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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
General Motors Corporation Delaware 38-0572515
(Exact Name of registrant as (State of incorporation (I.R.S. Employer
specified in its charter) or organization) Identification No.)
100 Renaissance Center, Detroit, Michigan 48243-7301
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Class H Common Stock, $0.10 par value per share, of New York Stock Exchange
General Motors Corporation
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [_]
Securities Act registration statement file number to which this form
relates: 333-37215 (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The information called for by this item is set forth under the following
captions: "New GM Class H Common Stock" in Chapter 1, "Risk Factors
Relating to GM's Dual-Class Common Stock Capital Structure" in Chapter 2,
"Comparison of GM Class H Common Stock, New GM Class H Common Stock and
Class A Common Stock" in Chapter 6, "Considerations Relating to GM's Dual-
Class Common Stock Capital Structure" in Chapter 6 and "New GM Class H
Common Stock" in Chapter 6 of the Solicitation Statement /Prospectus which
forms a part of the registrant's Registration Statement on Form S-4
(Registration No. 333-37215) as filed on October 6, and amended on October
8, October 14, October 17 and November 10, 1997 under the Securities Act of
1933, as amended (as amended and supplemented, the "Registration
Statement"), which information is incorporated herein by reference.
Item 2. EXHIBITS
1. Restated Certificate of Incorporation, as amended, filed as Exhibit
3(i) to the Current Report on Form 8-K of General Motors Corporation dated
June 7, 1996, and Amendment to Article Fourth of the Certificate of
Incorporation-- Division III-- Preference Stock, by reason of the
Certificates of Designations filed with the Secretary of State of the State
of Delaware on September 14, 1987 and the Certificate of Decrease filed
with the Secretary of State of the State of Delaware on September 29, 1987
(pertaining to the six series of Preference Stock contributed to the
General Motors pension trusts), incorporated by reference to Exhibit 19 to
the Quarterly Report on Form 10-Q of General Motors Corporation for the
quarter ended June 30, 1990 in the Form SE of General Motors Corporation
dated August 6, 1990; as further amended by the Certificate of Designations
filed with the Secretary of State of the State of Delaware on June 28,
1991(pertaining to the Series A Conversion Preference Stock), incorporated
by reference to Exhibit 4(a) to Form S-8 Registration Statement No. 33-
43744 in the Form SE of General Motors Corporation dated November 1, 1991;
as further amended by the Certificate of Designations filed with the
Secretary of State of the State of Delaware on December 9, 1991 (pertaining
to Series B 9 1/8% Preference Stock), incorporated by reference to Exhibit
4(a) to Form S-3 Registration Statement No. 33-45216 in the Form SE of
General Motors Corporation dated January 27, 1992; as further amended by
the Certificate of Designations filed with the Secretary of State of the
State of Delaware on February 14, 1992 (pertaining to the Series C
Convertible Preference Stock), incorporated by reference to Exhibit 3(a) to
the Annual Report on Form 10-K of General Motors Corporation for the year
ended December 31, 1991 in the Form SE of General Motors Corporation dated
March 20, 1992; as further amended by the Certificate of Designations filed
with the Secretary of State of the State of Delaware on July 15, 1992
(pertaining to Series D 7.92% Preference Stock), incorporated by reference
to Exhibit 3(a)(2) to the Quarterly Report on Form 10-Q of General Motors
Corporation for the quarter ended June 30, 1992 in the Form SE of General
Motors Corporation dated August 10, 1992; and as further amended by the
Certificate of Designations filed with the Secretary of State of the State
of Delaware on December 15, 1992 (pertaining to Series G 9.12% Preference
Stock), incorporated by reference to Exhibit 4(a) to Form S-3 Registration
Statement No. 33-49309 in the Form SE of General Motors Corporation dated
January 25, 1993.
2. Proposed amendment to Article Fourth of the Certificate of
Incorporation incorporated by reference to Exhibit A to Appendix A of the
Solicitation Statement/Prospectus which forms a part of the Registration
Statement.
3. By-laws of General Motors Corporation, as amended to August 4, 1997
(incorporated by reference to Exhibit 3(ii) to the Quarterly Report on Form
10-Q of General Motors Corporation for the quarter ended June 30, 1997).
4. Amended and Restated By-laws of General Motors Corporation in the form
adopted subject to the consummation of the transactions described in the
Registration Statement.
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Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
GENERAL MOTORS CORPORATION
By /s/ Thomas A. Gottschalk
-----------------------------
Name: Thomas A. Gottschalk
Its: Senior Vice President and General Counsel
Date: December 11, 1997
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EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
1 Restated Certificate of Incorporation, as amended, filed as Exhibit
3(i) to the Current Report on Form 8-K of General Motors Corporation
dated June 7, 1996, and Amendment to Article Fourth of the Certificate
of Incorporation-- Division III-- Preference Stock, by reason of the
Certificates of Designations filed with the Secretary of State of the
State of Delaware on September 14, 1987 and the Certificate of
Decrease filed with the Secretary of State of the State of Delaware on
September 29, 1987 (pertaining to the six series of Preference Stock
contributed to the General Motors pension trusts), incorporated by
reference to Exhibit 19 to the Quarterly Report on Form 10-Q of
General Motors Corporation for the quarter ended June 30, 1990 in the
Form SE of General Motors Corporation dated August 6, 1990; as further
amended by the Certificate of Designations filed with the Secretary of
State of the State of Delaware on June 28, 1991(pertaining to the
Series A Conversion Preference Stock), incorporated by reference to
Exhibit 4(a) to Form S-8 Registration Statement No. 33-43744 in the
Form SE of General Motors Corporation dated November 1, 1991; as
further amended by the Certificate of Designa tions filed with the
Secretary of State of the State of Delaware on December 9, 1991
(pertaining to Series B 9 1/8% Preference Stock), incorporated by
reference to Exhibit 4(a) to Form S-3 Registration Statement No. 33-
45216 in the Form SE of General Motors Corporation dated January 27,
1992; as further amended by the Certificate of Designations filed
with the Secretary of State of the State of Delaware on February 14,
1992 (pertaining to the Series C Convertible Preference Stock),
incorporated by reference to Exhibit 3(a) to the Annual Report on Form
10-K of General Motors Corporation for the year ended December 31,
1991 in the Form SE of General Motors Corporation dated March 20,
1992; as further amended by the Certificate of Designations filed with
the Secretary of State of the State of Delaware on July 15, 1992
(pertaining to Series D 7.92% Preference Stock), incorporated by
reference to Exhibit 3(a)(2) to the Quarterly Report on Form 10-Q of
General Motors Corporation for the quarter ended June 30, 1992 in the
Form SE of General Motors Corporation dated August 10, 1992; and as
further amended by the Certificate of Designations filed with the
Secretary of State of the State of Delaware on December 15, 1992
(pertaining to Series G 9.12% Preference Stock), incorporated by
reference to Exhibit 4(a) to Form S-3 Registration Statement No. 33-
49309 in the Form SE of General Motors Corporation dated January 25,
1993.
