time. The officer may rely upon the best of his
knowledge in making such certificate. You shall also
have received, at Closing Time, a certificate of an
officer of the Selling Stockholder (acting on behalf of
the Selling Stockholder and without personal liability),
dated the Closing Time, providing that the
representations and warranties of the Selling Stockholder
contained herein are true and correct as of the Closing
Time; such officer may rely upon the best of his
knowledge in making such certificate.
(b) You shall have received the favorable opinion,
dated as of the Closing Time, of Warren G. Andersen,
Attorney, Legal Staff of the Company, to the effect that:
(i) The Company is a corporation validly
existing and in good standing under the laws of the
State of Delaware, is duly qualified to transact
business and is in good standing in each
jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification and has all requisite corporate power
and authority to own, lease and operate its
properties and to carry on its business as now being
conducted, except where the failure to be so
qualified or in good standing would not have a
materially adverse effect on the financial position
of the Company and its subsidiaries taken as a
whole,
(ii) each of HEC, Hughes Aircraft Company and
Delco Electronics Corporation is a corporation
validly existing and in good standing under the laws
of its state of incorporation, is duly qualified to
transact business and is in good standing in each
jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification and has all requisite corporate power
and authority to own, lease and operate its
properties and to carry on its business as now being
conducted, except where the failure to be so
qualified or in good standing would not have a
materially adverse effect on the financial position
of HEC and its subsidiaries taken as a whole,
(iii) the authorized, issued and outstanding
capital stock of the Company conforms as to legal
matters to the description thereof contained in the
Prospectus,
(iv) the Securities sold by the Selling
Stockholder hereunder have been duly authorized and
validly issued and are fully paid and non-
assessable,
(v) this Agreement has been duly authorized,
executed and delivered by the Company,
(vi) the execution, delivery and performance of
this Agreement will not contravene any provision of
applicable law or the Certificate of Incorporation
or By-laws of the Company or any agreement or other
instrument known to such counsel and binding upon
the Company, and no consent, approval or
authorization of any governmental body or agency is
required for the performance of this Agreement other
than the registration of the Securities under the
1933 Act and compliance with the securities or Blue
Sky Laws of various jurisdictions (as to which no
opinion is expressed),
(vii) the statements in the Prospectus under
"Description of General Motors Capital Stock" and
"Underwriting" insofar as such statements constitute
a summary of the legal matters or documents referred
to therein, fairly summarize the information called
for with respect to such legal matters and
documents, and
(viii) after due inquiry, such counsel does not
know of any legal or governmental proceeding or
investigation pending or threatened to which the
Company or any of its subsidiaries is a party or to
which any of the properties of the Company or of HEC
is subject which is required to be described in the
Registration Statement or the Prospectus and is not
so described or of any contract or other document
which is required to be described in the
Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement
which is not described or filed as required.
(c) You shall have received the favorable opinion,
dated as of the Closing Time, of Kirkland & Ellis,
counsel for the Company, covering the matters referred to
in (iii) (as to authorized capital stock only), (iv), (v)
and (vii) above.
(d) You shall have received the favorable opinion,
dated as of the Closing Time, of Davis Polk & Wardwell,
counsel for the Underwriters, covering the matters
referred to in (iii) (as to authorized capital stock
only), (v) and (vii) above.
(e) You shall have received the favorable opinion,
dated as of the Closing Time, of Skadden, Arps, Slate,
Meagher & Flom, counsel for the Selling Stockholder, to
the effect that:
(i) the Selling Stockholder is a corporation
validly existing and in good standing under the laws
of the State of Delaware and has all requisite
corporate power and authority to consummate the
transactions contemplated hereby,
(ii) this Agreement has been duly authorized,
executed and delivered by the Selling Stockholder
and is a valid and binding obligation of the Selling
Stockholder enforceable in accordance with its
terms, except as may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting
the enforcement of creditors' rights in general and
by general principles of equity, regardless of
whether such enforceability is considered in a
proceeding in equity or at law and except as rights
to indemnity and contribution hereunder may be
limited by applicable law, and
(iii) assuming that Goldman, Sachs & Co., on
behalf of the Underwriters, acquired its interest in
the securities evidenced by the General Motors Class
H Stock certificates listed on Schedule A to such
opinion registered in each case in the name of the
Selling Stockholder and accompanied by stock powers
endorsed to Goldman, Sachs & Co. in good faith and
without notice of any adverse claims, upon delivery
of and payment for such securities by Goldman, Sachs
& Co., on behalf of the Underwriters, Goldman, Sachs
& Co., on behalf of the Underwriters, will acquire
such securities free of any adverse claim within the
meaning of the Uniform Commercial Code as adopted in
New York.
