SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported) December 17, 1997
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GENERAL MOTORS CORPORATION
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(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 1-143 38-0572515
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
100 Renaissance Center, Detroit, Michigan 48243-7301
3044 West Grand Boulevard, Detroit, Michigan 48202-3091
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (313)-556-5000
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ITEM 5. OTHER EVENTS
On December 18, 1997, General Motors Corporation (GM) issued a news
release announcing the completion on December 17, 1997 of a strategic
restructuring of its Hughes Electronics subsidiary, including the spin-off and
merger of its defense electronics unit with Raytheon Company and the transfer of
Delco Electronics to GM's Delphi Automotive Systems. The holders of a majority
of the outstanding shares of each class of GM common stock, $1-2/3 par value and
Class H, approved the transactions. The content of the news release was as
follows:
GM COMPLETES HUGHES TRANSACTIONS
NEW YORK -- General Motors Corporation (NYSE: GM, GMH) today announced the
completion of a strategic restructuring of its Hughes Electronics subsidiary,
including the spin-off and merger of its defense electronics unit with Raytheon
Company and the transfer of Delco Electronics to GM's Delphi Automotive Systems.
A majority of holders of each class of GM common stock --$1-2/3 par value and
Class H -- approved the transactions.
"Completion of the Hughes transactions is a win-win for GM and its
stockholders," said John F. Smith, Jr., chairman, chief executive officer and
president of GM. "The transactions reflect significant premiums on the
businesses involved and better position Hughes Defense and Delphi/Delco to
compete in the future."
The Hughes transactions were designed to address strategic challenges
facing the three principal businesses of Hughes Electronics and unlock
shareholder value at GM. The Hughes transactions include:
- The spin-off of the defense electronics business of Hughes Electronics
to GM $1-2/3 and Class H common stockholders. Hughes Defense then
merged with Raytheon Company in a transaction with an estimated value
for Hughes Defense of more than $9.8 billion;
- The transfer of Delco Electronics, GM's automotive electronics
business, from Hughes Electronics to GM. Delco will be integrated into
GM's Delphi Automotive Systems, creating the world's leading automotive
components company and better positioning these businesses to
participate in the component industry trend toward integrated
automotive systems; and
- The recapitalization of GM Class H common stock into a new class of GM
common stock that will track Hughes' telecommunications and space
businesses (Hughes Telecom). Proceeds from approximately $4.0 billion
of the debt incurred by Hughes Defense prior to its spin-off and merger
with Raytheon will be made available as equity to fund Hughes Telecom.
The new GM Class H stock, which will represent an approximate 25.6 percent
tracking-stock interest in the earnings of the telecommunications and space
businesses of Hughes Electronics, will be traded on the New York Stock Exchange
(NYSE) under the symbol "GMH" beginning today.
The two classes of "new" Raytheon common stock, Class A and Class B, also
begin trading today on the NYSE under the symbol "RTN.A" and "RTN.B." The Class
A common stock represents approximately 30 percent of the outstanding equity
value of the new Raytheon. The Class B common stock represents the remaining
approximately 70 percent of the outstanding equity value of the new Raytheon.
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The value of the Class A stock of the combined Hughes Defense/Raytheon
("new" Raytheon) being distributed to GM common stockholders is approximately
$3.59 per share for holders of GM $1-2/3 common stock and approximately $31.64
per share for holders of Class H common stock, based on the closing price of
Raytheon common stock on the NYSE on Wednesday, Dec. 17, 1997, of $56.25 per
share.
The amount of Class A common stock distributed to holders of each class of
GM common stock was determined by using a distribution ratio formula established
by GM's board of directors. Pursuant to that formula, stockholders will receive
a distribution of 0.56240 shares of Class A stock for each share of GM Class H
common stock and 0.06377 shares of Class A stock for each share of GM $1-2/3
common stock, based on a 30-day average Raytheon stock price of $53.21 per
share. Cash will be paid in lieu of fractional shares.
The record date for holders of GM $1-2/3 and Class H stocks who will
receive the distribution of Raytheon Class A common stock was Dec. 17, 1997. The
ex-distribution date for the GM $1-2/3 common stock will be Friday, Dec. 19,
1997. Sellers of GM $1-2/3 and Class H common stock on the NYSE between the
record date and the ex-distribution date will be required to provide due bills
and deliver the Class A stock they receive to the purchasers of their GM $1-2/3
common stock.
GM announced in January 1997 it was pursuing a series of transactions
involving the restructuring of Hughes Electronics Corporation. GM received a
letter ruling from the U.S. Internal Revenue Service in July, confirming that
the spin-off of Hughes Defense would be tax-free to GM and its stockholders for
U.S. federal income tax purposes.
Detailed Information Related to Stockholder Transactions
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In order for investors who have physical possession of certificates
representing Class H common stock to trade such shares, they will first have to
submit those shares to GM's transfer agent, BankBoston, in order to obtain
certificates representing the new Class H common stock. Investors whose Class H
common stock is held for them by brokers or institutions in "street" or
"nominee" name will be able to effect transactions in such securities
immediately.
With respect to trading in Raytheon Class A common stock, investors whose
$1-2/3 common stock or Class H common stock is held through a broker or
institution will be able to effect transactions in such shares immediately.
Investors who have physical possession of the $1-2/3 common stock or Class H
common stock, ownership of which will entitle them to Class A common stock, will
be able to effect transactions in Class A common stock commencing Monday, Dec.
22, 1997, by first contacting GM's transfer agent, BankBoston at 1-800-331-9922,
in order to determine account balances and arrange for transfers of ownership.
For stockholders who will be retaining Raytheon Class A common stock,
Raytheon's transfer agent will mail account statements to them shortly after the
transfer agent consummates the sale of fractional shares for which stockholders
will receive cash. Such a mailing is expected to be made in the next several
weeks. A letter explaining how to effect transactions in Class A stock will also
be mailed promptly.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit 3(i) General Motors Restated Certificate of Incorporation, as
amended to December 18, 1997.
Article FOURTH of the General Motors Restated Certificate of Incorporation
has been amended to delete provisions relating to GM Class H Common Stock
and add provisions relating to New GM Class H Common Stock, as defined in
the solicitation statement/prospectus of General Motors and Hughes Defense
(i.e. HE Holdings) dated November 10, 1997, including the following
sections:
Section Amendment
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ARTICLE FOURTH
DIVISION I: (a)(1)
Dividends on Common Stock Amended
DIVISION I: (a)(2)
Dividends on Class H
Common Stock Amended
DIVISION I: (a)(3)
Discrimination between
Common Stock, and
Class H Common Stock Amended
DIVISION I: (a)(4)
Available Separate
Consolidated Net Income
of EDS Deleted
DIVISION I: (a)(5)
Available Separate
Consolidated Net Income
of Hughes Amended as DIVISION I: (a)(4)
DIVISION I: (b)
Voting Rights Amended
DIVISION I:
(c)(1) through (c)(11)
Exchangeability Amended
DIVISION I: (d)
Liquidation Rights Amended
DIVISION I:
(e)(1) through (e)(2)
Subdivision or Combination Amended
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The amendments included in the sections listed above include only those
amendments that were included in the complete text of Article FOURTH of
the General Motors Certificate of Incorporation that was filed as Exhibit
A to Appendix A of the solicitation statement/prospectus of General Motors
and Hughes Defense (i.e. HE Holdings) dated November 10, 1997.
Exhibit 3(ii) By-Laws as amended to December 18, 1997, reflecting
amendments to Section 6.2, 6.3, and 6.9., as described below:
Section Amendment
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6.2
Stock Certificates Amended to revise the
Corporation's representation of any class of
series of stock as certificated or
uncertificated.
6.3
Seal Amended to revise the name of the
"Finance Committee" to the "Investment
Funds Committee."
6.9
Voting of Stocks Owned Amended to revise the name of the "Finance
by the Corporation Committee" to the "Investment Funds
Committee."
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENERAL MOTORS CORPORATION
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(Registrant)
Date December 18, 1997
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By
s/Peter R. Bible
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(Peter R. Bible,
Chief Accounting Officer)
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EXHIBIT 3(i)
G E N E R A L M O T O R S C O R P O R A T I O N
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RESTATED
CERTIFICATE OF INCORPORATION
As Amended to
December 18, 1997
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GENERAL MOTORS CORPORATION
RESTATED
CERTIFICATE OF INCORPORATION
As Amended
December 18, 1997
INDEX
ARTICLE FIRST........................................................ 1
ARTICLE SECOND....................................................... 1
ARTICLE THIRD........................................................ 1
ARTICLE FOURTH....................................................... 2
DIVISION I: COMMON STOCK AND CLASS H COMMON STOCK........... 2
(a) Dividend Rights.................................... 2
(1) Dividends on Common Stock..................... 3
(2) Dividends on Class H Common Stock............. 3
(3) Discrimination Between Common Stock
and Class H Common Stock...................... 3
(4) Available Separate Consolidated Net
Income of Hughes.............................. 3
(b) Voting Rights...................................... 4
(c) Exchangeability.................................... 4
(d) Liquidation Rights................................. 7
(e) Subdivision or Combination......................... 7
DIVISION II: PREFERRED STOCK............................... 8
DIVISION III: PREFERENCE STOCK.............................. 9
DIVISION IV: MISCELLANEOUS.................................10
ARTICLE FIFTH........................................................10
ARTICLE SIXTH........................................................11
ARTICLE SEVENTH......................................................11
ARTICLE EIGHTH.......................................................12
ARTICLE NINTH........................................................12
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<PAGE>
GENERAL MOTORS CORPORATION
Restated
Certificate of Incorporation
As Amended
December 18, 1997
ARTICLE FIRST
The name of the Corporation is
GENERAL MOTORS CORPORATION
ARTICLE SECOND
The registered office of the Corporation shall be located at 1209 Orange Street,
in the City of Wilmington, County of New Castle, State of Delaware. The name of
its registered agent in charge thereof is The Corporation Trust Company, 1209
Orange Street, in the City of Wilmington, County of New Castle, State of
Delaware.