2 Proposed amendment to Article Fourth of the Certificate of
Incorporation incorporated by reference to Exhibit A to Appendix A of
the Solicitation Statement/Prospectus which forms a part of the
Registration Statement.
3 By-laws of General Motors Corporation, as amended to August 4, 1997
(incorporated by reference to Exhibit 3(ii) to the Quarterly Report on
Form 10-Q of General Motors Corporation for the quarter ended June 30,
1997).
4 Amended and Restated By-laws of General Motors Corporation in the form
adopted subject to the consummation of the transactions described in
the Registration Statement.
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Exhibit 4
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GENERAL MOTORS CORPORATION
__________________
BY-LAWS
[adopted subject to the consummation of the Hughes Transactions]
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GENERAL MOTORS CORPORATION
BY-LAWS
INDEX
<TABLE>
<S> <C> <C>
ARTICLE I -- MEETINGS OF STOCKHOLDERS
1.1. Annual..................................................... 1
1.2. Special.................................................... 1
1.3. Notice of Meetings......................................... 1
1.4. List of Stockholders Entitled to Vote...................... 1
1.5. Quorum..................................................... 2
1.6. Organization............................................... 2
1.7. Voting; Proxies............................................ 2
1.8. Fixing Date for Determination of Stockholders of Record.... 2
1.9. Adjournments............................................... 3
1.10. Judges..................................................... 3
ARTICLE II -- BOARD OF DIRECTORS
2.1. Responsibility and Number.................................. 3
2.2. Election; Resignation; Vacancies........................... 4
2.3. Regular Meetings........................................... 4
2.4. Special Meetings........................................... 4
2.5. Quorum; Vote Required for Action........................... 4
2.6. Organization............................................... 4
2.7. Transactions with Corporation.............................. 5
2.8. Ratification............................................... 5
2.9. Informal Action by Directors............................... 6
2.10. Telephonic Meetings Permitted.............................. 6
2.11. Notice of Stockholder Nomination and Stockholder Business.. 6
2.12. Independent Directors...................................... 7
ARTICLE III -- COMMITTEES
3.1. Committees of the Board of Directors....................... 8
3.2. Election and Vacancies..................................... 9
3.3. Procedure; Quorum.......................................... 9
3.4. Executive Committee........................................ 9
3.5. Investment Funds Committee................................. 10
3.6. Audit Committee............................................ 10
3.7. Executive Compensation Committee........................... 10
</TABLE>
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<S> <C> <C>
3.8. Public Policy Committee............................. 11
3.9. Committee on Director Affairs....................... 11
3.10. Capital Stock Committee............................. 11
ARTICLE IV -- OFFICERS
4.1. Elected Officers.................................... 12
4.2. Chief Executive Officer............................. 12
4.3. President........................................... 12
4.4. Treasurer........................................... 13
4.5. Secretary........................................... 13
4.6. Comptroller......................................... 13
4.7. General Counsel..................................... 13
4.8. General Auditor..................................... 13
4.9. Chief Tax Officer................................... 14
4.10. Subordinate Officers................................ 14
4.11. Resignation, Removal, Suspension and Vacancies...... 14
ARTICLE V -- INDEMNIFICATION
5.1. Right to Indemnification of Directors and Officers.. 15
5.2. Advancement of Expenses of Directors and Officers... 15
5.3. Claims by Officers or Directors..................... 15
5.4. Indemnification of Employees........................ 16
5.5. Advancement of Expenses of Employees................ 16
5.6. Non-Exclusivity of Rights........................... 16
5.7. Other Indemnification............................... 16
5.8. Insurance........................................... 16
5.9. Amendment or Repeal................................. 17
ARTICLE VI -- MISCELLANEOUS
6.1. Offices............................................. 17
6.2. Stock Certificates.................................. 17
6.3. Seal................................................ 17
6.4. Dividends on Preferred Stock........................ 18
6.5. Fiscal Year......................................... 18
</TABLE>
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<TABLE>
<S> <C> <C>
6.6. Annual Report................................................. 18
6.7. Notice........................................................ 18
6.8. Waiver of Notice.............................................. 18
6.9. Voting of Stocks Owned by the Corporation..................... 19
6.10. Form of Records............................................... 19
6.11. Amendment of By-Laws.......................................... 19
6.12. Anti-Greenmail................................................ 19
6.13. Gender Pronouns............................................... 20
DEFINITION OF CERTAIN TERMS USED IN AND GUIDELINES
FOR THE APPLICATION OF BY-LAW 2.12 OF GENERAL MOTORS
CORPORATION......................................................... i
SECURITIES ACT AND EXCHANGE ACT PARAGRAPH 2 OF
INSTRUCTIONS TO PARAGRAPH (b) OF ITEM 404 OF
REGULATION S-K AS IN EFFECT ON JANUARY 7, 1991
[REFERRED TO IN PARAGRAPH (i) OF GUIDELINES FOR
APPLICATION OF BY-LAW 2.12 OF GENERAL MOTORS
CORPORATION]........................................................ iv
DEFINITION OF CERTAIN TERMS USED IN BY-LAW 6.12..................... v
</TABLE>
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GENERAL MOTORS CORPORATION
BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1. Annual.
The annual meeting of stockholders for the election of directors, ratification
or rejection of the selection of auditors and the transaction of such other
business as may properly be brought before the meeting shall be held on the
first Monday in June in each year, or on such other date and such place and time
as the chairman of the board or the board of directors shall designate.
1.2. Special.
Special meetings of stockholders may be called by the board of directors or the
chairman of the board of directors at such place, date and time and for such
purpose or purposes as shall be set forth in the notice of such meeting.
1.3. Notice of Meetings.
Written notice of each meeting of stockholders shall be given by the chairman of
the board and/or the secretary in compliance with the provisions of Delaware
law.
1.4. List of Stockholders Entitled to Vote.
The secretary shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present.
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1.5. Quorum.
At each meeting of stockholders, except where otherwise provided by law or the
certificate of incorporation or these by-laws, the holders of one-third of the
voting power of the outstanding shares of stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum. In the absence of a
quorum, the stockholders so present may, by majority vote, adjourn the meeting
from time to time in the manner provided in Section 1.9 of these by-laws until a
quorum shall attend. Shares of its own stock belonging to the corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly,
by the corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
1.6. Organization.
The chairman or, if he so designates or is absent, the chief executive officer
or, in their absence, an executive vice president or vice president designated
by the board of directors, shall preside at meetings of the stockholders. The
secretary of the corporation shall act as secretary, but in his absence the
presiding officer may appoint a secretary.
1.7. Voting; Proxies.
Each stockholder shall be entitled to vote in accordance with the number of
shares and voting powers of the voting shares held of record by him. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him by proxy, but such proxy, whether revocable or
irrevocable, shall comply with the requirements of Delaware law. Voting at
meetings of stockholders, on other than the election of directors, need not be
by written ballot unless the holders of a majority of the outstanding shares of
all classes of stock entitled to vote thereon present in person or by proxy at
such meeting shall so determine. At all meetings of stockholders for the
election of directors a plurality of the voting power of the shares of stock
present in person or represented by proxy and entitled to vote shall be
sufficient. All other elections and questions shall, unless otherwise provided
by law or by the certificate of incorporation or these by-laws, be decided by
the vote of the holders of a majority of the voting power of the shares of stock
entitled to vote thereon present in person or by proxy at the meeting.