(f) Each counsel referred to in (b), (c) and (d)
above shall additionally state that, based upon the
participation of such counsel in the preparation of the
Registration Statement and Prospectus and any amendments
or supplements thereto (but not including, with respect
to counsel referred to in (c) and (d) above, documents
incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), nothing has come to
the attention of such counsel that would lead such
counsel to believe that the Registration Statement, at
the time it became effective or at the Representation
Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the Representation
Date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriters by the
Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at
the Commission at the Representation Date, in which case
at the time it is first provided to the Underwriters for
such use) or at Closing Time, included an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
such counsel need not make such statement with respect to
the financial statements and supporting schedules and
other financial information contained or incorporated by
reference into the Registration Statement and the
Prospectus.
(g) You shall have received the favorable opinion,
dated as of the Closing Time, of Anton H. Zidansek,
Assistant General Tax Counsel, Tax Staff of the Company
to the effect that the discussion set forth under the
caption "Certain Federal Tax Considerations for Non-
United States Holders" in the Prospectus accurately
reflects such counsel's views on the matters discussed
therein and is based on reasonable interpretations of
existing law.
(h) You shall have received on the date of this
Agreement a letter dated such date and also at the
Closing Time a letter dated as of the Closing Time, in
each case in form and substance satisfactory to you, from
each of Deloitte & Touche and KPMG Peat Marwick,
independent auditors, containing statements and
information of the type ordinarily included in
accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
(i) At Closing Time counsel for the Underwriters
shall have been furnished with such documents and
opinions as they may reasonably require for the purpose
of enabling them to pass upon the sale of the Securities
as contemplated herein and related proceedings, or in
order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Stockholder in
connection with the sale of the Securities as herein or
therein contemplated shall be reasonably satisfactory in
form and substance to you and your counsel.
If any condition specified in this Article shall not have been
fulfilled when and as required to be fulfilled, this Agreement
may be terminated by you by notice to the Company and the
Selling Stockholder at any time at or prior to Closing Time,
and such termination shall be without liability of any party
to any other party except as provided in Article VIII.
V.
In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as
follows:
(a) To furnish you, without charge, three copies of
the Registration Statement as filed with the Commission
(including exhibits thereto and documents incorporated
therein by reference) and, during the period mentioned in
paragraph (c), any supplements and amendments thereto as
you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall
include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), which are
deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the
Registration Statement or the Prospectus, to furnish you
a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of
the public offering of the Securities as in the opinion
of your counsel the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which
Securities may have been sold by you and to any other
dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will
comply with law.
(d) To endeavor to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay
all expenses (including reasonable fees and disbursements
of counsel) in connection therewith.
(e) To make generally available to the Company's
security holders as soon as practicable an earnings
statement covering the twelve month period ending
December 31, 1995, which shall satisfy the provisions of
Section 11(a) of the 1933 Act and the 1933 Act
Regulations.
(f) Not to offer or sell, or solicit offers to
purchase, or file any registration statement under the
1933 Act (other than any registration statement filed
pursuant to Rule 415 under the 1933 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 Representation Date until 90 days
thereafter without the prior written consent of Goldman,
Sachs & Co. and Salomon Brothers Inc; provided that the
Company 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 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
original filing of the Registration Statement with the
Commission, 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 the Company (or a subsidiary
of the Company) 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 in a transaction that would not constitute a
"public offering" of such shares (or such other
securities) within the meaning of the 1933 Act, provided
that the recipient of such shares (or such other
securities) agrees in writing not to offer or sell such
shares for a period ending on the date that is 90 days
after the Representation Date without the prior written
consent of Goldman, Sachs & Co. and Salomon Brothers Inc.
In further consideration of the agreements of the
Underwriters herein contained, the Selling Stockholder
covenants not to offer or sell, or solicit offers to purchase,
any shares of Class H Common Stock (or securities convertible
into or exchangeable for such shares) during the period from
the Representation Date until 90 days thereafter without the
prior written consent of Goldman, Sachs & Co. and Salomon
Brothers Inc; provided, that nothing contained in this Article
V shall prevent the sale of the Securities hereunder or the
sale of Class H Common Stock to the Company upon the exercise
of any put rights by the Selling Stockholder.
VI.