ARTICLE THIRD
The nature of the business of the Corporation and the objects and purposes
proposed to be transacted, promoted, or carried on by it, are as follows,
to-wit:
(a) To manufacture, buy, sell and deal in automobiles, trucks, cars, boats,
flying machines and other vehicles, their parts and accessories, and kindred
articles, and generally to conduct an automobile business in all its branches.
(b) To purchase or otherwise acquire, lease, assign, mortgage, pledge or
otherwise dispose of any trade names, trade marks, concessions, inventions,
formulae, improvements, processes of any nature whatsoever, copyrights, and
letters patent of the United States and of foreign countries, and to accept and
grant licenses thereunder.
(c) To subscribe or cause to be subscribed for, and to purchase or otherwise
acquire, hold for investment, sell, assign, transfer, mortgage, pledge,
exchange, distribute or otherwise dispose of the whole or any part of the shares
of the capital stock, bonds, coupons, mortgages, deeds of trust, debentures,
securities, obligations, notes and other evidences of indebtedness of any
corporation, stock company or association, now or hereafter existing, and
whether created by or under the laws of the State of Delaware, or otherwise; and
while owners of any of said shares of capital stock or bonds or other property
to exercise all the rights, powers and privileges of ownership of every kind and
description, including the right to vote thereon, with power to designate some
person for that purpose from time to time to the same extent as natural persons
might or could do.
(d) To purchase, hold, sell and reissue the shares of its own capital stock.
(e) To buy, lease, or otherwise acquire, so far as may be permitted by law, the
whole or any part of the business, good-will, and assets of any person, firm,
association or corporation (either foreign or domestic) engaged in a business of
the same general character as that for which this Corporation is organized.
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(f) To endorse, guarantee and secure the payment and satisfaction of bonds,
coupons, mortgages, deeds of trust, debentures, securities, obligations and
evidences of indebtedness, and also to guarantee and secure the payment or
satisfaction of interest on obligations and of dividends on shares of the
capital stock of other corporations; also to assume the whole or any part of the
liabilities, existing or prospective, of any person, corporation, firm or
association; and to aid in any manner any other person or corporation with which
it has business dealings, or whose stocks, bonds, or other obligations are held
or are in any manner guaranteed by the Corporation, and to do any other acts and
things for the preservation, protection, improvement, or enhancement of the
value of such stocks, bonds, or other obligations.
(g) To engage in any other manufacturing or mercantile business of any kind or
character whatsoever, and to that end to acquire, hold, own and dispose of any
and all property, assets, stocks, bonds and rights of any and every kind.
(h) Without in any particular limiting any of the objects and powers of the
Corporation, it is hereby expressly declared and provided that the Corporation
shall have power to do all things herein before enumerated, and also to issue or
exchange stocks, bonds, and other obligations in payment for property purchased
or acquired by it, or for any other object in or about its business; to borrow
money without limit; to mortgage or pledge its franchises, real or personal
property, income and profits accruing to it, any stocks, bonds or other
obligations, or any property which may be acquired by it, and to secure any
bonds or other obligations by it issued or incurred.
(i) To carry on any business whatsoever which the Corporation may deem proper or
convenient in connection with any of the foregoing purposes or otherwise, or
which may be calculated, directly or indirectly, to promote the interests of the
Corporation or to enhance the value of its property; to conduct its business in
this State, in other States, in the District of Columbia, in the Territories and
Colonies of the United States, and in foreign countries; and to hold, purchase,
mortgage and convey real and personal property, either in or out of the State of
Delaware, and to have and to exercise all the powers conferred by the laws of
Delaware upon corporations formed under the act pursuant to and under which this
Corporation is formed.
ARTICLE FOURTH
The total authorized capital stock of the Corporation is as follows:
2,706,000,000 shares, of which 6,000,000 shares shall be Preferred Stock,
without par value ("Preferred Stock"), 100,000,000 shares shall be Preference
Stock, $0.10 par value ("Preference Stock"), and 2,600,000,000 shares shall be
Common Stock, of which 2,000,000,000 shares shall be Common Stock, $1-2/3 par
value ("Common Stock"), and 600,000,000 shares shall be Class H Common Stock,
$0.10 par value ("Class H Common Stock").
DIVISION I:
COMMON STOCK
AND CLASS H COMMON STOCK.
The Common Stock and the Class H Common Stock shall be identical in all
respects and shall have equal rights and privileges, except as otherwise
provided in this Article FOURTH. The relative rights, privileges and
restrictions of the shares of each class are as follows:
(a) Dividend Rights.
Subject to the express terms of any outstanding series of Preferred Stock or
Preference Stock, dividends may be paid in cash or otherwise upon the Common
Stock and the Class H Common Stock out of the assets of the Corporation in the
relationship and upon the terms provided for below with respect to each such
class:
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(1) Dividends on Common Stock.
Dividends on Common Stock may be declared and paid only to the extent of the
assets of the Corporation legally available for the payment of dividends reduced
by an amount equal to the sum of (A) the amount determined by the GM Board to be
available for the payment of dividends on the Class H Common Stock as of
December 17, 1997 (the "Hughes Transactions Date") plus the paid in surplus
attributable to shares of Class H Common Stock issued after the Hughes
Transactions Date; and (B) that portion of the earned surplus of the Corporation
attributable to the Available Separate Consolidated Net Income of Hughes (as
defined in subparagraph (a)(4)) earned since the Hughes Transactions Date.
Dividends declared and paid with respect to shares of Common Stock and any
adjustments to capital or surplus resulting from either (i) the repurchase or
issuance of any shares of Common Stock or (ii) any other reason deemed
appropriate by the Board of Directors shall be subtracted from or added to the
amount available for the payment of dividends on Common Stock. Subject to the
foregoing, the declaration and payment of dividends on the Common Stock, and the
amount thereof, shall at all times be solely in the discretion of the Board of
Directors of the Corporation.
(2) Dividends on Class H Common Stock
Dividends on the Class H Common Stock may be declared and paid only to the
extent of the assets of the Corporation legally available for the payment of
dividends reduced by an amount equal to the sum of (A) the amount determined by
the GM Board to be available for the payment of dividends on the Common Stock as
of the Hughes Transactions Date plus the paid in surplus attributable to shares
of Common Stock issued after the Hughes Transactions Date; and (B) the earned
surplus of the Corporation earned since the Hughes Transactions Date exclusive
of that portion of such earned surplus attributable to the Available Separate
Consolidated Net Income of Hughes earned since the Hughes Transactions Date.
Dividends declared and paid with respect to shares of Class H Common Stock and
any adjustments to capital or surplus resulting from either (i) the repurchase
or issuance of any shares of Class H Common Stock or (ii) any other reason
deemed appropriate by the Board of Directors shall be subtracted from or added
to the amount available for the payment of dividends on Class H Common Stock.
Subject to the foregoing, the declaration and payment of dividends on the Class
H Common Stock, and the amount thereof, shall at all times be solely in the
discretion of the Board of Directors of the Corporation.
(3) Discrimination Between Common Stock and Class H Common Stock
The Board of Directors, subject to the provisions of subparagraphs (a)(1)
and (a)(2), may, in its sole discretion, declare dividends payable exclusively
to the holders of Common Stock, exclusively to the holders of Class H Common
Stock or to the holders of both such classes in equal or unequal amounts,
notwithstanding the respective amounts available for dividends to each class,
the respective voting and liquidation rights of each class, the amount of prior
dividends declared on each class or any other factor.
(4) Available Separate Consolidated Net Income of Hughes.