1.8. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled: (a) to
notice of or to vote at any meeting of stockholders or any adjournment thereof;
(b) to express consent to corporate action in writing without a meeting; (c) to
receive payment of any dividend or other distribution or allotment of any
rights; or (d) to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the board of
directors may fix a
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record date. The record date shall not precede the date upon which the
resolution fixing the record date is adopted by the board of directors and which
record date: (a) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall not be more than
sixty nor less than ten days before the date of such meeting; (b) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the board of
directors; and (c) in the case of any other action, shall not be more than sixty
days prior to such other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
1.9. Adjournments.
Any meeting of stockholders, annual or special, may adjourn from time to time to
reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
1.10. Judges.
All votes by ballot at any meeting of stockholders shall be conducted by two
judges appointed for the purpose, either by the directors or by the chairman of
the meeting. The judges shall decide upon the qualifications of voters, count
the votes and declare the result.
ARTICLE II
BOARD OF DIRECTORS
2.1. Responsibility and Number.
The business and affairs of the corporation shall be managed by or under the
direction of a board of directors. The number of directors shall be determined
from time to time by resolution of the board of directors, but the total number
of directors shall not be less than twelve or more than twenty.
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2.2. Election; Resignation; Vacancies.
At each annual meeting of stockholders, the stockholders shall elect directors
each of whom shall hold office for a term commencing on the date of the annual
meeting of stockholders, or such later date as shall be determined by the board
of directors, and ending on the next annual meeting of stockholders, or until
his successor is elected and qualified. Any director may resign at any time upon
written notice to the chairman of the board or to the secretary. Any vacancy
occurring in the board of directors for any cause may be filled by a majority of
the remaining members of the board of directors, although such majority is less
than a quorum. Each director so elected shall hold office concurrent with the
term of other directors or until his successor is elected and qualified.
2.3. Regular Meetings.
Unless otherwise determined by resolution of the board of directors, a meeting
of the board of directors for the election of officers and the transaction of
such other business as may come before it shall be held as soon as practicable
following the annual meeting of stockholders, and other regular meetings of the
board of directors shall be held either on the first Monday of each month, and
if that be a legal holiday, then on the next Monday not a legal holiday, or such
other days as may from time to time be designated by the chairman of the board
of directors.
2.4. Special Meetings.
Special meetings of the board of directors may be called by the chairman of the
board of directors, the chief executive officer, the president or a vice
chairman, and shall be called by the secretary at the request in writing of one-
third of the directors then in office. Notice of a special meeting of the board
of directors shall be given at least twenty-four hours before the special
meeting.
2.5. Quorum; Vote Required for Action.
At all meetings of the board of directors, one-third of the whole board shall
constitute a quorum for the transaction of business. Except in cases in which
applicable law, the certificate of incorporation or these by-laws otherwise
provide, the vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the board of directors.
2.6. Organization.
The board of directors shall annually elect one of its members to be chairman of
the board and shall fill any vacancy in the position of chairman of the board at
such time and in such manner as the board of directors shall determine. The
chairman of the board may but need not be an officer of or employed in an
executive or any other capacity by the corporation.
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The chairman of the board of directors shall preside at meetings of the board of
directors and lead the board in fulfilling its responsibilities as defined in
section 2.1 and, in particular, its responsibilities to oversee the performance
of the corporation and of the executive management of the corporation.
The board of directors may also elect one of its members as vice chairman of the
board of directors who shall have such duties and responsibilities as are
provided by these by-laws or may be directed by the board of directors, the
chairman of the board, or the chairman of the executive committee of the board
of directors.
In the absence of the chairman of the board of directors, the vice chairman, or
in his absence, the chairman of the executive committee of the board of
directors, or in his absence, a member of the board selected by the members
present, shall preside at meetings of the board. The secretary of the
corporation shall act as secretary of the meetings of the board of directors,
but in his absence the presiding officer may appoint a secretary for the
meeting.
2.7. Transactions with Corporation.
No contract or transaction between the corporation and one or more of its
directors, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose: (1) if the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the board of directors or the committee, and the board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) if the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) if the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the board of directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the board of directors or of a committee which authorizes
the contract or transaction.
2.8. Ratification.
Any transaction questioned in any stockholders' derivative suit on the ground of
lack of authority, defective or irregular execution, adverse interest of
director, officer or stockholder, non-disclosure, miscomputation, or the
application of improper principles or practices of accounting may be ratified
before or after judgment, by the board of directors or by the stockholders in
case less than a quorum of directors are qualified; and, if so ratified, shall
have the same force and effect as if the questioned
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transaction had been originally duly authorized, and said ratification shall be
binding upon the corporation and its stockholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned
transaction.
2.9. Informal Action by Directors.
Unless otherwise restricted by the certificate of incorporation or these by-
laws, any action required or permitted to be taken at any meeting of the board
of directors, or of any committee thereof, may be taken without a meeting if all
members of the board or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board or committee.
2.10. Telephonic Meetings Permitted.
Members of the board of directors, or any committee designated by the board, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this by-law shall constitute presence in person at such meeting.
2.11. Notice of Stockholder Nomination and Stockholder Business.
At a meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. Nominations for the election of
directors may be made by the board of directors or by any stockholder entitled
to vote for the election of directors. Other matters to be properly brought
before the meeting must be: (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the board of directors,
including matters covered by rule 14a-8 of the Securities and Exchange
Commission; (b) otherwise properly brought before the meeting by or at the
direction of the board of directors; or (c) otherwise properly brought before
the meeting by a stockholder.
A notice of the intent of a stockholder to make a nomination or to bring any
other matter before the meeting shall be made in writing and received by the
secretary of the corporation not more than 180 days and not less than 120 days
in advance of the annual meeting or, in the event of a special meeting of
stockholders, such notice shall be received by the secretary of the corporation
not later than the close of the fifteenth day following the day on which notice
of the meeting is first mailed to stockholders.
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Every such notice by a stockholder shall set forth:
(a) the name and residence address of the stockholder of the corporation who
intends to make a nomination or bring up any other matter;
(b) a representation that the stockholder is a holder of the corporation's
voting stock and intends to appear in person or by proxy at the meeting to make
the nomination or bring up the matter specified in the notice;
(c) with respect to notice of an intent to make a nomination, a description of
all arrangements or understandings among the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder;
(d) with respect to notice of an intent to make a nomination, such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated
by the board of directors of the corporation; and
(e) with respect to notice of an intent to bring up any other matter, a
description of the matter, and any material interest of the stockholder in the
matter.
Notice of intent to make a nomination shall be accompanied by the written
consent of each nominee to serve as director of the corporation if so elected.
