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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
General Magic, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
370253 10 6
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(CUSIP Number)
Kimberly K. Hudolin, Esq.
General Motors Legal Staff
New Center One Building
Mail Code: 482-208-835
3031 West Grand Boulevard
Detroit, Michigan 48202
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 9, 1999
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of (S)(S)240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See (S)240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 370253 10 6 13D Page 2 of 5 Pages
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NAME OF REPORTING PERSON
1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY).
General Motors Corporation FEIN No. 38-0572515
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
WC
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
5 TO ITEMS 2(D) or 2(E)
[_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
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SOLE VOTING POWER
7
NUMBER OF 11,876,484
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
0
OWNED BY
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EACH SOLE DISPOSITIVE POWER
9
REPORTING 11,876,484
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
11,876,484
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS)
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
22.1%
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
CO
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The undersigned hereby amend their Schedule 13D Statement filed December
20, 1999 (the "Schedule 13D") relating to the Common Stock of General Magic,
Inc. Unless otherwise indicated, all capitalized terms used herein but not
defined herein shall have the same meaning as set forth in the Schedule 13D. The
purpose of this Amendment No. 1 is to file Exhibit 4 to the Schedule 13D.
Item 1. Security and Issuer
No material change.
Item 2. Identify and Background
No material change.
Item 3. Source and Amount of Funds or Other Consideration
No material change.
Item 4. Purpose of Transaction
No material change.
Item 5. Interest in Securities of the Issuer
No material change.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
No material change.
Item 7. Material to Be Filed as Exhibits
Exhibit 4 Letter Agreement dated as of December 9, 1999 between General
Magic, Inc. and General Motors Corporation regarding limitations
on the exercise of the Series G Convertible Preferred Stock and
the Warrant issued to General Motors.
3
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
GENERAL MOTORS CORPORATION
By: /s/ Thomas A. Gottschalk
------------------------
Name: Thomas A. Gottschalk
Title: Sr. Vice President and General
Counsel
Date: January 6, 2000
4
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EXHIBIT INDEX TO AMENDMENT NO. 1
Exhibit No.
Exhibit 4 Letter Agreement dated as of December 9, 1999 between General
Magic, Inc. and General Motors Corporation regarding limitations
on the exercise of the Series G Convertible Preferred Stock and
the Warrant issued to General Motors.
5
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Exhibit 4
General Motors Corporation
OnStar
1400 Stevenson Highway
Troy, Michigan 48083
As of December 9, 1999
General Magic, Inc.
420 N. Mary Avenue
Sunnyvale, CA 94086
Ladies and Gentlemen:
Reference is made to the Series G Preferred Stock and Warrant Purchase
Agreement, dated November 9, 1999 (the "Stock Purchase Agreement"), by and
between General Magic, Inc., a Delaware corporation (the "Company"), and General
Motors Corporation, a Delaware corporation ("General Motors"), by and through
its Onstar Division and the Warrant for the Purchase of Shares of Series G
Convertible Preferred Stock dated December 9, by and among the Company and
General Motors. All capitalized terms used in this letter agreement have the
meaning defined for them in the Stock Purchase Agreement unless otherwise
defined in this letter agreement.
This letter will confirm the agreement of the Company and General Motors as
follows:
1. Limitation on Number of Conversion Shares. Notwithstanding any
provision of the Stock Purchase Agreement, the Warrant or the Certificate of
Designations, General Motors shall not exercise, and will not permit any
subsequent transferee holding shares of the Series G Stock (a "Transferee") to
exercise, the right to convert shares of the Series G Stock into shares of the
Company's Common Stock to the extent that the shares of Common Stock issuable
upon conversion would exceed 19.99% of the outstanding shares of the Company's
Common Stock as of December 9, 1999 (the "Exchange Cap"), except that such
limitation shall not apply in the event that the Company (i) obtains the
approval of its stockholders as required by Rule 4460(i) (attached) and
applicable regulations of NASDAQ for issuance of Common Stock (or securities
convertible into or exercisable for Common Stock) in excess of the Exchange Cap
or (ii) obtains a written opinion from outside counsel to the Company that such
approval is not required, which opinion shall be reasonably satisfactory to
General Motors.
2. Limitation on Exercise of Warrant. Notwithstanding any provision of
the Warrant, General Motors shall not exercise, and will not permit any
Transferee to exercise, the Warrant unless the Company (i) obtains the approval
of its stockholders as required by Rule 4460(i) (attached) and applicable
regulations of NASDAQ for issuance of Common Stock (or securities convertible
into or exercisable for Common Stock) in excess of 19.99% of the outstanding
shares or voting power of the Company's Common Stock as of December 9, 1999 or
(ii) obtains a written opinion from outside counsel to the Company that such
approval is not required, which opinion shall be reasonably satisfactory to
General Motors.
3. Stockholder Approval. The Company shall, at its 2000 Annual Meeting of
Stockholders (or any Special Meeting of Stockholders called for other purposes
prior to such
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General Magic, Inc.
December 9, 1999
Annual Meeting), seek and use reasonable best efforts to obtain stockholder
approval, as required by the applicable rules and regulations of NASDAQ, for the
issuance by the Company of (a) that portion of the Series G Stock that may not
be converted without exceeding the Exchange Cap, (b) the Warrant and (c) shares
of Common Stock (or securities convertible into or exercisable for Common Stock)
issuable upon conversion of such portion of the Series G Stock or upon exercise
of the Warrant.