The "Available Separate Consolidated Net Income of Hughes" shall mean the
separate net income of Hughes Electronics Corporation, its subsidiaries and
successors after the Hughes Transactions Date ("Hughes") on a consolidated
basis, determined in accordance with generally accepted accounting principles,
without giving effect to any adjustment which would result from accounting for
the acquisition of Hughes Aircraft Company by the Corporation using the purchase
method, calculated for each quarterly accounting period and multiplied by a
fraction, the numerator of which shall be the weighted average number of shares
of Class H Common Stock outstanding during such accounting period and the
denominator of which shall initially be 399,914,626; provided, that such
fraction shall in no event be greater than one. The denominator of the foregoing
fraction shall be adjusted from time to time as deemed appropriate by the Board
of Directors of the Corporation (i) to reflect subdivisions (by stock split or
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otherwise) and combinations (by reverse stock split or otherwise) of the Class H
Common Stock and stock dividends payable in shares of Class H Common Stock to
holders of Class H Common Stock, (ii) to reflect the fair market value of
contributions of cash or property by the Corporation to Hughes or of cash or
property of the Corporation to, or for the benefit of, employees of Hughes in
connection with employee benefit plans or arrangements of the Corporation or any
of its subsidiaries, (iii) to reflect the number of shares of capital stock of
the Corporation contributed to, or for the benefit of, employees of Hughes in
connection with benefit plans or arrangements of the Corporation or any of its
subsidiaries, (iv) to reflect payments by Hughes to the Corporation of amounts
applied to the repurchase by the Corporation of shares of Class H Common Stock,
and (v) to reflect the number of shares of Class H Common Stock repurchased by
Hughes and no longer outstanding; provided, that in the case of adjustments
pursuant to clause (iv) or clause (v) above, adjustments shall be made only to
the extent that the Board of Directors of the Corporation, in its sole
discretion, shall have approved such repurchase of shares by the Corporation or
Hughes and, in the case of clause (iv) above, shall declare such payments by
Hughes to be applied to such repurchase. Any changes in the numerator or
denominator of the foregoing fraction occurring after the end of a quarterly
accounting period shall not result in an adjustment to the Available Separate
Consolidated Net Income of Hughes for such quarterly accounting period or any
prior period. For all purposes, determination of the Available Separate
Consolidated Net Income of Hughes shall be in the sole discretion of the Board
of Directors of the Corporation and shall be final and binding on all
stockholders of the Corporation.
(b) Voting Rights.
The holders of Common Stock and Class H Common Stock shall vote together as
a single class on all matters; provided, however, that (i) the holders of Common
Stock voting separately as a class shall be entitled to approve by the vote of a
majority of the shares of Common Stock then outstanding any amendment,
alteration or repeal of any of the provisions of this Certificate of
Incorporation which adversely affects the rights, powers or privileges of the
Common Stock; (ii) the holders of Class H Common Stock voting separately as a
class shall be entitled to approve by the vote of a majority of the shares of
Class H Common Stock then outstanding any amendment, alteration or repeal of any
of the provisions of this Certificate of Incorporation which adversely affects
the rights, powers or privileges of the Class H Common Stock; and (iii) any
increase in the number of authorized shares of Class H Common Stock shall be
subject to approval by both (A) the holders of a majority of the shares of
Common Stock and Class H Common Stock then outstanding, voting together as a
single class based upon their respective voting rights, and (B) the holders of a
majority of the shares of Class H Common Stock then outstanding, voting
separately as a class. Subject to adjustment pursuant to paragraph (e) hereof,
each holder of Common Stock shall be entitled to one vote, in person or by
proxy, for each share of Common Stock standing in his name on the stock transfer
books of the Corporation; and each holder of Class H Common Stock shall be
entitled to the Class H Portion (as defined below) of a vote, in person or by
proxy, for each share of Class H Common Stock standing in his name on the stock
transfer books of the Corporation. For purposes of this paragraph (b) and
paragraph (d) of Division I of this Article FOURTH, "Class H Portion" shall mean
the greater of (x) 0.50 and (y) an amount, rounded to the nearest one-tenth,
equal to (i) the average of the Closing Prices (as defined in subparagraph
(c)(5)) of a share of Class H Common Stock during the period of twenty (20)
consecutive trading days beginning on January 5, 1998 divided by (ii) the
average of the Closing Prices of a share of Common Stock during such period.
(c) Exchangeability.
(1) After December 31, 2002, the Board of Directors of the Corporation, in
its sole discretion and by a majority vote of the directors then in office, may
at any time effect a recapitalization of the Corporation by declaring that all
of the outstanding shares of Class H Common Stock shall be exchanged for fully
paid and nonassessable shares of Common Stock in accordance with the Exchange
Rate (as defined in subparagraph (c)(4)).
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(2) In the event of the sale, transfer, assignment or other disposition by
the Corporation of Substantially All of the Business of Hughes (as defined in
subparagraph (c)(3)) to a person, entity or group of which the Corporation is
not a majority owner (whether by merger, consolidation, sale of assets or stock,
liquidation, dissolution, winding up or otherwise), effective upon the
consummation of such sale, transfer, assignment or other disposition and
automatically without any action on the part of the Corporation or its Board of
Directors or on the part of the holders of shares of Class H Common Stock, the
Corporation shall be recapitalized and all outstanding shares of Class H Common
Stock shall be exchanged for fully paid and nonassessable shares of Common Stock
at the Exchange Rate.
(3) For purposes of subparagraph (c)(2) of this subparagraph (c) of Division
I of this Article FOURTH, the term "Substantially All of the Business of Hughes"
shall mean 80% or more of the business of Hughes, based on the fair market value
of the assets, both tangible and intangible, of Hughes as of the time that the
proposed transaction is approved by the Board of Directors of the Corporation.
(4) For purposes of this paragraph (c) of Division I of this Article FOURTH,
the term "Exchange Rate" applicable to the Class H Common Stock shall mean the
number of shares of Common Stock for which each share of Class H Common Stock
shall be exchangeable pursuant to subparagraphs (c)(1) and (c)(2), as the case
may be, of this paragraph (c) determined as follows: Each share of Class H
Common Stock shall be exchangeable for such number of shares of Common Stock
(calculated to the nearest five decimal places) as is determined by dividing (A)
the product resulting from multiplying (i) the Average Market Price Per Share
(as defined in subparagraph (c)(5)) of such Class H Common Stock by (ii) 1.2, by
(B) the Average Market Price Per Share of Common Stock.
(5) For purposes of this paragraph (c) of Division I of this Article FOURTH,
the "Average Market Price Per Share" of Common Stock or Class H Common Stock, as
the case may be, shall mean the average of the Closing Prices of a share of such
Common Stock or Class H Common Stock for the fifteen (15) consecutive trading
days ending one (1) trading day prior to either (A) in the case of an exchange
pursuant to subparagraph (c)(1), the date the Exchange Notice (as defined in
subparagraph (c)(8)) is mailed or (B) in the case of an exchange pursuant to
subparagraph (c)(2), the date of the public announcement by the Corporation or
one of its subsidiaries of the first to occur of the following: that the
Corporation or one of its subsidiaries (1) has entered into an agreement in
principle with respect to such transaction or (2) has entered into a definitive
agreement with respect thereto. For purposes of this paragraph (c) of Division I
of this Article FOURTH, the "Closing Price" of a share of Common Stock or Class
H Common Stock for each day shall mean the closing sales price therefor as
reported in The Wall Street Journal or, if not reported therein, as reported in
another newspaper of national circulation chosen by the Board of Directors of
the Corporation or, in case no such sale takes place on such day, the average of
the closing bid and asked prices regular way on the New York Stock Exchange, or
if the Common Stock or Class H Common Stock is not then listed or admitted to
trading on the New York Stock Exchange, on the largest principal national
securities exchange on which such stock is then listed or admitted to trading,
or if not listed or admitted to trading on any national securities exchange,
then the last reported sale prices for such shares in the over-the-counter
market, as reported on the National Association of Securities Dealers Automated
Quotation System, or, if such sale prices shall not be reported thereon, the
average of the closing bid and asked prices so reported, or, if such bid and
asked prices shall not be reported thereon, as the same shall be reported by the
National Quotation Bureau Incorporated, or, in all other cases, an appraised
market value furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors or the Finance Committee of the
Corporation for that purpose.
(6) No fraction of a share of Common Stock shall be issued in connection
with the exchange of shares of Class H Common Stock into Common Stock, but in
lieu thereof, each holder of Class H Common Stock who would otherwise be
entitled to a fractional interest of a share of Common Stock shall, upon
surrender of such holder's certificate or certificates (if any) representing
shares of Class H Common Stock, be entitled to receive a cash payment (without
interest) (the "Fractional Payment") equal to the product resulting from
multiplying (A) the fraction of a share of Common Stock to which such holder
would otherwise have been entitled by (B) the Average Market Price Per Share of
the Common Stock.
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(7) No adjustments in respect of dividends shall be made upon the exchange
of any shares of Class H Common Stock; provided, however, that if the Exchange
Date (as defined in subparagraph (c)(8))with respect to Class H Common Stock
shall be subsequent to the record date for the payment of a dividend or other
distribution thereon or with respect thereto but prior to the payment or
distribution thereof, the registered holders of such shares at the close of
business on such record date shall be entitled to receive the dividend or other
distribution payable on such shares on the date set for payment of such dividend
or other distribution notwithstanding the exchange of such shares or the
Corporation's default in payment of the dividend or distribution due on such
date.