The Company represents and warrants to each
Underwriter that (i) each document filed or to be filed
pursuant to the 1934 Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all
material respects with the 1934 Act and the rules and
regulations of the Commission thereunder, (ii) each
preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933
Act and the 1933 Act Regulations, (iii) the Registration
Statement and Prospectus complied on the date the Registration
Statement became effective, and will comply on the
Representation Date, in all material respects with the 1933
Act and the 1933 Act Regulations and, as of such dates did not
and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (iv) none of the Company or any material
subsidiary does business with the government of Cuba or with
any person or affiliate located in Cuba and the Company and
each material subsidiary has complied to the extent necessary
with all provisions of Florida H.B. 1771; except that these
representations and warranties do not apply to statements or
omissions in the Registration Statement or the Prospectus or
any preliminary Prospectus based upon information furnished to
the Company in writing by the Selling Stockholder or by any
Underwriter expressly for use therein.
The Selling Stockholder represents and warrants to
the Company and each Underwriter that (i) this Agreement has
been and the Pricing Agreement, when executed and delivered by
the Selling Stockholder, will have been duly authorized,
executed and delivered by the Selling Stockholder, (ii) the
Selling Stockholder has good and marketable title to the
Securities to be sold by the Selling Stockholder hereunder and
full power, right and authority to sell such Securities, and
upon the delivery of and payment for the Securities as herein
contemplated, each of the Underwriters will receive good and
marketable title to the Securities purchased by it from the
Selling Stockholder, free and clear of any mortgage, pledge,
lien, security interest, encumbrance, claim or equity, (iii)
any written information furnished to the Company by the
Selling Stockholder for use in the Registration Statement, the
Prospectus, any amendments or supplements thereto, or any
preliminary Prospectus does not contain any untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein not misleading and
(iv) the Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Class H Common Stock.
The Company agrees to indemnify and hold harmless
each Underwriter, the directors, partners and each person, if
any, who controls any Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act from
and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus, or caused by 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 or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or
omission based upon information furnished to the Company in
writing by any Underwriter through you or the Selling
Stockholder expressly for use therein, and agrees to reimburse
each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such losses, claims, damages or
liabilities promptly after receipt of adequate documentation
relating thereto; provided that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person,
and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage
or liability. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
The Selling Stockholder agrees to indemnify and hold
harmless the Underwriters, their directors, partners and each
person, if any, who controls the Underwriters within the
meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference
to information furnished to the Company in writing by the
Selling Stockholder expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. This indemnity
agreement will be in addition to any liability which the
Selling Stockholder may otherwise have.
Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors,
each of its officers who signs the Registration Statement and
each person, if any, who controls the Company within the
meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act, HEC and the Selling Stockholder, its trustees,
directors and each person, if any, who controls the Selling
Stockholder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as
the foregoing indemnity from the Company to each Underwriter,
but only with reference to information furnished to the
Company in writing by such Underwriter expressly for use in
the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus. This
indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to any of
the three preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called
the indemnifying party) in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have agreed in writing
to pay such fees and expenses, (ii) the indemnifying party
shall have failed to assume the defense of such proceeding and
employ counsel reasonably satisfactory to the indemnified
person in such proceeding or (iii) the named parties to any
such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified 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
proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified
parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing jointly
by Goldman, Sachs & Co. and Salomon Brothers Inc. In the case
of any such separate firm for the Selling Stockholder and such
control persons of the Selling Stockholder, such firm shall be
designated in writing by the Selling Stockholder. In the case
of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall
be designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in the third,
fourth or fifth paragraph of this Article VI is unavailable to
hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholder
on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholder on
the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company
and the Selling Stockholder bear to the total underwriting
discounts and commissions received by the Underwriters, in
each case as set forth on the cover of the Prospectus. The
relative fault of the Company, the Selling Stockholder and the
Underwriters 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 the Company,
by the Selling Stockholder or by the Underwriters and the
parties' relative interest, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Stockholder and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Article VI 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 and liabilities
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 Article VI, no Underwriter shall be
required to contribute any amount in excess of the
underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Article VI are several in
proportion to the respective number of Securities purchased by
each Underwriter, and not joint.
The indemnity and contribution agreements contained
in this Article VI and the representations and warranties of
the Company and the Selling Stockholder contained in this
Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its officers and directors or any other person
controlling the Company and (iii) acceptance of any payment
for any of the Securities.
VII.