4. Failure to Obtain Stockholder Approval or Opinion. In the event that
the Company shall fail to obtain the approval of its stockholders as set forth
in paragraph 3 above or an opinion of counsel as contemplated by paragraphs 1
and 2 above, the Company shall, in full satisfaction of any claims of General
Motors that may arise in connection with such failure under this side letter
agreement, the Stock Purchase Agreement, the Warrant, the Certificate of
Designations, or any related documents, remit to General Motors $7 million to be
distributed, at the sole option of the Company, in one of the following two
forms: (i) the Company may pay (or cause to be paid) to General Motors $7
million in cash, or (ii) the Company may pay (or cause to be paid) to General
Motors $3.5 million in cash and credit $3.5 million against amounts then owed or
next owing to the Company, including amounts due or owing under or in connection
with the Development and License Agreement dated effective November 9, 1999, by
and among the Company and General Motors. In the event that the Company shall
fail to obtain such stockholder approval or such opinion of counsel, General
Motors shall return to the Company for cancellation (i) the Warrant and (ii) a
stock certificate or stock certificates (duly endorsed or accompanied by duly
executed stock powers) representing that portion of the Series G Stock that may
not be converted without exceeding the Exchange Cap.
5. Governing Law. This letter agreement shall be construed and enforced
in accordance with, and governed by, the internal laws of the State of
California, without regard to its conflict of laws rules.
6. Counterparts. This letter agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Very truly yours,
GENERAL MOTORS CORPORATION
by and through its Onstar Division
By: /s/ F. H. Cooke
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Name: F. H. Cooke
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Title: Executive Director
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Agreed and Accepted:
GENERAL MAGIC, INC.
By: /s/ Steven Markman
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Name: Steven Markman
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Title: Chairman, CEO and President
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Attachment to Letter Agreement dated December 9, 1999
NASD Rule 4460(i)
(i) Shareholder Approval
(1) Each NNM issuer shall require shareholder approval of a plan or
arrangement under subparagraph (A) below, or prior to the issuance of designated
securities under subparagraph (B), (C), or (D) below:
(A) when a stock option or purchase plan is to be established or other
arrangement made pursuant to which stock may be acquired by officers or
directors, except for warrants or rights issued generally to security
holders of the company or broadly based plans or arrangements including
other employees (e.g. ESOPs). In a case where the shares are issued to a
person not previously employed by the company, as an inducement essential
to the individual's entering into an employment contract with the company,
shareholder approval will generally not be required. The establishment of a
plan or arrangement under which the amount of securities which may be
issued does not exceed the lesser of 1% of the number of shares of common
stock, 1% of the voting power outstanding, or 25,000 shares will not
generally require shareholder approval;
(B) when the issuance will result in a change of control of the
issuer;
(C) in connection with the acquisition of the stock or assets of
another company if:
(i) any director, officer or substantial shareholder of the
issuer has a 5% or greater interest (or such persons collectively have
a 10% or greater interest), directly or indirectly, in the company or
assets to be acquired or in the consideration to be paid in the
transaction or series of related transactions and the present or
potential issuance of common stock, or securities convertible into or
exercisable for common stock, could result in an increase in
outstanding common shares or voting power of 5% or more; or
(ii) where, due to the present or potential issuance of common
stock, or securities convertible into or exercisable for common stock,
other than a public offering for cash:
a. the common stock has or will have upon issuance voting
power equal to or in excess of 20% of the voting power
outstanding before the issuance of stock or securities
convertible into or exercisable for common stock; or
b. the number of shares of common stock to be issued is or
will be equal to or in excess of 20% of the number of shares or
common stock outstanding before the issuance of the stock or
securities; or
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(D) in connection with a transaction other than a public offering
involving:
(i) the sale or issuance by the issuer of common stock (or
securities convertible into or exercisable for common stock) at a
price less than the greater of book or market value which together
with sales by officers, directors or substantial shareholders of the
company equals 20% or more of common stock or 20% or more of the
voting power outstanding before the issuance; or
(ii) the sale or issuance by the company of common stock (or
securities convertible into or exercisable common stock) equal to 20%
or more of the common stock or 20% or more of the voting power
outstanding before the issuance for less than the greater of book or
market value of the stock.
(2) Exceptions may be made upon application to Nasdaq when:
(A) the delay in securing stockholder approval would seriously
jeopardize the financial viability of the enterprise; and
(B) reliance by the company on this exception is expressly approved by
the Audit Committee or a comparable body of the Board of Directors.
A company relying on this exception must mail to all shareholders not
later than ten days before issuance of the securities a letter alerting
them to its omission to seek the shareholder approval that would otherwise
be required and indicating that the Audit Committee of the Board or a
comparable body has expressly approved the exception.
(3) Only shares actually issued and outstanding (excluding treasury shares
or shares held by a subsidiary) are to be used in making any calculation
provided for in this paragraph (i). Unissued shares reserved for issuance upon
conversion of securities or upon exercise of options or warrants will not be
regarded as outstanding.
(4) Voting power outstanding as used in this Rule refers to the aggregate
number of votes which may be cast by holders of those securities outstanding
which entitle the holders thereof to vote generally on all matters submitted to
the company's security holders for a vote.
(5) An interest consisting of less than either 5% of the number of shares
of common stock or 5% of the voting power outstanding of an issuer or party
shall not be considered a substantial interest or cause the holder of such an
interest to be regarded as a substantial security holder.
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(6) Where shareholder approval is required, the minimum vote which will
constitute shareholder approval shall be a majority of the total votes cast on
the proposal in person or by proxy.