(8) At such time or times as the Corporation exercises its right to cause
all of the shares of Class H Common Stock to be exchanged for Common Stock in
accordance with subparagraph (c)(1) of this paragraph (c) of Division I of this
Article FOURTH and at such time as the Corporation causes the exchange of such
Class H Common Stock for Common Stock as a result of a sale, transfer,
assignment or other disposition of the type referred to in subparagraph (c)(2)
of this paragraph (c), the Corporation shall give notice of such exchange to the
holders of Class H Common Stock whose shares are to be exchanged, by mailing by
first-class mail a notice of such exchange (the "Exchange Notice"), in the case
of an exchange in accordance with subparagraph (c)(1) not less than thirty (30)
nor more than sixty (60) days prior to the date fixed for such exchange (the
"Exchange Date"), and in the case of an exchange in accordance with subparagraph
(c)(2) as soon as practicable before or after the Exchange Date, in either case
to their last addresses as they shall appear upon the Corporation's books. Each
such Exchange Notice shall specify the Exchange Date and the Exchange Rate
applicable to such exchange, and shall state that issuance of certificates
representing, or other evidence of ownership of, Common Stock to be received
upon exchange of shares of Class H Common Stock shall be, if such shares of
Class H Common Stock are held in certificated form, upon surrender of
certificates representing such shares of Class H Common Stock.
(9) Before any holder of shares of Class H Common Stock who holds such
shares in certificated form shall be entitled to receive certificates
representing, or other evidence of ownership of, shares of Common Stock for
which such shares of Class H Common Stock were exchanged, such holder shall
surrender at such office as the Corporation shall specify certificates for such
shares of Class H Common Stock duly endorsed to the Corporation or in blank or
accompanied by proper instruments of transfer to the Corporation or in blank,
unless the Corporation shall waive such requirement. The Corporation will, as
soon as practicable after such surrender of any such certificates representing
shares of Class H Common Stock, issue and deliver at the office of the transfer
agent representing the Common Stock to the person for whose account such shares
of Class H Common Stock were so surrendered, or to his nominee or nominees,
certificates representing, or other evidence of ownership of, the number of
whole shares of Common Stock to which such holder shall be entitled as
aforesaid, together with the Fractional Payment, if any.
(10) From and after the Exchange Date, all rights of a holder of shares of
Class H Common Stock which were exchanged for shares of Common Stock shall cease
except for the right to receive certificates representing, or other evidence of
ownership of, shares of Common Stock together with a Fractional Payment, if any,
as contemplated by subparagraphs (c)(6) and (c)(9) of this paragraph (c) and
rights to dividends as provided in subparagraph (c)(7); provided, however, that
no holder of a certificate which immediately prior to the Exchange Date
represented shares of Class H Common Stock shall be entitled to receive any of
the foregoing until surrender of such certificate. Upon such surrender, there
shall be paid to the holder the amount of any dividends or other distributions
(without interest) which theretofore became payable with respect to a record
date after the Exchange Date, but which were not paid by reason of the
foregoing, with respect to the number of whole shares of Common Stock
represented by the certificate or certificates issued upon such surrender. From
and after the Exchange Date applicable to the Class H Common Stock, the
Corporation shall, however, be entitled to treat the certificates for Class H
Common Stock which have not yet been surrendered for exchange as evidencing the
ownership of the number of whole shares of Common Stock for which the shares of
Class H Common Stock represented by such certificates shall have been exchanged,
notwithstanding the failure to surrender such certificates.
- 6 -
(11) If any shares of Common Stock are to be issued in a name other than
that in which the shares of Class H Common Stock exchanged therefor are
registered, it shall be a condition of such issuance that the person requesting
such issuance shall pay any transfer or other taxes required by reason of the
issuance of such shares of Common Stock in a name other than that of the record
holder of the shares of Class H Common Stock exchanged therefor, or shall
establish to the satisfaction of the Corporation or its agent that such tax has
been paid or is not applicable. Notwithstanding anything to the contrary in this
paragraph (c), the Corporation shall not be liable to a holder of shares of
Class H Common Stock for any shares of Common Stock or dividends or
distributions thereon delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(12) At such time as any Exchange Notice is delivered with respect to any
shares of Class H Common Stock, or at the time of the Exchange Date, if earlier,
the Corporation shall have reserved and kept available, solely for the purpose
of issuance upon exchange of the outstanding shares of Class H Common Stock,
such number of shares of Common Stock as shall be issuable upon the exchange of
the number of shares of Class H Common Stock specified or to be specified in the
Exchange Notice, provided, that nothing contained herein shall be construed to
preclude the Corporation from satisfying its obligations in respect of the
exchange of the outstanding shares of Class H Common Stock by delivery of
purchased shares of Common Stock which are held in the treasury of the
Corporation.
(d) Liquidation Rights.
In the event of the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after there shall have been paid
or set apart for the holders of Preferred Stock and Preference Stock the full
preferential amounts to which they are entitled, the holders of Common Stock and
Class H Common Stock shall be entitled to receive the assets of the Corporation
remaining for distribution to its stockholders, on a per share basis in
proportion to the respective per share liquidation units of such classes.
Subject to adjustment pursuant to paragraph (e) hereof, each share of Common
Stock and Class H Common Stock shall be entitled to liquidation units of one
(1.0) and the Class H Portion, respectively.
(e) Subdivision or Combination.
(1) If after the Hughes Transactions Date, the Corporation shall in any
manner subdivide (by stock split or otherwise) or combine (by reverse stock
split or otherwise) the outstanding shares of the Common Stock or Class H Common
Stock, or pay a stock dividend in shares of any class to holders of that class,
the per share voting rights specified in paragraph (b) and the per share
liquidation units specified in paragraph (d) of Class H Common Stock relative to
Common Stock shall be appropriately adjusted so as to avoid any dilution in the
aggregate voting or liquidation rights of any class. Distribution by the
Corporation of shares of any class of its common stock as a dividend on any
other class of its common stock shall not require an adjustment pursuant to this
paragraph (e)(1).
(2) If after the Hughes Transactions Date, the Corporation shall distribute
shares of Class H Common Stock as a dividend (the "Dividend") on Common Stock,
then the per share liquidation rights of the classes of common stock set forth
in paragraph (d) above, as they may have been previously adjusted, shall be
adjusted so that:
(A) each holder of shares of Class H Common Stock shall be entitled to,
with respect to such holder's interest in such Class H Common Stock, the
same percentage of the aggregate liquidation units of all shares of the
Corporation's common stock immediately after the Dividend as such holder was
entitled to, with respect to such holder's interest in such Class H Common
Stock immediately prior to the Dividend; and
- 7 -
(B) each holder of shares of Common Stock shall be entitled to, with
respect to such holder's interest in Common Stock and all shares of Class H
Common Stock issued with respect to such holder's shares of Common Stock,
the same percentage of the aggregate liquidation units of all shares of the
Corporation's common stock immediately after the Dividend as such holder was
entitled to with respect to such holder's interest in Common Stock
immediately prior to the Dividend; provided, that any adjustment pursuant to
this subparagraph (e)(2)(B) shall be made to the liquidation units of Common
Stock.
In no event will any adjustments be made pursuant to this subparagraph
(e)(2) if the adjustment called for herein would reduce the liquidation units of
any class of common stock to less than zero.
(3) The determination of any adjustment required under this paragraph (e)
shall be made by the Corporation's Board of Directors; any such determination
shall be binding and conclusive upon all holders of shares of all classes of the
Corporation's common stock. Following any such determination, the Secretary of
the Corporation shall maintain a record of any such adjustment.
DIVISION II:
PREFERRED STOCK.
A statement of the relative rights of the holders of Preferred Stock and a
statement of the limits of variation between each series of Preferred Stock as
to rate of dividends and price of redemption and a statement of the voting
powers and the designations, powers, privileges and rights, and the
qualifications, limits or restrictions thereof of the various series thereof,
except so far as the Board of Directors is expressly authorized to fix the same
by resolution or resolutions for the various series of the Preferred Stock, are
as follows:
Preferred Stock of the Corporation may be issued in various series as may be
determined from time to time by the Board of Directors, each such series to be
distinctly designated. All shares of any one series of Preferred Stock shall be
alike in every particular, and all series shall rank equally and be identical in
all respects except as to the dividend rate and the amount payable upon the
exercise of the right to redeem.
The dividend on the Preferred Stock of each series shall be such rate as may
be fixed by the Board of Directors in the resolution or resolutions providing
for the issuance of the Preferred Stock of such series, and as shall be stated
on the face or back of the certificates of stock therefor.
The amount payable on the exercise of the right to redeem Preferred Stock of
each series shall be an amount as may be fixed by the Board of Directors in the
resolution or resolutions providing for the issuance of the Preferred Stock of
such series, and as shall be stated on the face or back of the certificates of
stock therefor.
All other provisions herein set forth in respect of the Preferred Stock of
the Corporation shall apply to all the Preferred Stock of the Corporation,
irrespective of any variations between the Preferred Stock of the different
series.