This Agreement shall be subject to termination in
your absolute discretion, by notice given to the Company and
the Selling Stockholder, if prior to the Closing Time (i)
trading in securities generally or trading in the Class H
Common Stock on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall
have occurred any material outbreak or escalation of
hostilities or other calamity the effect of which on the
financial markets is such as to make it, in your reasonable
judgment, impracticable to market the Securities.
VIII.
This Agreement shall become effective when
notification of the effectiveness of the Registration
Statement has been released by the Commission and you and the
Selling Stockholder (after consultation with the Company)
shall have agreed upon the public offering price. If the
public offering price and the purchase price of the Securities
shall not have been agreed upon, the Pricing Agreement shall
not have been executed and delivered by all parties thereto,
prior to 5:00 p.m., New York Time, on the seventh full
business day after the Registration Statement shall have
become effective, this Agreement shall thereupon terminate
without liability on the part of the Underwriters, the Company
or the Selling Stockholder, except as set forth herein.
If as of the Closing Time, any one or more of the
Underwriters shall fail or refuse to purchase the Securities
which it or they have agreed to purchase hereunder on such
date, the other Underwriters shall have the right, but not the
obligation, severally in the proportions which the number of
Securities set forth opposite their names in Schedule A bear
to the aggregate number of Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If
arrangements satisfactory to you and the Selling Stockholder
(after consultation with the Company) for the purchase of such
Securities are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling
Stockholder. In any such case you or the Selling Stockholder
(after consultation with the Company) shall have the right to
postpone the Closing Time, but in no event for longer than
seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for
any reason the Company or the Selling Stockholder shall be
unable to perform its obligations under this Agreement, the
Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, shall be
reimbursed for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the
offering contemplated hereunder by either the Company or the
Selling Stockholder, whichever party is responsible for such
expenses pursuant to Section 4 of the Class H Stock Sale
Agreement between the Selling Stockholder and the Company
dated February 15, 1995.
This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon
the same instrument.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
* * * * * *
Very truly yours,
GENERAL MOTORS CORPORATION
By /s/ Heidi Kunz
Title VP and Treasurer
HOWARD HUGHES MEDICAL INSTITUTE
By /s/ Carter F. Wolfe
Title Vice President and Chief
Investment Officer
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
COWEN & COMPANY
MORGAN STANLEY & CO. INCORPORATED
By /s/ Goldman, Sachs & Co.
Goldman, Sachs & Co.
SALOMON BROTHERS INC
By /s/ Christopher R. Lawrence
Title: Managing Director
EXHIBIT A
15,000,000 Shares
GENERAL MOTORS CORPORATION
(a Delaware corporation)
Class H Common Stock
($0.10 Par Value Per Share)
PRICING AGREEMENT
April 27, 1995
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
COWEN & COMPANY
MORGAN STANLEY & CO. INCORPORATED
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Reference is made to the Underwriting Agreement,
dated April 27, 1995 (the "Underwriting Agreement"), relating
to the purchase by the several Underwriters named in Schedule
A thereto (the "Underwriters"), of the above shares of Class H
Common Stock (the "Securities") of General Motors Corporation
(the "Company").
Pursuant to Article I of the Underwriting Agreement,
the Selling Stockholder agrees with each Underwriter as
follows:
(1) The initial public offering price per share for
the Securities, determined as provided in said Article I,
shall be $38.50.
(2) The purchase price per share for the Securities
to be paid by the several Underwriters shall be $37.45, being
an amount equal to the initial public offering price set forth
above less $1.05 per share.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company and the Selling Stockholder a counterpart hereof,
whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters, the Company
and the Selling Stockholder in accordance with its terms.
* * * * * *
Very truly yours,
HOWARD HUGHES MEDICAL INSTITUTE
By /s/ Carter F. Wolfe
Title Vice President and Chief
Investment Officer
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
COWEN & COMPANY
MORGAN STANLEY & CO. INCORPORATED
By /s/ Goldman, Sachs & Co.
Goldman, Sachs & Co.
SALOMON BROTHERS INC
By /s/ Christopher R. Lawrence
Title Managing Director
SCHEDULE A
Number of
Name of Underwriter Securities
Goldman, Sachs & Co. . . . . . . . . . . . . . . 3,750,000
Salomon Brothers Inc . . . . . . . . . . . . . . 3,750,000
Cowen & Company . . . . . . . . . . . . . . . . 3,750,000
Morgan Stanley & Co. Incorporated . . . . . . . 3,750,000
Total 15,000,000