At the meeting of stockholders, the chairman shall declare out of order and
disregard any nomination or other matter not presented in accordance with this
section.
2.12. Independent Directors.
(a) Majority of Board's Nominees in Annual Proxy Statement for Election to
Board of Directors to be Independent. A majority of the individuals to
constitute the nominees of the board of directors for the election of whom the
board will solicit proxies from the stockholders for use at the corporation's
annual meeting shall consist of individuals who, on the date of their selection
as the nominees of the board of directors, would be Independent Directors.
(b) Directors Elected by Board of Directors. In the event the board of
directors elects directors between annual meetings of stockholders, the number
of such directors who qualify as Independent Directors on the date of their
nomination shall be such that the majority of all directors holding office
immediately thereafter shall have been Independent Directors on the date of the
first of their nomination or selection as nominees of the board of directors.
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(c) Definition of Independent Director. For purposes of this by-law, the term
"Independent Director" shall mean a director who: (i) is not and has not been
employed by the corporation or its subsidiaries in an executive capacity within
the five years immediately prior to the annual meeting at which the nominees of
the board of directors will be voted upon; (ii) is not (and is not affiliated
with a company or a firm that is) a significant advisor or consultant to the
corporation or its subsidiaries; (iii) is not affiliated with a significant
customer or supplier of the corporation or its subsidiaries; (iv) does not have
significant personal services contract(s) with the corporation or its
subsidiaries; (v) is not affiliated with a tax-exempt entity that receives
significant contributions from the corporation or its subsidiaries; and (vi) is
not a spouse, parent, sibling or child of any person described by (i) through
(v).
(d) Interpretation and Application of This By-Law. The board of directors shall
have the exclusive right and power to interpret and apply the provisions of this
by-law, including, without limitation, the adoption of written definitions of
terms used in and guidelines for the application of this by-law (any such
definitions and guidelines shall be filed with the Secretary, and such
definitions and guidelines as may prevail shall be made available to any
stockholder upon written request); any such definitions or guidelines and any
other interpretation or application of the provisions of this by-law made in
good faith shall be binding and conclusive upon all holders of GM Equity
Securities, provided that, in the case of any interpretation or application of
this by-law by the board of directors to a specific person which results in such
person being classified as an Independent Director, the board of directors shall
have determined that such person is independent of management and free from any
relationship that, in the opinion of the board of directors, would interfere
with such person's exercise of independent judgment as a board member.
ARTICLE III
COMMITTEES
3.1. Committees of the Board of Directors.
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, consisting of one or more of the
directors of the corporation, to be committees of the board of directors
("committees of the board"). All committees of the board may authorize the seal
of the corporation to be affixed to any papers which may require it. To the
extent provided in any resolution of the board of directors or these by-laws,
and to the extent permissible under the laws of the State of Delaware and the
certificate of incorporation, any such committee shall have and may exercise all
the powers and authority of the board of directors in the management of the
business and affairs of the corporation.
The following committees shall be standing committees of the board: the
executive committee, the investment funds committee, the audit committee, the
executive compensation committee, the public policy committee, the committee on
director affairs and the capital stock committee. The
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board of directors may designate, by resolution adopted by a majority of the
whole board, additional committees of the board and may prescribe for each such
committee such powers and authority as may properly be granted to such
committees in the management of the business and affairs of the corporation.
3.2. Election and Vacancies.
The members and chairmen of each standing committee of the board shall be
elected annually by the board of directors at its first meeting after each
annual meeting of stockholders or at any other time the board of directors shall
determine. The members of other committees of the board may be elected at such
time as the board may determine. Vacancies in any committee of the board may be
filled at such time and in such manner as the board of directors shall
determine. No officer or other employee of the corporation shall be a member of
any standing committee of the board, with the exception of the investment funds
committee.
3.3. Procedure; Quorum.
Except to the extent otherwise provided in these by-laws or any resolution of
the board of directors, each committee of the board and each committee of the
corporation may fix its own rules of procedure.
The members necessary to constitute a quorum of any committee of the board or
committee of the corporation shall be one-third of the members thereof, or such
larger number as shall be set forth in the by-laws, or as shall be determined
from time to time by resolution of the board of directors. The vote of a
majority of the members present at a meeting of a committee of the board or
committee of the corporation at which meeting a quorum is present shall be the
act of the committee unless the certificate of incorporation, the by-laws or a
resolution of the board of directors shall require the vote of a greater number.
3.4. Executive Committee.
The members of the executive committee shall be the chairmen of the other
standing committees of the board of directors and the chairman of the executive
committee, who shall be a director designated by the board of directors. The
chairman of the executive committee shall not concurrently be the chairman of
any of the standing committees of the board of directors and shall not be an
officer or employee of the corporation. The chairman of the executive committee
shall be an ex officio member of each standing committee of the board of
directors. The executive committee of the board of directors shall have and may
exercise, between meetings of the board of directors, all of the powers and
authority which the board of directors may exercise in the direction and
management of the business and affairs of the corporation, except as prohibited
by the law of the State of Delaware or the certificate of incorporation.
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3.5. Investment Funds Committee.
The board of directors shall select the members of the investment funds
committee and shall designate the chairman of the committee. Except for powers
hereinafter assigned to the audit committee and the executive compensation
committee, or as otherwise provided by the board of directors, the investment
funds committee shall have and may exercise the powers, authority and
responsibilities of the board of directors for the determination of the
financial policies of the corporation and the management of the financial
affairs of the corporation.
3.6. Audit Committee.
The board of directors shall select the members of the audit committee and shall
designate the chairman of the committee. The members of the audit committee
shall not be eligible to participate in any incentive compensation plan for
employees of the corporation or any of its subsidiaries. The selection by the
committee of accountants for the ensuing calendar year shall be made annually in
advance of the annual meeting of stockholders and shall be submitted to the
stockholders for ratification or rejection at such meeting. The audit committee
shall have and may exercise such powers, authority and responsibilities as are
normally incident to the functions of an audit committee or as may be determined
by the board of directors.
3.7. Executive Compensation Committee.
The board of directors shall select the members of the executive compensation
committee and shall designate the chairman of the committee. No member of the
committee shall be eligible to participate in any plan falling within the
jurisdiction of the committee. The committee shall have and may exercise the
powers and authority granted to it by any incentive compensation plan for
employees of the corporation or any of its subsidiaries, and such other powers,
authority and responsibilities as may be determined by the board of directors.
The committee shall determine the compensation of: (a) employees of the
corporation who are directors of the corporation; and (b) after receiving and
considering the recommendation of the chief executive officer and the president
of the corporation, all other employees of the corporation who are officers of
the corporation or who occupy such other positions as may be designated by the
committee.
Where compensation is payable to an employee of any subsidiary and such employee
is also a director or officer of the corporation or one of its subsidiaries, or
where such employee occupies such other position as may be designated by the
committee and such compensation is determined by or on behalf of such
subsidiary, the amount so determined shall first be submitted to the committee
for its review. No such determination shall be effective if it would result in
compensation which, in the aggregate or with respect to any one or more of such
employees, would exceed amounts or rates established or approved by the
committee.