The holders of the Preferred Stock shall be entitled to receive cumulative
dividends, when and as declared by the Board of Directors, at the rates fixed
for the respective series in the Certificate of Incorporation or in the
resolution or resolutions of the Board of Directors providing for the issuance
of the respective series, and no more, payable quarterly on the dates to be
fixed by the By-Laws. The periods between such dates commencing on such dates
are herein designated as "dividend periods." Dividends on all shares of any one
series shall commence to accrue and be cumulative from the first day of the
current dividend period within which shares of such series are first issued, but
in the event of the issue of additional shares of such series subsequent to the
date of the first issue of said shares of such series, all dividends paid on the
shares of such series prior to the issue of such additional shares and all
dividends declared payable to holders of record of shares of such series of a
date prior to such issue shall be deemed to have been paid in respect of the
additional shares so issued. Such dividends on the Preferred Stock shall be in
preference and priority to any payment on any other class of stock of the
Corporation.
- 8 -
The dividends on the Preferred Stock shall be cumulative and shall be
payable before any dividend on the Common Stock or Class H Common Stock or any
series of the Preference Stock shall be paid or set apart so that if in any year
dividends at the rates determined for the respective series of the Preferred
Stock shall not be paid thereon, the deficiency shall be payable before any
dividend shall be paid upon or set apart for the Common Stock or Class H Common
Stock or any series of the Preference Stock. Dividends shall not be declared and
paid on the shares of Preferred Stock of any one series for any dividend period
unless dividends have been or are contemporaneously paid or declared and set
apart for payment thereof on the shares of Preferred Stock of all series, for
all the dividend periods terminating on the same or an earlier date.
Whenever all cumulative dividends on the Preferred Stock outstanding shall
have been paid and a sum sufficient for the payment of the next ensuing
quarterly dividend on the Preferred Stock outstanding shall have been set aside
from the surplus or net profits, the Board of Directors may declare dividends on
the Common Stock or Class H Common Stock or any series of the Preference Stock,
payable then or thereafter, out of any remaining surplus or net profits, and no
holders of any shares of any series of Preferred Stock, as such, shall be
entitled to share therein.
At the option of the Board of Directors, the Preferred Stock shall be
subject to redemption at the amounts fixed for the respective series in the
Certificate of Incorporation or in the resolution or resolutions of the Board of
Directors providing for the issuance of the respective series, together, in the
case of each class or series, with accrued dividends on the shares to be
redeemed, on any dividend paying date in such manner as the Board of Directors
may determine.
The holders of the Preferred Stock shall not have any voting power
whatsoever, except upon the question of selling, conveying, transferring or
otherwise disposing of the property and assets of the Corporation as an entirety
and except as otherwise required by law.
DIVISION III:
PREFERENCE STOCK.
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article FOURTH, to provide for the issuance of
Preference Stock from time to time in one or more series of any number of
shares, with a distinctive serial designation for each series, provided that the
aggregate number of shares issued and not canceled of any and all such series
shall not exceed the total number of shares of Preference Stock authorized by
this Article FOURTH, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issue of such Preference Stock from
time to time adopted by the Board of Directors. Subject to said limitations, and
provided that each series of Preference Stock shall rank junior to the Preferred
Stock with respect to the payment of dividends and distributions in liquidation,
each series of Preference Stock (a) may have such voting powers, full or
limited, or may be without voting powers; (b) may be subject to redemption at
such time or times and at such prices; (c) may be entitled to receive dividends
(which may be cumulative or noncumulative) at such rate or rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or series of stock; (d)
may have such rights upon the dissolution of, or upon any distribution of the
assets of, the Corporation; (e) may be made convertible into, or exchangeable
for, shares of any other class or classes of or any other series of the same or
any other class or classes of stock of the Corporation or any other issuer, at
such price or prices or at such rates of exchange, and with such adjustments;
(f) may be entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of shares of such series in such amount or amounts; (g)
may be entitled to the benefit of conditions and restrictions upon the creation
of indebtedness of the Corporation or any subsidiary, upon the issue of any
additional stock (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation; and (h) may have such
other relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof; all as shall be stated in said resolution
or resolutions providing for the issue of such series of Preference Stock.
- 9 -
Shares of any series of Preference Stock which have been redeemed (whether
through the operation of a sinking fund or otherwise) or which, if convertible
or exchangeable, have been converted into or exchanged for shares of stock of
any other class or classes shall have the status of authorized and unissued
shares of Preference Stock of the same series and may be reissued as a part of
the series of which they were originally a part or may be reclassified and
reissued as part of a new series of Preference Stock to be created by resolution
or resolutions of the Board of Directors or as part of any other series of
Preference Stock, all subject to the conditions or restrictions on issuance set
forth in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preference Stock.
DIVISION IV:
MISCELLANEOUS.
From time to time, the Preferred Stock, the Preference Stock, the Common
Stock and the Class H Common Stock may be increased or decreased according to
law, and may be issued in such amounts and proportions as shall be determined by
the Board of Directors, and as may be permitted by law.
In the event of any liquidation or dissolution or winding up, whether
voluntary or otherwise, of the Corporation, the holders of the Preferred Stock
shall be entitled to be paid the redemption price of each series in full, as
aforesaid, out of the assets whether capital or surplus, and, in every case, the
unpaid dividends accrued on such shares, whether or not earned or declared,
before any distribution of the assets to be distributed shall be made to the
holders of Common Stock or Class H Common Stock or any series of the Preference
Stock; but the holders of such shares shall be entitled to no further
participation in such distribution. If the assets distributable on such
liquidation, dissolution or winding up shall be insufficient to permit the
payment to the holders of the Preferred Stock of the full amount of the
redemption price of each series in full as aforesaid and accrued dividends as
aforesaid, the said assets shall be distributed pro rata among the holders of
the respective series of the Preferred Stock. After all payments are made as
aforesaid, any required payments shall be made with respect to the Preference
Stock, if any, outstanding, and the remaining assets and funds shall be divided
among and paid to the holders of Common Stock and Class H Common Stock pro rata
in proportion to the respective per share liquidation units of such classes. The
merger or consolidation of the Corporation into or with any other corporation
shall not be or be deemed to be a distribution of assets or a dissolution,
liquidation or winding up for the purposes of this paragraph.
Any Preferred Stock, Preference Stock, Common Stock or Class H Common Stock,
authorized hereunder or under any amendment hereof, in the discretion of the
Board of Directors, may be issued, except as herein otherwise provided, in
payment for property or services, or as bonuses to employees of the Corporation
or employees of subsidiary companies, or for other assets or securities
including cash, necessary or desirable, in the judgment of the Board of
Directors, to be purchased or acquired from time to time for the Corporation, or
for any other lawful purpose of the Corporation.
If it seems desirable so to do, the Board of Directors may from time to time
issue scrip for fractional shares of stock. Such scrip shall not confer upon the
holder any right to dividends or any voting or other rights of a stockholder of
the Corporation, but the Corporation shall from time to time, within such time
as the Board of Directors may determine or without limit of time if the Board of
Directors so determines, issue one or more whole shares of stock upon the
surrender of scrip for fractional shares aggregating the number of whole shares
issuable in respect of the scrip so surrendered, provided that the scrip so
surrendered shall be properly endorsed for transfer if in registered form.
ARTICLE FIFTH
The Corporation is to have perpetual existence.
- 10 -
ARTICLE SIXTH
The private property of the stockholders shall not be subject to the payment of
corporate debts to any extent whatever.
ARTICLE SEVENTH
The number of Directors of the Corporation, not less than three, shall be fixed
from time to time by the By-Laws and the number may be altered as therein
provided. In case of any increase in the number of Directors, the additional
Directors shall be elected as provided by the By-Laws, by the Directors, or by
the stockholders at an annual or special meeting. In case of any vacancy in the
Board of Directors, the remaining Directors, by affirmative vote of a majority
thereof, may elect a successor to hold office for the unexpired portion of the
term of the Director whose place is vacant and until his successor shall be duly
elected and qualified.
No Director shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a Director, except for
liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174, or any successor provision thereto, of the Delaware General
Corporation Law, or (iv) for any transaction from which the Director derived an
improper personal benefit.
In furtherance, and not in limitation of the powers conferred by law, the Board
of Directors are expressly authorized:
(a) To make, alter, amend and repeal the By-Laws of the Corporation.
(b) To remove at any time any officer elected or appointed by the Board of
Directors but only by the affirmative vote of a majority of the whole Board of
Directors. Any other officer or employee of the Corporation may be removed at
any time by a vote of the Board of Directors, or by any committee or superior
officer upon whom such power of removal may be conferred by the By-Laws or by
the vote of the Board of Directors.
(c) To designate, by resolution passed by a majority of the whole Board, two or
more of their number to constitute an executive committee, who, to the extent
provided in said resolution or in the By-Laws of the Corporation, shall have and
exercise the powers of the Board of Directors in the management of the business
and affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it. A majority of
such committee shall constitute a quorum for the transaction of business.
To designate any other standing committees by the affirmative vote of a majority
of the whole Board, and such standing committees shall have and may exercise
such powers as shall be conferred or authorized by the By-Laws, including the
power to cause the seal of the Corporation to be affixed to any papers which may
require it.
(c-1) Every right of action by or on behalf of the Corporation or by any
stockholder against any past, present or future member of the Board of
Directors, officer or employee of the Corporation arising out of or in
connection with any bonus, stock option, performance achievement or other
incentive plan at any time approved by the stockholders of the Corporation,
irrespective of the place where action may be brought and irrespective of the
place of residence of any such Director, officer or employee, shall cease and be
barred by the expiration of three years from whichever is the later of (a) the
date of the act or omission in respect of which such right of action arises or
(b) the first date upon which there has been made generally available to
stockholders an annual report of the Corporation and a proxy statement for the
annual meeting of stockholders following the issuance of such annual report,
which annual report and proxy statement alone or
- 11 -
together set forth, for the related period, the amount of any credit to a
reserve for the purpose of any such plan, and the aggregate bonus, performance
achievement or other awards, and the aggregate options or other grants, made
under any such plan; and every right of action by any employee (past, present or
future) against the Corporation arising out of or in connection with any such
plan shall, irrespective of the place where action may be brought, cease and be
barred by the expiration of three years from the date of the act or omission in
respect of which such right of action arises.
(d) From time to time to fix and to vary the sum to be reserved over and above
its capital stock paid in before declaring any dividends; to direct and
determine the use and disposition of any surplus or net profits over and above
the capital stock paid in; to fix the time of declaring and paying any dividend,
and, unless otherwise provided in this Certificate or in the By-Laws, to
determine the amount of any dividend. All sums reserved as working capital or
otherwise may be applied from time to time to the acquisition or purchase of its
bonds or other obligations or shares of its own capital stock or other property
to such extent and in such manner and upon such terms as the Board of Directors
shall deem expedient and neither the stocks, bonds, or other property so
acquired shall be regarded as accumulated profits for the purpose of declaring
or paying dividends unless otherwise determined by the Board of Directors, but
shares of such capital stock so purchased or acquired may be resold, unless such
shares shall have been retired for the purpose of decreasing the Corporation's
capital stock as provided by law.
(e) From time to time to determine whether and to what extent, and at what time
and places and under what conditions and regulations the accounts and books of
the Corporation (other than the stock ledger), or any of them, shall be open to
the inspection of the stockholders; and no stockholder shall have any right to
inspect any account or book or document of Corporation, except as conferred by
statute or authorized by the Board of Directors or by a resolution of the
stockholders.
(f) With the written assent of the holders of two-thirds of its issued and
outstanding stock of all classes, without a meeting, or pursuant to the
affirmative vote in person or by proxy of the holders of two-thirds of its
issued and outstanding stock of all classes, at any meeting, either annual or
special, called as provided in the By-Laws, the Board of Directors may sell,
convey, assign, transfer or otherwise dispose of, any part or all of the
property, assets, rights and privileges of the Corporation as an entirety, for
the stock, bonds, obligations or other securities of another corporation of this
or of any other State, Territory, Colony or Foreign Country, or for cash, or
partly cash, credit or property, or for such other consideration as the Board of
Directors, in their absolute and uncontrolled discretion, may determine.
(g) The Corporation may by its By-Laws confer upon the Directors powers and
authorities additional to the foregoing and to those expressly conferred upon
them by statute.
ARTICLE EIGHTH
Both the stockholders and the Directors of the Corporation may hold their
meetings and the Corporation may have an office or offices in such place or
places outside of the State of Delaware as the By-Laws may provide, and the
Corporation may keep its books outside of the State of Delaware except as
otherwise provided by law.
ARTICLE NINTH
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in the manner, now or
hereafter prescribed by statute, and all rights conferred on stockholders herein
are granted subject to this reservation.
- 12 -
EXHIBIT 3(ii)
G E N E R A L M O T O R S C O R P O R A T I O N
--------------------------------------------------------
BY-LAWS
As Amended to
December 18, 1997
<PAGE>
GENERAL MOTORS CORPORATION
BY-LAWS
INDEX
Page
ARTICLE I -- MEETINGS OF STOCKHOLDERS
1.1. Annual.........................................................1
1.2. Special........................................................1
1.3. Notice of Meetings.............................................1
1.4. List of Stockholders Entitled to Vote..........................1
1.5. Quorum.........................................................2
1.6. Organization...................................................2
1.7. Voting; Proxies................................................2
1.8. Fixing Date for Determination of Stockholders of Record........2
1.9. Adjournments...................................................3
1.10. Judges.........................................................3
ARTICLE II -- BOARD OF DIRECTORS
2.1. Responsibility and Number......................................3
2.2. Election; Resignation; Vacancies...............................3
2.3. Regular Meetings...............................................4
2.4. Special Meetings...............................................4
2.5. Quorum; Vote Required for Action ..............................4
2.6. Organization...................................................4
2.7. Transactions with Corporation..................................5
2.8. Ratification...................................................5
2.9. Informal Action by Directors...................................5
2.10. Telephonic Meetings Permitted..................................6
2.11. Notice of Stockholder Nomination and Stockholder Business......6
2.12. Independent Directors..........................................7
ARTICLE III -- COMMITTEES
3.1. Committees of the Board of Directors...........................8
3.2. Election and Vacancies.........................................8
3.3. Procedure; Quorum..............................................8
3.4. Executive Committee............................................9
3.5. Investment Funds Committee.....................................9
3.6. Audit Committee................................................9
3.7. Executive Compensation Committee...............................9
3.8. Public Policy Committee........................................10
3.9. Committee on Director Affairs..................................10
3.10. Capital Stock Committee.......................................11
i
<PAGE>
Page
ARTICLE IV -- OFFICERS
4.1. Elected Officers ..............................................11
4.2. Chief Executive Officer........................................11
4.3. President......................................................12
4.4. Treasurer......................................................12
4.5. Secretary......................................................12
4.6. Comptroller....................................................12
4.7. General Counsel................................................12
4.8. General Auditor................................................12
4.9. Chief Tax Officer..............................................13
4.10. Subordinate Officers...........................................13
4.11. Resignation, Removal, Suspension and Vacancies.................13
ARTICLE V -- INDEMNIFICATION
5.1. Right to Indemnification of Directors and Officers ............14
5.2. Advancement of Expenses of Directors and Officers..............14
5.3. Claims by Officers or Directors................................14
5.4. Indemnification of Employees...................................15
5.5. Advancement of Expenses of Employees...........................15
5.6. Non-Exclusivity of Rights......................................15
5.7. Other Indemnification..........................................15
5.8. Insurance......................................................15
5.9. Amendment or Repeal............................................16
ARTICLE VI -- MISCELLANEOUS
6.1. Offices........................................................16
6.2. Stock Certificates.............................................16
6.3. Seal...........................................................16
6.4. Dividends on Preferred Stock...................................17
6.5. Fiscal Year....................................................17
6.6. Annual Report..................................................17
6.7. Notice.........................................................17
6.8. Waiver of Notice...............................................17
6.9. Voting of Stocks Owned by the Corporation......................17
6.10. Form of Records................................................18
6.11. Amendment of By-Laws...........................................18
6.12. Anti-Greenmail.................................................18
6.13. Gender Pronouns................................................19
ii
<PAGE>
Page
DEFINITION OF CERTAIN TERMS USED IN AND GUIDELINES
FOR THE APPLICATION OF BY-LAW 2.12 OF GENERAL MOTORS
CORPORATION..........................................................i
SECURITIES ACT AND EXCHANGE ACT PARAGRAPH 2 OF INSTRUCTIONS
TO PARAGRAPH (b) OF ITEM 404 OF REGULATION S-K AS IN EFFECT
ON JANUARY 7, 1991 (REFERRED TO IN PARAGRAPH (i) OF GUIDELINES
FOR APPLICATION OF BY-LAW 2.12 OF GENERAL MOTORS CORPORATION).......iv
DEFINITION OF CERTAIN TERMS USED IN BY-LAW 6.12......................v
iii
<PAGE>
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 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.
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1.9. Adjournments.
Any meeting of stockholders, annual or special, may adjourn from time to time to
reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
1.10. Judges.
All votes by ballot at any meeting of stockholders shall be conducted by two
judges appointed for the purpose, either by the directors or by the chairman of
the meeting. The judges shall decide upon the qualifications of voters, count
the votes and declare the result.
ARTICLE II
BOARD OF DIRECTORS
2.1. Responsibility and Number.
The business and affairs of the corporation shall be managed by or under the
direction of a board of directors. The number of directors shall be determined
from time to time by resolution of the board of directors, but the total number
of directors shall not be less than twelve or more than twenty.
2.2. Election; Resignation; Vacancies.
At each annual meeting of stockholders, the stockholders shall elect directors
each of whom shall hold office for a term commencing on the date of the annual
meeting of stockholders, or such later date as shall be determined by the board
of directors, and ending on the next annual meeting of stockholders, or until
his successor is elected and qualified. Any director may resign at any time upon
written notice to the chairman of the board or to the secretary. 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.
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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.
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.
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2.7. Transactions with Corporation.
No contract or transaction between the corporation and one or more of its
directors, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose: (1) if the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the board of directors or the committee, and the board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) if the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) if the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the board of directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the board of directors or of a committee which authorizes
the contract or transaction.