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Where any employee benefit or incentive compensation plan affects employees of
the corporation or its subsidiaries and the compensation of such employees is
determined or subject to review by the committee, such plan shall first be
submitted to the committee for its review. Any such plan or amendment or
modification shall be made effective with respect to such employees only if and
to the extent approved by the committee.
3.8. Public Policy Committee.
The board of directors shall select the members of the public policy committee,
and shall designate the chairman of the committee. The committee shall, upon its
own initiative or otherwise, inquire into all phases of the corporation's
business activities that relate to matters of public policy. The committee may
make recommendations to the board of directors to assist it in the formulation
and adoption of basic policies calculated to promote the best interests of the
corporation and the community. The public policy committee shall have and may
exercise such other powers, authority and responsibilities as may be determined
by the board of directors.
3.9. Committee on Director Affairs.
The board of directors shall select the members of the committee on director
affairs, and shall designate the chairman of the committee. The committee shall
be responsible for matters related to service on the board of directors of the
corporation, and associated issues of corporate governance. The committee from
time to time shall conduct studies of the size and composition of the board of
directors. Prior to each annual meeting of stockholders, the committee shall
recommend to the board the individuals to constitute the nominees of the board
of directors, the election of whom the board will solicit proxies. The committee
shall review the qualifications of individuals for consideration as director
candidates and shall recommend to the board, for its consideration, the names of
individuals for election by the board. In addition, the committee shall from
time to time conduct studies and make recommendations to the board regarding
compensation of directors. The committee shall have and may exercise such other
powers, authority and responsibilities as may be determined by the board of
directors.
3.10. Capital Stock Committee.
The board of directors shall select the members of the capital stock committee
and shall designate the chairman of the committee. The committee shall be
responsible for reviewing the policies, programs and practices of the
corporation relating to: (a) the business and financial relationships between
the corporation or any of its units with Hughes Electronics Corporation; (b)
dividends in respect of, disclosures to stockholders and the public concerning,
and transactions by the corporation or any of its subsidiaries in, shares of
Class H Common Stock; and (c) any matters arising in connection therewith, all
to the extent the committee may deem appropriate, and to recommend such changes
in such policies, programs and practices as the committee may deem appropriate.
In performing this function, the committee's role is not to make decisions
concerning
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matters referred to its attention, but rather to oversee the process by which
decisions concerning such matters are made. The committee shall have and may
exercise such other powers, authority and responsibilities as may be determined
by the board of directors.
ARTICLE IV
OFFICERS
4.1. Elected Officers.
The officers of the corporation shall be elected by the board of directors.
There shall be a chief executive officer, a president, one or more executive
vice presidents, one or more vice presidents, a secretary, a treasurer, a
comptroller, a general counsel, a general auditor and a chief tax officer. The
chief executive officer and the president shall be members of the board of
directors and shall have the other powers, authority and responsibilities
provided by these by-laws. The officers, other than the chief executive officer
and the president, shall each have, in addition to the powers, authority and
responsibilities of those officers otherwise provided by the by-laws, such
powers, authority and responsibilities as the board of directors or the chief
executive officer may determine. The board of directors may also elect persons
to hold such other offices as the board of directors shall determine, including
one or more vice chairmen of the board. A person may hold any number of offices.
Elected officers shall hold their offices at the pleasure of the board of
directors, or until their earlier resignation.
4.2. Chief Executive Officer.
The chief executive officer shall have the general executive responsibility for
the conduct of the business and affairs of the corporation. If the chairman so
designates or is absent, the chief executive officer shall preside at meetings
of the stockholders. He shall exercise such other powers, authority and
responsibilities as the board of directors may determine.
In the absence of or during the physical disability of the chief executive
officer, the board of directors shall designate an officer who shall have and
exercise the powers, authority and responsibilities of the chief executive
officer.
4.3. President.
The president shall have and exercise such powers, authority and
responsibilities as the board of directors may determine.
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4.4. Treasurer.
The treasurer shall have custody of all funds and securities of the corporation
and shall perform all acts incident to the position of treasurer. He shall
render such accounts and reports as may be required by the board of directors.
The records, books and accounts of the office of the treasurer shall, during the
usual hours for business at the office of the treasurer, be open to the
examination of any director.
4.5. Secretary.
The secretary shall keep the minutes of all meetings of stockholders and
directors and of such committees of the board of directors as to which he may be
so directed. He shall give all required notices and shall have charge of such
books and papers as the board of directors may require. He shall submit such
reports to the board of directors or to any of the committees of the board or
committees of the corporation as the board of directors or any such committee
may require. Any action or duty required to be performed by the secretary may be
performed by an assistant secretary.
4.6. Comptroller.
The comptroller shall be in charge of the accounts of the corporation and shall
perform all acts incident to the position of comptroller. He shall submit such
reports and records to the board of directors or to any of the committees of the
board or committees of the corporation as the board of directors or any such
committee may require.
4.7. General Counsel.
The board of directors shall elect a general counsel who shall be the chief
legal officer of the corporation. He shall have general control of all matters
of legal import concerning the corporation and shall have such other powers,
authority and responsibilities as may be determined by the board of directors or
the chief executive officer.
4.8. General Auditor.
The general auditor shall have such powers, authority and responsibilities as
are incident to the position of general auditor in the performance of an
independent audit activity of the corporation and shall have direct access to
the audit committee.
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4.9. Chief Tax Officer.
The chief tax officer shall have responsibility for all tax matters involving
the corporation, with authority to sign and to delegate to others authority to
sign all returns, reports, agreements and documents involving the administration
of the corporation's tax affairs.
4.10. Subordinate Officers.
The board of directors may from time to time appoint one or more assistant
secretaries, assistant treasurers, assistant comptrollers, and such other
subordinate officers as the board of directors may deem advisable. Such
subordinate officers shall have such powers, authority and responsibilities as
the board of directors may from time to time determine. The board of directors
may grant to any committee of the board or the chief executive officer the power
and authority to appoint subordinate officers and to prescribe their respective
terms of office, powers, authority and responsibilities. Each subordinate
officer shall hold his position at the pleasure of the board of directors, the
committee of the board appointing him, the chief executive officer and any other
officer to whom such subordinate officer reports.
In the interval between annual organizational meetings of the board of
directors, the chief executive officer shall have the power and authority to
appoint such subordinate officers. Such subordinate officers shall serve until
the first meeting of the board of directors immediately following the annual
meeting of stockholders.
4.11. Resignation, Removal, Suspension and Vacancies.
Any officer may resign at any time by giving written notice to the chief
executive officer, the president or the secretary. Unless stated in the notice
of resignation, the acceptance thereof shall not be necessary to make it
effective. It shall take effect at the time specified therein or, in the absence
of such specification, it shall take effect upon the receipt thereof.
Any officer elected by the board of directors may be suspended or removed at any
time by the affirmative vote of a majority of the whole board. Any subordinate
officer of the corporation appointed by the board of directors or a committee of
the board, or the chief executive officer, may be suspended or removed at any
time by a majority vote of a quorum of the board of directors or committee
appointing such subordinate officer, or by the chief executive officer or any
other officer to whom such subordinate officer reports.