2.8. Ratification.
Any transaction questioned in any stockholders' derivative suit on the ground of
lack of authority, defective or irregular execution, adverse interest of
director, officer or stockholder, non-disclosure, miscomputation, or the
application of improper principles or practices of accounting may be ratified
before or after judgment, by the board of directors or by the stockholders in
case less than a quorum of directors are qualified; and, if so ratified, shall
have the same force and effect as if the questioned transaction had been
originally duly authorized, and said ratification shall be binding upon the
corporation and its stockholders and shall constitute a bar to any claim or
execution of any judgment in respect of such questioned transaction.
2.9. Informal Action by Directors.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, any action required or permitted to be taken at any meeting of the
board of directors, or of any committee thereof, may be taken without a meeting
if all members of the board or such committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
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2.10. Telephonic Meetings Permitted.
Members of the board of directors, or any committee designated by the board, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this by-law shall constitute presence in person at such meeting.
2.11. Notice of Stockholder Nomination and Stockholder Business.
At a meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. Nominations for the election of
directors may be made by the board of directors or by any stockholder entitled
to vote for the election of directors. Other matters to be properly brought
before the meeting must be: (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the board of directors,
including matters covered by rule 14a-8 of the Securities and Exchange
Commission; (b) otherwise properly brought before the meeting by or at the
direction of the board of directors; or (c) otherwise properly brought before
the meeting by a stockholder.
A notice of the intent of a stockholder to make a nomination or to bring any
other matter before the meeting shall be made in writing and received by the
secretary of the corporation not more than 180 days and not less than 120 days
in advance of the annual meeting or, in the event of a special meeting of
stockholders, such notice shall be received by the secretary of the corporation
not later than the close of the fifteenth day following the day on which notice
of the meeting is first mailed to stockholders.
Every such notice by a stockholder shall set forth:
(a) the name and residence address of the stockholder of the corporation who
intends to make a nomination or bring up any other matter;
(b) a representation that the stockholder is a holder of the corporation's
voting stock and intends to appear in person or by proxy at the meeting to make
the nomination or bring up the matter specified in the notice;
(c) with respect to notice of an intent to make a nomination, a description of
all arrangements or understandings among the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder;
(d) with respect to notice of an intent to make a nomination, such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated
by the board of directors of the corporation; and
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(e) with respect to notice of an intent to bring up any other matter, a
description of the matter, and any material interest of the stockholder in the
matter.
Notice of intent to make a nomination shall be accompanied by the written
consent of each nominee to serve as director of the corporation if so elected.
At the meeting of stockholders, the chairman shall declare out of order and
disregard any nomination or other matter not presented in accordance with this
section.
2.12. Independent Directors.
(a) Majority of Board's Nominees in Annual Proxy Statement for Election to Board
of Directors to be Independent. A majority of the individuals to constitute the
nominees of the board of directors for the election of whom the board will
solicit proxies from the stockholders for use at the corporation's annual
meeting shall consist of individuals who, on the date of their selection as the
nominees of the board of directors, would be Independent Directors.
(b) Directors Elected by Board of Directors. In the event the board of directors
elects directors between annual meetings of stockholders, the number of such
directors who qualify as Independent Directors on the date of their nomination
shall be such that the majority of all directors holding office immediately
thereafter shall have been Independent Directors on the date of the first of
their nomination or selection as nominees of the board of directors.
(c) Definition of Independent Director. For purposes of this by-law, the term
"Independent Director" shall mean a director who: (i) is not and has not been
employed by the corporation or its subsidiaries in an executive capacity within
the five years immediately prior to the annual meeting at which the nominees of
the board of directors will be voted upon; (ii) is not (and is not affiliated
with a company or a firm that is) a significant advisor or consultant to the
corporation or its subsidiaries; (iii) is not affiliated with a significant
customer or supplier of the corporation or its subsidiaries; (iv) does not have
significant personal services contract(s) with the corporation or its
subsidiaries; (v) is not affiliated with a tax-exempt entity that receives
significant contributions from the corporation or its subsidiaries; and (vi) is
not a spouse, parent, sibling or child of any person described by (i) through
(v).
(d) Interpretation and Application of This By-Law. The board of directors shall
have the exclusive right and power to interpret and apply the provisions of this
by-law, including, without limitation, the adoption of written definitions of
terms used in and guidelines for the application of this by-law (any such
definitions and guidelines shall be filed with the Secretary, and such
definitions and guidelines as may prevail shall be made available to any
stockholder upon written request); any such definitions or guidelines and any
other interpretation or application of the provisions of this by-law made in
good faith shall be binding and conclusive upon all holders of GM Equity
Securities, provided that, in the case of any interpretation or application of
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.
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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 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.
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3.4. Executive Committee.
The members of the executive committee shall be the chairman 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.
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.
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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.
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.
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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 matters referred to its attention, but rather to oversee the process
by which decisions concerning such matters are made. The committee shall have
and may exercise such other powers, authority and responsibilities as may be
determined by the board of directors.
ARTICLE IV
OFFICERS
4.1. Elected Officers.
The officers of the corporation shall be elected by the board of directors.
There shall be a chief executive officer, a president, one or more executive
vice presidents, one or more vice presidents, a secretary, a treasurer, a
comptroller, a general counsel, a general auditor and a chief tax officer. The
chief executive officer and the president shall be members of the board of
directors and shall have the other powers, authority and responsibilities
provided by these by-laws. The officers, other than the chief executive officer
and the president, shall each have, in addition to the powers, authority and
responsibilities of those officers otherwise provided by the by-laws, such
powers, authority and responsibilities as the board of directors or the chief
executive officer may determine. The board of directors may also elect persons
to hold such other offices as the board of directors shall determine, including
one or more vice chairmen of the board. A person may hold any number of offices.
Elected officers shall hold their offices at the pleasure of the board of
directors, or until their earlier resignation.
4.2. Chief Executive Officer.
The chief executive officer shall have the general executive responsibility for
the conduct of the business and affairs of the corporation. If the chairman so
designates or is absent, the chief executive officer shall preside at meetings
of the stockholders. He shall exercise such other powers, authority and
responsibilities as the board of directors may determine.
In the absence of or during the physical disability of the chief executive
officer, the board of directors shall designate an officer who shall have and
exercise the powers, authority and responsibilities of the chief executive
officer.
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4.3. President.
The president shall have and exercise such powers, authority and
responsibilities as the board of directors may determine.
4.4. Treasurer.
The treasurer shall have custody of all funds and securities of the corporation
and shall perform all acts incident to the position of treasurer. He shall
render such accounts and reports as may be required by the board of directors.
The records, books and accounts of the office of the treasurer shall, during the
usual hours for business at the office of the treasurer, be open to the
examination of any director.
4.5. Secretary.
The secretary shall keep the minutes of all meetings of stockholders and
directors and of such committees of the board of directors as to which he may be
so directed. He shall give all required notices and shall have charge of such
books and papers as the board of directors may require. He shall submit such
reports to the board of directors or to any of the committees of the board or
committees of the corporation as the board of directors or any such committee
may require. Any action or duty required to be performed by the secretary may be
performed by an assistant secretary.
4.6. Comptroller.
The comptroller shall be in charge of the accounts of the corporation and shall
perform all acts incident to the position of comptroller. He shall submit such
reports and records to the board of directors or to any of the committees of the
board or committees of the corporation as the board of directors or any such
committee may require.
4.7. General Counsel.
The board of directors shall elect a general counsel who shall be the chief
legal officer of the corporation. He shall have general control of all matters
of legal import concerning the corporation and shall have such other powers,
authority and responsibilities as may be determined by the board of directors or
the chief executive officer.
4.8. General Auditor.
The general auditor shall have such powers, authority and responsibilities as
are incident to the position of general auditor in the performance of an
independent audit activity of the corporation and shall have direct access to
the audit committee.
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4.9. Chief Tax Officer.
The chief tax officer shall have responsibility for all tax matters involving
the corporation, with authority to sign and to delegate to others authority to
sign all returns, reports, agreements and documents involving the administration
of the corporation's tax affairs.
4.10. Subordinate Officers.
The board of directors may from time to time appoint one or more assistant
secretaries, assistant treasurers, assistant comptrollers, and such other
subordinate officers as the board of directors may deem advisable. Such
subordinate officers shall have such powers, authority and responsibilities as
the board of directors may from time to time determine. The board of directors
may grant to any committee of the board or the chief executive officer the power
and authority to appoint subordinate officers and to prescribe their respective
terms of office, powers, authority and responsibilities. Each subordinate
officer shall hold his position at the pleasure of the board of directors, the
committee of the board appointing him, the chief executive officer and any other
officer to whom such subordinate officer reports.
In the interval between annual organizational meetings of the board of
directors, the chief executive officer shall have the power and authority to
appoint such subordinate officers. Such subordinate officers shall serve until
the first meeting of the board of directors immediately following the annual
meeting of stockholders.