The chief executive officer may suspend the powers, authority, responsibilities
and compensation of any elected officer or appointed subordinate officer for a
period of time sufficient to permit the board or the appropriate committee of
the board a reasonable opportunity to consider and act upon a resolution
relating to the reinstatement, further suspension or removal of such person.
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As appropriate, the board of directors, a committee of the board, and/or the
chief executive officer may fill any vacancy created by the resignation, death,
retirement or removal of an officer in the same manner as provided for the
election or appointment of such person.
ARTICLE V
INDEMNIFICATION
5.1. Right to Indemnification of Directors and Officers.
Subject to the other provisions of this article, the corporation shall indemnify
and advance expenses to every director and officer (and to such person's heirs,
executors, administrators or other legal representatives) in the manner and to
the full extent permitted by applicable law as it presently exists, or may
hereafter be amended, against any and all amounts (including judgments, fines,
payments in settlement, attorneys' fees and other expenses) reasonably incurred
by or on behalf of such person in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative ("a proceeding"), in which such director or officer was or is made
or is threatened to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee, fiduciary or member of any other corporation, partnership, joint
venture, trust, organization or other enterprise. The corporation shall not be
required to indemnify a person in connection with a proceeding initiated by such
person if the proceeding was not authorized by the board of directors of the
corporation.
5.2. Advancement of Expenses of Directors and Officers.
The corporation shall pay the expenses of directors and officers incurred in
defending any proceeding in advance of its final disposition ("advancement of
expenses"); provided, however, that the payment of expenses incurred by a
director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the director or officer to repay
all amounts advanced if it should be ultimately determined that the director or
officer is not entitled to be indemnified under this article or otherwise.
5.3. Claims by Officers or Directors.
If a claim for indemnification or advancement of expenses by an officer or
director under this article is not paid in full within ninety days after a
written claim therefor has been received by the corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or advancement of
expenses under applicable law.
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5.4. Indemnification of Employees.
Subject to the other provisions of this article, the corporation may indemnify
and advance expenses to every employee who is not a director or officer (and to
such person's heirs, executors, administrators or other legal representatives)
in the manner and to the full extent permitted by applicable law as it presently
exists, or may hereafter be amended against any and all amounts (including
judgments, fines, payments in settlement, attorneys' fees and other expenses)
reasonably incurred by or on behalf of such person in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("a proceeding"), in which such
employee was or is made or is threatened to be made a party or is otherwise
involved by reason of the fact that such person is or was an employee of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, fiduciary or member of any other corporation,
partnership, joint venture, trust, organization or other enterprise. The
ultimate determination of entitlement to indemnification of employees who are
not officers and directors shall be made in such manner as is provided by
applicable law. The corporation shall not be required to indemnify a person in
connection with a proceeding initiated by such person if the proceeding was not
authorized by the board of directors of the corporation.
5.5. Advancement of Expenses of Employees.
The advancement of expenses of an employee who is not an officer or director
shall be made by or in the manner provided by resolution of the board of
directors or by a committee of the board of directors or of the corporation.
5.6. Non-Exclusivity of Rights.
The rights conferred on any person by this Article V shall not be exclusive of
any other rights which such person may have or hereafter acquire under any
statute, provision of the certificate of incorporation, these by-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
5.7. Other Indemnification.
The corporation's obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer or employee of another
corporation, partnership, joint venture, trust, organization or other enterprise
shall be reduced by any amount such person may collect as indemnification from
such other corporation, partnership, joint venture, trust, organization or other
enterprise.
5.8. Insurance.
The board of directors may, to the full extent permitted by applicable law as it
presently exists, or may hereafter be amended from time to time, authorize an
appropriate officer or officers to
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purchase and maintain at the corporation's expense insurance: (a) to indemnify
the corporation for any obligation which it incurs as a result of the
indemnification of directors, officers and employees under the provisions of
this Article V; and (b) to indemnify or insure directors, officers and employees
against liability in instances in which they may not otherwise be indemnified by
the corporation under the provisions of this Article V.
5.9. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this Article V shall
not adversely affect any right or protection hereunder of any person in respect
of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE VI
MISCELLANEOUS
6.1. Offices.
The registered office of the corporation shall be located at 1209 Orange Street,
Wilmington, New Castle County, Delaware, and the name of the registered agent in
charge thereof shall be The Corporation Trust Company. The corporation may also
have other offices without as well as within the State of Delaware. The books of
the corporation may be kept outside the State of Delaware.
6.2. Stock Certificates.
The shares of the corporation shall be represented by certificates unless the
board of directors shall by resolution provide that some or all of any class or
series of stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until the certificate is
surrendered to the corporation. Notwithstanding the adoption of any resolution
providing for uncertificated shares, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the corporation by,
the chairman or vice chairman of the board of directors, or the president or
vice president, and by the treasurer or an assistant treasurer, or the secretary
or an assistant secretary, representing the number of shares registered in
certificate form. The form of such certificates and the signatures thereon shall
comply with the requirements of Delaware law. The corporation shall maintain a
record of the holders of each certificate and transfer stock and issue new
certificates to replace lost, stolen or destroyed certificates only pursuant to
the applicable requirements of Delaware law as they presently exist, or may be
amended from time to time.
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6.3. Seal.
The corporate seal shall have inscribed upon it the name of the corporation, the
year of its organization and the words "Corporate Seal," and "Delaware." The
seal shall be in the charge of the secretary. The board of directors or the
investment funds committee may authorize a duplicate seal to be kept and used by
any other officer.
6.4. Dividends on Preferred Stock.
All dividends declared upon the preferred stock shall be payable quarterly upon
the first day of February, May, August and November in each year, but if that is
a legal holiday, then on the next day not a legal holiday.
6.5. Fiscal Year.
The fiscal year of the corporation shall begin on January 1st and terminate on
December 31st in each year.
6.6. Annual Report.
At least fifteen days in advance of the annual meeting of stockholders, the
board of directors shall publish and submit to the stockholders consolidated
financial statements for the previous fiscal year. The board of directors shall
also publish consolidated financial statements for each of the first three
quarters of each fiscal year.
6.7. Notice.
Any notice required to be given by these by-laws may be given personally or in
writing by delivery to the United States postal system in a postpaid envelope
directed to such address as appears in the records of the corporation, or, in
default of other address, to the general post office in Wilmington, New Castle
County, Delaware. Such notice shall be deemed to be given at the time of
mailing, except as otherwise provided in these by-laws. In addition, except as
otherwise required by law or these by-laws, notice need not be given of any
adjourned meeting other than by announcement at the meeting which is being
adjourned.
6.8. Waiver of Notice.
Whenever any notice is required to be given, a waiver thereof in writing, signed
by the person or persons entitled to the notice, whether before or after the
time stated therein, shall be deemed equivalent thereto. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully
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called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors, or members of
a committee of directors need be specified in any written waiver of notice.
6.9. Voting of Stocks Owned by the Corporation.
The board of directors, the investment funds committee or the chairman of the
board may authorize any person, and delegate to one or more other officers, the
authority to authorize any person in behalf of the corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
in which General Motors Corporation may hold stock.
6.10. Form of Records.
Any records maintained by the corporation in the regular course of its business,
including its stock ledger, books of account, and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape, photographs, microphotographs,
or any other information storage device, provided that the records so kept can
be converted into clearly legible form within a reasonable time. The corporation
shall so convert any records so kept upon the request of any person entitled to
inspect the same.
6.11. Amendment of By-Laws.
The board of directors shall have power to adopt, amend or repeal the by-laws at
any regular or special meeting of the directors. The stockholders shall also
have power to adopt, amend or repeal the by-laws at any annual or special
meeting, subject to compliance with the notice provisions provided in section
2.11.
6.12. Anti-Greenmail.
(a) Vote Required for Certain Acquisitions of Securities. Except as set forth
in Subsection (b) hereof, in addition to any affirmative vote of stockholders
required by any provision of law, the certificate of incorporation or by-laws of
the corporation, or any policy adopted by the board of directors, neither the
corporation nor any subsidiary shall knowingly effect any direct or indirect
purchase or other acquisition of any GM Equity Security of any class or classes
issued by the corporation at a price which is in excess of the highest Market
Price of such GM Equity Security on the largest principal national securities
exchange in the United States on which such security is listed for trading on
the date that the understanding to effect such transaction is entered into by
the corporation (whether or not such transaction is concluded or a written
agreement relating to such transaction is executed on such date, such date to be
conclusively established by determination of the board of directors), from any
Interested Person (i.e., any person who is the direct or indirect beneficial
owner of more than three percent (3%) of the aggregate voting power of the
Voting Shares of the corporation) who has beneficially owned such GM Equity
Securities for less than two
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years prior to such date, without the affirmative vote of the holders of the
Voting Shares which represent at least a majority of the aggregate voting power
of the corporation, excluding Voting Shares beneficially owned by such
Interested Person, voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or that
a lesser percentage may be specified, by law or any agreement with any national
securities exchange, or otherwise.
(b) When A Vote Is Not Required. The provisions of Section (a) hereof shall not
be applicable with respect to:
(i) any purchase, acquisition, redemption or exchange of GM Equity
Securities, the purchase, acquisition, redemption or exchange of which, at
the time any such transaction is entered into, is provided for in the
corporation's certificate of incorporation (including any resolution or
resolutions of the board of directors providing for the issuance of
Preferred Stock or Preference Stock by the corporation);
(ii) any purchase or other acquisition of GM Equity Securities made as
part of a tender or exchange offer by the corporation to purchase
securities of the same class made on the same terms to all holders of such
securities and complying with the applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder (or any successor provisions to such Act, rules or
regulations);
(iii) any purchase or acquisition of GM Equity Securities made pursuant to
an open market purchase program which has been approved by the board of
directors; or
(iv) any purchase or acquisition of GM Equity Securities made from, or any
purchase or acquisition of GM Equity Securities made pursuant to or on
behalf of, an employee benefit plan maintained by the corporation, or any
subsidiary or any trustee of, or fiduciary with respect to any such plan
when acting in such capacity.
(c) Interpretation of This By-Law. The board of directors shall have the
exclusive right and power to interpret the provisions of this by-law, including,
without limitation, the adoption of written definitions of terms used in this
by-law (any such definitions shall be filed with the Secretary, and such
definitions as may prevail shall be made available to any stockholder upon
written request); any such interpretation made in good faith shall be binding
and conclusive upon all holders of GM Equity Securities.
6.13. Gender Pronouns.
Whenever the masculine pronoun is used herein it shall be deemed to refer to
either the masculine or the feminine gender.
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DEFINITIONS OF CERTAIN TERMS
USED IN
AND
GUIDELINES FOR THE APPLICATION
OF
BY-LAW 2.12
OF
GENERAL MOTORS CORPORATION
Certain Definitions.
For the purposes of Section 2.12 of the By-Laws of General Motors Corporation,
(the "Corporation") the board of directors has adopted the following
definitions, effective January 7, 1991.
(i) "Affiliate" of a person, or a person "affiliated with," a specified
person, shall mean a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, the specified person.
(ii) The term "control" (including the terms "controlling," "controlled
by" and "under common control with") shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise; provided, however, that a person
shall not be deemed to control another person solely because he or she is
a director of such other person.
(iii) "GM Equity Security" shall mean any security described in Section
3(a)(11) of the Exchange Act, as of the effective date hereof, which is
issued by GM and traded on a national securities exchange or the NASDAQ
National Market System.
(iv) A "subsidiary" of the Corporation shall mean any corporation a
majority of the voting stock of which is owned, directly or indirectly
through one or more other subsidiaries, by the Corporation.
(v) The employment of a person by the Corporation or its subsidiaries
shall be deemed to be in an "executive capacity" during the period that
such person (A) served as an elected officer of the Corporation or one of
its subsidiaries, or (B) reported directly to a person who served as an
elected officer of the Corporation or one of its subsidiaries.
(vi) A person shall be deemed to be, or to be affiliated with, a company
or firm that is a "significant advisor or consultant to the corporation or
its subsidiaries" if he, she or it, as the case may be, received or would
receive fees or similar compensation from the
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Corporation or a subsidiary of the Corporation in excess of the lesser of
(A) three percent (3%) of the consolidated gross revenues which the
Corporation and its subsidiaries received for the sale of their products
and services during the last fiscal year of the Corporation; (B) five
percent (5%) of the gross revenues of the person during the last calendar
year, if such person is a self-employed individual, or (C) five percent
(5%) of the consolidated gross revenues received by such company or firm
for the sale of its products and services during its last fiscal year, if
the person is a company or firm; provided, however, that directors' fees
and expense reimbursements shall not be included in the gross revenues of
an individual for purposes of this determination.
(vii) A "significant customer of the corporation and its subsidiaries"
shall mean a customer from which the Corporation and its subsidiaries
collectively in the last fiscal year of the Corporation received payments
in consideration for the products and services of the Corporation and its
subsidiaries which are in excess of three percent (3%) of the consolidated
gross revenues of the Corporation and its subsidiaries during such fiscal
year.
(viii) A "significant supplier of the corporation and its subsidiaries"
shall mean a supplier to which the Corporation and its subsidiaries
collectively in the last fiscal year of the Corporation made payments in
consideration for the supplier's products and services in excess of three
percent (3%) of the consolidated gross revenues of the Corporation and its
subsidiaries during such fiscal year.
(ix) The Corporation and its subsidiaries shall be deemed a "significant
customer of a company" if the Corporation and its subsidiaries
collectively were the direct source during such company's last fiscal year
of in excess of five percent (5%) of the gross revenues which such company
received for the sale of its products and services during that year.