4.11. Resignation, Removal, Suspension and Vacancies.
Any officer may resign at any time by giving written notice to the chief
executive officer, the president or the secretary. Unless stated in the notice
of resignation, the acceptance thereof shall not be necessary to make it
effective. It shall take effect at the time specified therein or, in the absence
of such specification, it shall take effect upon the receipt thereof.
Any officer elected by the board of directors may be suspended or removed at any
time by the affirmative vote of a majority of the whole board. Any subordinate
officer of the corporation appointed by the board of directors or a committee of
the board, or the chief executive officer, may be suspended or removed at any
time by a majority vote of a quorum of the board of directors or committee
appointing such subordinate officer, or by the chief executive officer or any
other officer to whom such subordinate officer reports.
The chief executive officer may suspend the powers, authority, responsibilities
and compensation of any elected officer or appointed subordinate officer for a
period of time sufficient to permit the board or the appropriate committee of
the board a reasonable opportunity to consider and act upon a resolution
relating to the reinstatement, further suspension or removal of such person.
As appropriate, the board of directors, a committee of the board, and/or the
chief executive officer may fill any vacancy created by the resignation, death,
retirement or removal of an officer in the same manner as provided for the
election or appointment of such person.
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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 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.
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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.
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.
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6.4. Dividends on Preferred Stock.
All dividends declared upon the preferred stock shall be payable quarterly upon
the first day of February, May, August and November in each year, but if that is
a legal holiday, then on the next day not a legal holiday.
6.5. Fiscal Year.
The fiscal year of the corporation shall begin on January 1st and terminate on
December 31st in each year.
6.6. Annual Report.
At least fifteen days in advance of the annual meeting of stockholders, the
board of directors shall publish and submit to the stockholders consolidated
financial statements for the previous fiscal year. The board of directors shall
also publish consolidated financial statements for each of the first three
quarters of each fiscal year.
6.7. Notice.
Any notice required to be given by these by-laws may be given personally or in
writing by delivery to the United States postal system in a postpaid envelope
directed to such address as appears in the records of the corporation, or, in
default of other address, to the general post office in Wilmington, New Castle
County, Delaware. Such notice shall be deemed to be given at the time of
mailing, except as otherwise provided in these by-laws. In addition, except as
otherwise required by law or these by-laws, notice need not be given of any
adjourned meeting other than by announcement at the meeting which is being
adjourned.
6.8. Waiver of Notice.
Whenever any notice is required to be given, a waiver thereof in writing, signed
by the person or persons entitled to the notice, whether before or after the
time stated therein, shall be deemed equivalent thereto. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice.
6.9. Voting of Stocks Owned by the Corporation.
The board of directors, the 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.
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6.10. Form of Records.
Any records maintained by the corporation in the regular course of its business,
including its stock ledger, books of account, and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape, photographs, microphotographs,
or any other information storage device, provided that the records so kept can
be converted into clearly legible form within a reasonable time. The corporation
shall so convert any records so kept upon the request of any person entitled to
inspect the same.
6.11. Amendment of By-Laws.
The board of directors shall have power to adopt, amend or repeal the by-laws at
any regular or special meeting of the directors. The stockholders shall also
have power to adopt, amend or repeal the by-laws at any annual or special
meeting, subject to compliance with the notice provisions provided in section
2.11.
6.12. Anti-Greenmail.
(a) Vote Required for Certain Acquisitions of Securities. Except as set forth in
Subsection (b) hereof, in addition to any affirmative vote of stockholders
required by any provision of law, the certificate of incorporation or by-laws of
the corporation, or any policy adopted by the board of directors, neither the
corporation nor any subsidiary shall knowingly effect any direct or indirect
purchase or other acquisition of any GM Equity Security of any class or classes
issued by the corporation at a price which is in excess of the highest Market
Price of such GM Equity Security on the largest principal national securities
exchange in the United States on which such security is listed for trading on
the date that the understanding to effect such transaction is entered into by
the corporation (whether or not such transaction is concluded or a written
agreement relating to such transaction is executed on such date, such date to be
conclusively established by determination of the board of directors), from any
Interested Person (i.e., any person who is the direct or indirect beneficial
owner of more than three percent (3%) of the aggregate voting power of the
Voting Shares of the corporation) who has beneficially owned such GM Equity
Securities for less than two years prior to such date, without the affirmative
vote of the holders of the Voting Shares which represent at least a majority of
the aggregate voting power of the corporation, excluding Voting Shares
beneficially owned by such Interested Person, voting together as a single class.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser percentage may be specified, by law or any
agreement with any national securities exchange, or otherwise.
(b) When A Vote Is Not Required. The provisions of Section (a) hereof shall
not be applicable with respect to:
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(i) any purchase, acquisition, redemption or exchange of GM Equity
Securities, the purchase, acquisition, redemption or exchange of which,
at the time any such transaction is entered into, is provided for in
the corporation's certificate of incorporation (including any
resolution or resolutions of the board of directors providing for the
issuance of Preferred Stock or Preference Stock by the corporation);
(ii) any purchase or other acquisition of GM Equity Securities made as
part of a tender or exchange offer by the corporation to purchase
securities of the same class made on the same terms to all holders of
such securities and complying with the applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations thereunder (or any successor provisions to
such Act, rules or regulations);
(iii) any purchase or acquisition of GM Equity Securities made pursuant
to an open market purchase program which has been approved by the board
of directors; or
(iv) any purchase or acquisition of GM Equity Securities made from, or
any purchase or acquisition of GM Equity Securities made pursuant to or
on behalf of, an employee benefit plan maintained by the corporation,
or any subsidiary or any trustee of, or fiduciary with respect to any
such plan when acting in such capacity.
(c) Interpretation of This By-Law. The board of directors shall have the
exclusive right and power to interpret the provisions of this by-law, including,
without limitation, the adoption of written definitions of terms used in this
by-law (any such definitions shall be filed with the Secretary, and such
definitions as may prevail shall be made available to any stockholder upon
written request); any such interpretation made in good faith shall be binding
and conclusive upon all holders of GM Equity Securities.
6.13. Gender Pronouns.
Whenever the masculine pronoun is used herein it shall be deemed to refer to
either the masculine or the feminine gender.
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DEFINITIONS OF CERTAIN TERMS
USED IN
AND
GUIDELINES FOR THE APPLICATION
OF
BY-LAW 2.12
OF
GENERAL MOTORS CORPORATION
Certain Definitions.
For 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
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.
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(vii) A "significant customer of the corporation and its subsidiaries"
shall mean a customer from which the Corporation and its subsidiaries
collectively in the last fiscal year of the Corporation received
payments in consideration for the products and services of the
Corporation and its subsidiaries which are in excess of three percent
(3%) of the consolidated gross revenues of the Corporation and its
subsidiaries during such fiscal year.
(viii) A "significant supplier of the corporation and its subsidiaries"
shall mean a supplier to which the Corporation and its subsidiaries
collectively in the last fiscal year of the Corporation made payments
in consideration for the supplier's products and services in excess of
three percent (3%) of the consolidated gross revenues of the
Corporation and its subsidiaries during such fiscal year.
(ix) The Corporation and its subsidiaries shall be deemed a
"significant customer of a company" if the Corporation and its
subsidiaries collectively were the direct source during such company's
last fiscal year of in excess of five percent (5%) of the gross
revenues which such company received for the sale of its products and
services during that year.
(x) The Corporation and its subsidiaries shall be deemed a "significant
supplier of a company" if the Corporation and its subsidiaries
collectively received in such company's last fiscal year payments from
such company in excess of five percent (5%) of the gross revenues which
such company received during that year for the sale of its products and
services.
(xi) A person shall be deemed to have "significant personal services
contract(s) with the corporation or its subsidiaries" if the fees and
other compensation received by the person pursuant to personal services
contract(s) with the Corporation or its subsidiaries exceeded or would
exceed five percent (5%) of his or her gross revenues during the last
calendar year.
(xii) A tax-exempt entity shall be deemed to receive "significant
contributions" from the Corporation or its subsidiaries if such
tax-exempt entity received during its last fiscal year, or expects to
receive during its current fiscal year, contributions from the
Corporation or its subsidiaries in excess of the lesser of either (A)
three percent (3%) of the consolidated gross revenues of the
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.
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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 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.
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(vi) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person
pursuant to Section 13(d)(3) of the Exchange Act, as in effect on
January 1, 1990.
(vii) "Subsidiary" shall mean any company of which the corporation
owns, directly or indirectly, (A) a majority of the outstanding shares
of equity securities, or (B) shares having a majority of the voting
power represented by all of the outstanding voting stock of such
company. For the purpose of determining whether a company is a
Subsidiary, the outstanding voting stock and shares of equity
securities thereof shall include unissued shares of which the
corporation is the Beneficial Owner but, except for the purpose of
determining whether a company is a Subsidiary for purposes of the
definition of Interested Person as used in By-Law Section 6.12, shall
not include any other shares which may be issuable pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, warrants or options, or otherwise, to any Person who
is not the corporation.
(viii) "Voting Shares" shall mean the outstanding shares of capital
stock of the corporation entitled to vote generally in the election of
directors.
vi