(x) The Corporation and its subsidiaries shall be deemed a "significant
supplier of a company" if the Corporation and its subsidiaries
collectively received in such company's last fiscal year payments from
such company in excess of five percent (5%) of the gross revenues which
such company received during that year for the sale of its products and
services.
(xi) A person shall be deemed to have "significant personal services
contract(s) with the corporation or its subsidiaries" if the fees and
other compensation received by the person pursuant to personal services
contract(s) with the Corporation or its subsidiaries exceeded or would
exceed five percent (5%) of his or her gross revenues during the last
calendar year.
(xii) A tax-exempt entity shall be deemed to receive "significant
contributions" from the Corporation or its subsidiaries if such tax-exempt
entity received during its last fiscal
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year, or expects to receive during its current fiscal year, contributions
from the Corporation or its subsidiaries in excess of the lesser of either
(A) three percent (3%) of the consolidated gross revenues of the
Corporation and its subsidiaries during its last fiscal year, or (B) five
percent (5%) of the contributions received by the tax-exempt entity during
its last fiscal year.
Guidelines for Application.
(i) For purposes of identifying payments for products and services
contemplated by the definitions set forth above, and performing the
related calculations, the board of directors may exclude payments such as
those described in paragraph 2 of the Instructions to Paragraph (b) of
Item 404 of Regulation S-K, as promulgated by the Securities and Exchange
Commission as of the effective date hereof.
(ii) The board of directors shall be entitled to rely upon the
completeness and accuracy of directors' responses to written
questionnaires circulated for the purpose of enabling the board of
directors to make the determinations of independence required by the
provisions of By-Law 2.12.
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SECURITIES ACT AND EXCHANGE ACT
PARAGRAPH 2 OF INSTRUCTIONS TO
PARAGRAPH (b) OF ITEM 404 OF REGULATION S-K
AS IN EFFECT ON JANUARY 7, 1991
[REFERRED TO IN PARAGRAPH (i) OF
GUIDELINES FOR APPLICATION OF BY-LAW 2.12 OF
GENERAL MOTORS CORPORATION]
2. In calculating payments for property and services the following may be
excluded:
A. Payments where the rates or charges involved in the transaction are
determined by competitive bids, or the transaction involves the rendering
of services as a common contract carrier, or public utility, at rates or
charges fixed in conformity with law or governmental authority;
B. Payments that arise solely from the ownership of securities of the
registrant and no extra or special benefit not shared on a pro rata basis
by all holders of the class of securities is received; or
C. Payments made or received by subsidiaries other than significant
subsidiaries as defined in Rule 1-02(v) of Regulation S-X, provided that
all such subsidiaries making or receiving payments, when considered in the
aggregate as a single subsidiary, would not constitute a significant
subsidiary as defined in Rule 1-02(v).*
_____________________________
* The General Motors Legal Staff notes that Rule 1-02(v) of Regulation S-X
provides, generally, that a significant subsidiary of General Motors
Corporation would be one which, together with its subsidiaries, meets any
of the following conditions:
(1) General Motors' and its other subsidiaries' investments in and
advances to the subsidiary exceed ten percent (10%) of the total assets of
General Motors and its consolidated subsidiaries.
(2) General Motors' and its other subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of the subsidiary
exceeds ten percent (10%) of the total assets of General Motors and its
consolidated subsidiaries.
(3) General Motors' and its other subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of the subsidiary
exceeds ten percent (10%) of such income of General Motors and its
consolidated subsidiaries.
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DEFINITION OF CERTAIN TERMS
USED IN BY-LAW 6.12
OF
GENERAL MOTORS CORPORATION
Certain Definitions.
For the purposes of Section 6.12 of the By-Laws of General Motors Corporation,
the board of directors has adopted the following definitions, effective March 5,
1990:
(i) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act, as in effect on January 1, 1990.
(ii) "Beneficial Owner" and "Beneficial Ownership" shall have the
meanings ascribed to such terms in Rule 13d-3 and Rule 13d-5 of the
General Rules and Regulations under the Exchange Act, as in effect on
January 1, 1990.
(iii) "GM Equity Security" shall mean any security described in Section
3(a) (11) of the Exchange Act, as in effect on January 1, 1990, which is
issued by GM and traded on a national securities exchange or the NASDAQ
National Market System.
(iv) "Interested Person" shall mean any person (other than the Corporation
or any Subsidiary) that is the direct or indirect Beneficial Owner of more
than three percent (3%) of the aggregate voting power of the Voting
Shares, and any affiliate or associate of any such person. For the
purpose of determining whether a Person is an Interested Person, the
outstanding Voting Shares shall include unissued shares of voting stock of
the corporation of which the Interested Person is the Beneficial Owner,
but shall not include any other shares of voting stock of the corporation
which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options,
or otherwise, to any Person who is not the Interested Person.
(v) "Market Price" of shares of a class of GM Equity Security on any day
shall mean the highest sale price (regular way) of shares of such class of
GM Equity Security on such day, or, if that day is not a trading day, on
the trading day immediately preceding such day, on the largest principal
national securities exchange on which such class of stock is then listed
or admitted to trading, or if not listed or admitted to trading on any
national securities exchange, then the highest reported sale price for
such shares in the over-the-counter market as reported on the NASDAQ
National Market System, or if such sale prices shall not be reported
thereon, the highest bid price so reported, or, if such price
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shall not be reported thereon, as the same shall be reported by the
National Quotation Bureau Incorporated; in the case of any GM Equity
Security which is the Preferred Stock or Preference Stock of the
corporation (of any series), the Market Price thereof shall be the Market
Price, as hereinabove defined, of the Voting Shares which the holder of
such Preferred Stock or Preference Stock may then acquire by reason of the
redemption, exchange, conversion or exercise of other rights as may be
provided for in the terms of such securities.
(vi) "Person" shall mean any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well
as any syndicate or group deemed to be a person pursuant to Section
13(d)(3) of the Exchange Act, as in effect on January 1, 1990.
(vii) "Subsidiary" shall mean any company of which the corporation owns,
directly or indirectly, (A) a majority of the outstanding shares of equity
securities, or (B) shares having a majority of the voting power
represented by all of the outstanding voting stock of such company. For
the purpose of determining whether a company is a Subsidiary, the
outstanding voting stock and shares of equity securities thereof shall
include unissued shares of which the corporation is the Beneficial Owner
but, except for the purpose of determining whether a company is a
Subsidiary for purposes of the definition of Interested Person as used in
By-Law Section 6.12, shall not include any other shares which may be
issuable pursuant to any agreement, arrangement or understanding, or upon
the exercise of conversion rights, warrants or options, or otherwise, to
any Person who is not the corporation.
(viii) "Voting Shares" shall mean the outstanding shares of capital stock
of the corporation entitled to vote generally in the election of
directors.
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CERTIFICATE
-----------
The undersigned hereby certifies that the foregoing is a true and complete copy
of the By-Laws of General Motors Corporation including all amendments, as the
same are in force at the date hereof.
In Witness Whereof, I have hereunto subscribed my name and affixed the seal of
said Corporation, this ___________ day of______________________, l9__.
________________________________
Secretary
